Solution of the Southwestern Private Land Claim Problem

Summary:
“Solution of the Southwestern Private Land Claim Problem” is the title of Chapter Four, Book I,  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.

Solution of the Southwestern Private Land Claim Problem

by J. J. Bowden

Notwithstanding the policy[1]of the United States that it would never prosecute a war for the acquisition of territory, President James K. Polk, following the Declara­tion of War against Mexico on May 13, 1846, formulated a plan looking forward to the speedy defeat of the enemy and acquisition of “California, New Mexico, and perhaps some others of the Northern Provinces of Mexico whenever a peace was made.”[2] Under this plan, Colonel Stephen Watts Kearny, Commander of the Army of the West, was ordered to seize Santa Fe, and if he thought he could reach California before winter set in, to proceed to the coast and assist in its conquest. By confidential orders dated June 3, 1846,[3] Secretary of War W. L. Marcy instructed Kearny to establish temporary civil governments in New Mexico and California following their conquest and assure their inhabitants that they would have the same rights as citizens of other Federal Territories. Kearny, following the bloodless conquest of Santa Fe on August 18, 1846, issued a proclamation,[4] in which he instructed the New Mexicans to surrender their arms, and, in return, promised to protect them in their “person, lives and property.” This proclamation, which was in accord with modern international law,[5]had a quieting effect upon the inhabitants of the Southwest, and it was not long before local opposition to the occupation of the region by the United States ceased.

On September 22, 1846, Kearny established a civil government for the conquered territory, and promulgated a code for its management.[6] The Kearny Code create the office of Register of Lands and directed every person claiming land by virtue of a Spanish or Mexican grant to file his title papers in that office. Persons who had no written evidence of title were to submit an affidavit with­in five years under penalty of forfeiture, showing the extent of the claim, how much land was under actual culti­vation and habitation by the claimant, and the length of time the land had been held. The Register, in turn, was to submit an abstract of the claims to the Commissioner of the General Land Office once a year commencing January 1, 1848.

Two years later, hostilities between the two neighbors ended with the signing of the Treaty of Guadalupe Hidalgo,[7]which guaranteed the inhabitants of the ceded territory that they would be “protected in the free en­joyment of their liberty and property.” Article X of the treaty required the United States to respect all grants made by the Mexican Government within areas formerly owned by Mexico to the extent that they would have been recog­nized by Mexico had sovereignty not charged and extended the time for the fulfillment of any conditions which had not been satisfied as a result of the hostilities between Texas and Mexico. The Senate found these provisions to be so objectionable that the entire article was eliminated before it ratified the treaty. When the revised treaty was returned to Mexico for ratification, it was accompanied by a protocol[8] dated March 18, 1848 from Secretary of State James Buchanan to the Mexican Minister of Foreign Relations, explaining the objections to the suppressed article of the treaty and stating that the “treaty provides amply and specifically in its 8th and 9th articles for the security of property of every kind belonging to Mexicans …” He stated that the deletion of Article X was not intended to destroy any legitimate titles in the ceded area and merely refused to revive extinct concessions. He also pointed out that the public lands located in Texas belonged to that State, and the United States had no power over their dis­position, nor could it change the conditions already made.[9] Mexico accepted the explanation, and ratifications were exchanged on May 30, 1848. The American courts, in a long line of decisions, have held that the United States is obligated, under the Treaty of Guadalupe Hidalgo, to inviolably respect “bona fide Spanish and Mexican land grants in Texas,[10] New Mexico,[11] Arizona[12] and California.[13]

A serious dispute over the location of the boundary defined in Article V of the Treaty of Guadalupe Hidalgo finally forced the United States to acquire additional land from Mexico. The purchase, which is generally known as the Gadsden Purchase, was concluded by treaty dated December 30, 1853.[14]Article V of this treaty incorporated by reference the 8th and 9th Articles of the Treaty of Guadalupe Hidalgo, in order to protect all “rights of persons and property.” However, Article VI of the treaty provided that no grant within the Gadsden Purchase would be considered valid or recognized which had not been “1ocated and duly recorded in the Archives of Mexico.”

Notwithstanding its treaty obligations, the United States took no immediate steps to provide a means to secure the confirmation of private land claims in the Southwest. However, the Pueblo Indians of New Mexico, unlike the Indians of California, continuously protested, and requested the Indian Agent to protect them from the encroachment of non-Indians upon the lands which they had always possessed and allegedly had been “formally and legally granted to them.”[15] The owners of Spanish and Mexican grants, on the other hand, apparently felt secure once having registered [16] their titles under the Kearny Code, since the Treaty of Guadalupe Hidalgo guaranteed that their claims would be inviolably respected. This, of course, was consistent with the theory which had been advanced by Senator Thomas Hart Benton. However, following the repudiation of the registra­tion provisions of the Kearny Code by the New Mexico Legis­lature under the Act of July 14, 1851,[17]grant owners became apprehensive and also began petitioning Congress, asking for legislation under which they could secure the confirmation of their titles.

The matter was finally brought to a head when Secretary of Interior Robert McClelland attached the reports of Indian Agent E. A. Graves and Commissioner of the General Land Office John Wilson to his Annual Report of 1853.[18] Graves’ report,[19] in discussing the problems con­fronting him, stated:

These (Pueblo) Indians are half civilized, and live in villages or pueblos; from which they derive the1r names. These Indians claim the soil upon which they live and cultivate, in their own right in fee simple, and most unquestionably have a clear right to so claim and hold them. Their grants are from the Spanish and Mexican governments and are the oldest and best in the country, many of them having been derived from the Spanish government from one to two hundred years ago. The Indians, however, complain that the Mexicans are continually making encroach­ments upon their grants. I would, with deference, suggest that some steps be taken at an early day for the proper ascertaining and defining of the actual boundaries of their grants or pueblos in order that punishment might be inflicted on those who trespass upon their rights, and also to defend the boundaries between different pueblos or villages, as continued disputes are arising between the Pueblo Indians and Mexicans as to where the true boundaries are and occasionally between different pueblos or villages —though this is seldom the case —otherwise strife and bloodshed will grow out of these conten­tions. These Indians, by conduct, merit the attention of the government, and should receive its fostering care and watchfulness.

Wilson reported: [20]

The expediency and propriety of early action for the extension of the land system over the Territories of New Mexico and Utah, etc., is suggested and recom­mended. The population of those Territories is constantly increasing, and no doubt many settlers are improving lands belonging to the government, without the possibility of obtaining titles for them under existing legislation. To relieve this state of things, and to secure bona fide holders in their possessions, without which their energies will be checked and the prosperity of the Territories pre­vented, it is suggested that proper surveying dis­tricts be established and a commission instituted, to ascertain and report to Congress this present condition of titles therein; that a Surveyor General be appointed for each of those districts, with authority to survey and locate such of the claims therein as the Commissioners shall deem valid, and that he be authorized to have the residue of the land surveyed according to existing laws, or on such plan as shall appear best adapted to the topography of the country, to be approved of, however, by the Secretary of Interior before adoption. The nature and extent of the tenures by which the Pueblo or civilized Indians of New Mexico hold their lands, seem to be but little understood, and hence legislation on the subject, without sufficient information, might lead to confusion and conflict of an endless and harassing nature.

Realizing New Mexico’s urgent need for legislation to pro­tect the diversified needs of its residents, President Franklin Pierce, in his message to Congress,[21]recommended the extension of the public land system over the Terri­tories of Utah and New Mexico with such modifications as their peculiarities might require.

Meanwhile, the International Boundary Dispute, which had arisen over the interpretation of Article V of the Treaty of Guadalupe Hidalgo,[22] had caused the United States to institute negotiations with Mexico for the pur­chase of additional territory from Mexico. On December 30, 1853, the Gadsden Treaty[23] was signed by the United States and Mexico, whereby Mexico, for ten million dollars, ceded to the United States a strip of land containing 29,142,400 acres located south of the Gila River in New Mexico and Arizona. Article VI of the Gadsden Treaty provides:

No grant of land within the territory ceded by the first Article of this treaty bearing date subsequent to the day —twenty-fifth of September —when the minister and subscriber to this treaty on the part of the United States, proposed to the Government of Mexico to terminate the question of boundary, will be considered valid or be recognized by the United States, or will any grant made previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico.

This territory was annexed to New Mexico by the Act of August 4, 1854.[24] The acquisition of this additional area, which contained a number of private land claims, further emphasized the necessity of establishing a procedure for the adjudication and confirmation of valid land claims in the Southwest.

Since the Board of Commissioners’ procedure for examining private land claims in California had met with so much criticism, Congress sought an alternate method of solving the problem in the Southwest. Congress briefly con­sidered the suggestion[25] advanced by California’s governor, John Begler, that the validity of such claims be adjudicated in the federal courts; however, it was realized that the three territorial district courts, which had jurisdiction over the entire Southwest and whose judges rode circuit and also served as Judges of the New Mexico Supreme Court, were too busy to take on the additional responsibility. There­fore, Congress reasoned that, since the most difficult problems encountered in connection with the examination of Spanish and Mexican grants involved boundaries, the Sur­veyor General [26]was the logical official to handle the matter. On June 19, 1854 a bill to establish the office of Surveyor General of New Mexico, Kansas and Nebraska, to grant donations to actual settlers, and for other purposes, was read twice in the House of Representatives and referred to its Committee on Private Land Claims.[27]Eleven days later the Committee reported the bill back to the House without amendment and stated that it was identical to a bill which had passed the Senate except for the addition of the provision which created land offices and surveyors general for the Territories of Kansas and Nebraska. There being no objection, the Committee of the Whole proceeded to consider the bill. It was read a third time and passed.[28]The bill was approved and signed by President Pierce on July 22, 1854.[29] The act [30] created the office of Surveyor General of New Mexico and extended the operation of the public land laws over the territory. A quarter section of land was donated to every white male citizen of the United States or white male over 21 years of age who declared his intention to become a citizen and who resided there prior to January 1, 1853, and also granted a like amount to each white male citizen of the United States or male over 21 years of age who declared his intention of becoming a citizen who might settle in New Mexico between January 1, 1853 and January 1, 1858, on condition of settlement and cultivation for a period of four years. Section 8 of this Act provides:

… it shall be the duty of the surveyor-general, under such instructions as may be given by the Secretary of the Interior, to ascertain the origin, nature, character and extent of all claims to land under the laws, usages, and customs of Spain and Mexico; and for this purpose, may issue notices, summon witnesses, administer oaths, and do and perform all other necessary acts in the premises. He shall make a full report on all such claims as originating before the cession of the Territory to the United States by the Treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the various grades of title, with his decision as to the validity or invalidity of each of the same under the laws, usages, and customs of the country before its cession to the United States; and shall also make a report in regard to all pueblos existing in the Territory, showing the extent and locality of each, stating the number of inhabitants in the said pueblos, respectively, and the nature of their titles to the land. Such report to be made according to the form which may be prescribed by the Secretary of the Interior; which report shall be laid before Congress by the Secretary of the Interior for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty of eighteen hundred and forty-eight between the United States and Mexico; and, until the final action of Congress on such claims, all lands covered thereby shall be reserved from sale or other disposal by the Government, and shall not be subjected to the donations granted by the previous provisions of this act.

William Pelham, a former Surveyor General of Arkansas, was appointed by President Pierce as first Surveyor General of New Mexico on August 1, 1854. Shortly before his departure for Santa Fe from Washington, D. C., he received detailed instructions from Commissioner John Wilson pertaining to his duties.[31] He was advised that the act of July 22, 1854 charged him with the responsibility of preparing a faithful report of all the land titles in New Mexico which had their origin before the United States succeeded to the sovereignty of the country to enable Congress to make a just and proper “discrimination between such as are bona fide and shall be confirmed and such as are fraudulent, or otherwise destitute of merit, and ought to be rejected. His attention was called to the fact that the terms employed in the treaty respecting the recognition of private land claims in substance were the same as those used in the Treaty of 1803, by which France ceded Louisiana to the United States, and, therefore, he was to be guided by the “enlightened decisions, and the principles therein developed, of the Supreme Court of the United States upon the titles that were based upon the treaty of cession, and the laws of Congress upon the subject. Continuing, Wilson stated:

Among the “necessary acts” contemplated by the law, and required of you, is that you shall first, acquaint yourself with the land system of Spain as applied to her ultramarine possessions, the general features of which are found modified, of course, by local requirements and usages in the former provinces and dependencies of that monarchy on this continent. For this purpose you must examine the laws of Spain, the royalty ordinances, decrees, and regulations, as collected in White’s Recopilación, 2 volumes. By the Acts of Congress, approved 26th May, 1824; 23rd May, 1828; and 17th June, 1844 (United States Statutes at Large, Vol. 4, Page 51, Chap. 173, Page 284, Chap. 70; and Vol. 5, Page 676, Chap. 95), the United States District Courts were opened for the examination and adjudication of foreign titles; numerous cases on appeal under these laws, and other cases on writs of error, in which actions on ejectment in the courts below had been in­stituted, were brought before the Supreme Court of the United States, where the rights of property under inceptive and imperfect titles which originated under the Spanish system have been thoroughly examined and discussed with eminent ability.

Next, he was directed to obtain all documents from the Spanish Archives relating to land grants, proceed at once to arrange and classify them by order of date. Such doc­uments were to be bound and kept in a safe place. In regard to the procedures to be followed by Pelham, Wilson stated:

You will commence your session by giving proper public notice of the same in a newspaper of the largest circulation in the English and Spanish languages, and will make known your readiness to receive notice and testimony In support of the land claims of individuals, derived before the change of government. You will require claimants in every case, and give public notice to that effect, to file a written notice setting forth the name of “present claimant,” name of “original claimant,” nature of claim, whether enchoate or perfect, its date, from what authority the original title was derived, with a reference to the evidence of the power and authority under which the granting office may have acted, quantity claimed, locality, notice and extent of conflicting claims, if any, with a reference to the documentary evidence and testimony relied upon to establish the claim and to show a transfer of right from the “original grantee” to “present claimant.”

You will also require of every claimant an authenticated plat of survey, if a survey has been executed, or other evidence, showing the precise locality and extent of the tract claimed. This is indispensable in order to avoid any doubt hereafter in reserving from sale, as contemplated by law, the particular tract or parcel of land for which a claim may be duly filed, or in consummating the title to the same hereafter, in the event of a final confirmation . . .

You will take care to guard the public against fraudulent or ante-date claims, and will bring the title papers to the test of the genuine signatures, which you should collect of the granting officers, as well as to the test of official registers or abstracts which may exist of the titles issued by the granting officers. In all cases, of course, the original title papers are to be produced or loss accounted for, and where copies are presented they must be authenticated, and your report should also state the precise character of the papers acted upon by you, whether originals or otherwise. Where the claim may be presented by a party as “present claimant” in right of another, you must be satis­fied that the deraignment of title is complete, otherwise, the entry and your decision should be in favor of the “legal representatives” of the original grantee…

In the case of any town lot, farm lot or pas­ture lots, held under a grant from any corpora­tion or town, to which land may be granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, or in the case of any city, town, or village existed at the time possession was taken of New Mexico by the authorities of the United States, the claim to the same may be presented to the corporate authorities, or where the land on which the said city, town or village was originally granted to an individual, the claim may be presented by or in the name of such individual, and the fact being proved to you of the existence of such city, town, or village at the period when the United States took possession, may be considered by you as prima facie evidence of a grant to such corporation, or to the individuals under whom the lot-holders claim and where any city, town, or village shall be in existence at the passage of the Act of 22nd July, 1854, the claim for the land embraced within the limits of the same may be made and proved up before you by the corporate authority of the said city, town or village. Such is the principle sanctioned by the Act of 2nd March, 1851, for the adjudication of Spanish and Mexican claims in California, and I think its application to and adoption proper in regard to claims in New Mexico . . .

It will be your business to collect data from the records and other authentic sources relative to the pueblos, so that you will enable Congress to understand the matter fully and legislate in such a manner as will do justice to all concerned…

It is obligatory on the Government of the United States to deal with the private land titles and the “Pueblos” precisely as Mexico would have done had the sovereignty not changed. We are bound to recognize all titles, as she would have done, to go that far, and no further. This is the principle which you will bear in mind in acting upon these important concerns.

Secretary of Interior McClelland approved the instructions on August 25, 1854.

Pelham arrived in Santa Fe on December 28, 1854 after a long and arduous trip via Port Lavaca and El Paso, Texas. He was somewhat disappointed with the primitive conditions he found there. His office was located in a typical native home with a dirt floor. The walls had to be covered with canvas, in order to protect his papers from the dirt of the adobe walls. The expense of equipping and carpeting his office severely taxed his meager budget. [32]

When Pelham asked Governor David Meriwether to furnish him with the Spanish Archives which related to land grants, he declined on the ground that their selec­tion from the large amount of papers comprising the pub­lic archives would involve an immense amount of labor and a heavy expenditure, which he was not authorized to incur. However, he permitted Pelham to remove the archives[33]to his office, where they were examined and separated. There were 1,715 documents[34] pertaining to land, which were arranged and classified in a systematic form. However, he could not bind them as instructed due to their different shapes and sizes. Some were written on large sheets, others on half sheets and some on mere scraps of foolscap which could never be bound in any convenient form.[35]

Since New Mexico had been occupied for more than two occupied for more than two and a half centuries by an agricultural society, the best portions of the territory along its rivers and suscep­tible to irrigation had long since been reduced to private ownership under Spanish and Mexican grants. On January 18, 1855, Pelham issued a notice to the inhabitants of New Mexico in which he requested all persons who claimed land in New Mexico before the Treaty of Guadalupe Hidalgo to sub­mit their claims to him as soon as possible.[36] In his Annual Report[37] dated September 30, 1855 Pelham reported that only fifteen private land claims had been filed for examination and adjudication. He also noted that the grants made by the Spanish government to five Pueblos[38] had been filed, examined, and approved. Continuing, he related:

The difficulties and expense to which parties filing claims in this office are subjected will account for the limited number which have been filed; and I respectfully recommend further legislation on the subject, as the present law has utterly failed to secure the object for which it was intended.

In an effort to expedite the solution of the land grant problem, Pelham took the position that the language of Section 8 of the Act o£ July 22, 1854, which provided that the Surveyor General should “ascertain the origin, nature, character, and extent of all claims,” authorized him to tour the territory for the purpose of investigating pri­vate land claims. However, Wilson, by instructions[39] dated October 4, 1855, restricted the powers of the Surveyor General to the investigation of claims voluntarily brought before him. Thus, the Surveyor General was reduced to a mere passive agent of the government, to report only upon such claims as claimants might wish to bring before him. Pelham and his successors pointed out that the instructions of October 5, 1855 severely limited their operations, as the owners of valid claims were unwilling to pay the expense of a trial and survey, since they felt adequately protected under the provisions of the Treaty of Guadalupe Hidalgo, and only those having doubtful claims were willing to risk such expenses in hope of having their titles sanctioned by Congress. Therefore, they requested at least the appropriation of sufficient funds to pay the expense of summoning witnesses, serving notices, and performing other functions necessary to efficiently accomplish the purpose intended by the law.

Pelham’s 1856 Annual Report[40]showed that, while a total of 31 private land claims had been filed, he had acted on only three.[41] In addition to the three private land claims, he recommended the prompt confirmation of eleven additional pueblos’ claims.[42] In his Annual Report for 1856,[43] Commissioner of the General Land Office Thomas A. Hendricks stated that the examination of private land claims in New Mexico had been delayed as a result of “the apathy of the claimants, and their neglect to present the necessary testimony.” Continuing, he stated:

From the advices received at this office from the Surveyor-General of New Mexico and other sources, it is evident individuals claiming land under former governments before the Treaty of Guadalupe Hidalgo of 1848, are very adverse to respond to the call made on them by the Surveyor-General’s notice of January 18, 1855, to produce the evidences of their claims to his office at Santa Fe; some fear of losing the evidence of their titles, inspired, it is supposed, by designing individuals.

In many instances, the Pueblo Indians have been deterred from filing their title papers with the Surveyor-General, in the apprehension they would never again get possession of them.

Others, conscious of an indisputable possessory right of landed estates, feel perfect security on the subject, and do not care to exhibit, much less file, their title papers, for the purpose of enabling the Surveyor-General to report upon the claims to Congress for confirmation under the Act of July 22, 1854. This tardiness in complying with the requirements under the law delays the action on the part of Congress, and of course will cause cor­responding delay in the survey of the claims, and restrict the field of operation in New Mexico. It interferes also with donation claimants under the law of July 22, 1854.

To obviate the difficulty, it is suggested that a period of time be prescribed by law within which claimants shall file their claims, and that a sum­mary system for their final settlement, on principles of justice, be provided by Congress. There existing no authority of law for the survey of private claims, nor of the pueblos in New Mexico, until the same shall have been acted upon by the Surveyor General, reported to Congress and finally confirmed, all the executives can do under the present circumstances, is to exclude them from sectional subdivision, in the gradual extension of the lines of the public surveys.

Pelham’s 1857 Annual Report[44]  shows that as of September 30, 1857, a total of 57 private land claims had been filed in his office, of which 19 had been examined and approved.[45]He also reiterated his previous recommendation that a Board of Commissioners be established to investigate and decide the validity of private land claims in New Mexico. He stated that “unless this board is established, or further legislation is had on the subject, it will be impossible to ascertain which are undisputed public lands and which are private property . . . .”

On May 4, 1858 Congressman Blair of Missouri, who was a member of the House’s Committee on Private Land Claims, reported[46] on a bill which provided for the creation of a Board of Commissioners to ascertain and settle private land claims in New Mexico. The bill was read twice and referred to the Committee of the Whole. When it came up for hearing, Congressman Marshall of Kentucky, in debate, stated: [47]

I am as much opposed to it as any bill that I have ever known to come before Congress. It proposes nothing at all but a repetition in New Mexico of what we have done in California. They who have served in the House, and whose attention has been called to the board instituted for California, must have been struck with the fact that this bill is a compendium of all that we have ever passed upon that subject. My experience convinces me that by the passage of such a bill as this, we shall only provide litigation for these people of a foreign race whom we have taken under our government, and whose rights we have secured by treaty. If we intend to protect those rights, this is the worst mode in which we can set about the business.

 Look at the provisions of this bill. You institute a board of land commissioners, and require every man having a private land title in New Mexico, to bring his title before this board. If you refer to the treaty of Guadalupe Hidalgo, you will see that you have secured to every man in New Mexico, who holds a title, the right to it, whether it be perfect or inchoate, although he should never choose to exhibit it to your board. What is the object of requiring him to come before your board? You say, in order that you may determine what is private and what is public land. That may be the purpose; it will not be the only effect. When this thing was first done to California, Colonel Benton opposed it. We have now no excuse for following the example set then, with the history of California before our eyes….

The New Mexican has a right to his land by treaty; but the effect of this bill is to embark him on a boundless sea of litigation where no man’s title is safe, and where no man can obtain his title with­out years of toil and risk; for, after the board of commissioners have decided against the government, the district attorney may then carry it to the district court of the United States; after it has been carried through the district court, it will come to the Supreme Court, where, with luck, one may obtain a decision in ten years. By that time, some man who has “squatted” upon the land, under the pretense that it is public land (the original holder not having been able to show a patent), will contest the title of the holder of the old grant, and this new litigation must be undertaken; so with every man who may see fit to set up a claim for the land; and the Commissioner of the General Land Office cannot give the patent until the litigation is wholly concluded. When will that take place? Possibly in the second or third generation…

. . . Is this the least expensive mode by which their title can be ascertained? If a man wants his title to his land established by testimony, what is to prevent the territorial court from establishing it? What is to prevent the territorial legislature from enacting a simple process for ascertaining the boundary of concessions, such as is adopted in many of the western states –let a surveyor go upon the ground and run the lines, in the presence of wit­nesses, and declare this processioning shall be evidence of title after its registration, undisputed, for a certain time? Why force the holder, in every particular instance, to prove his title before a board of commissioners? Why compel everyone to resort to this most expensive mode of litigation? Why not permit the territorial legislature to establish a simple process by which the matter may come before the territorial courts for adjudication…?

… I ask you to observe that you are making a new corps of officers; three commissioners, salaries $10,000; attorneys, clerks, agents, &c. You are sending to New Mexico a whole corps of federal officers for no other conceivable purpose than to superintend the best mode by which the squatter can cheat the real holder out of his title. I do not want to detain the committee; I have done my duty in calling the attention of the committee to the facts. This whole bill ought to be killed. We ought not to repeat the experiment of this bill.

The debate[48] continued with Representative Sandidge of Louisiana making the following argument in support of the bill:

I imagine the member from Kentucky and myself have in view a like object; and that is, to enable the people of the Territory of New Mexico to establish, in the quickest time and with the least expense to them, the right to their lands. That I take to be the gentleman’s desire; certainly it is mine; and has been that of the Committee on Private Land Claims….

… If that gentleman had lived, as I have done, in a state where Spanish and French titles have not only been held in abeyance for ten, but for fifty years, he would have known what difficulties the people of New Mexico are likely to suffer unless something of this kind is done for them by Congress . . .

Continuing, Congressman Sandidge stated that the only way that New Mexico could be protected from what had taken place in Louisiana, Missouri, and other states was to require land grant owners to “make some showing before some authority” of their claims, to have the claims marked upon the township plats, and to have the lands covered thereby reserved until acted upon by Congress or some other tribunal created by it. He pointed out that many claims located in his state that generally were recognized as being perfect and protected by treaty had been rendered practi­cally worthless as a result of Congress’s failure to con­firm them. He contended that the bill provided the shortest way for arriving at the desired end. In connection with the procedure then in existence in New Mexico, he stated:

At present, the surveyor general alone constitutes the board of commissioners; and we have thought it desirable, very desirable, to change that system, for this reason: the people of New Mexico are not quite willing to have their titles decided upon by one man, who, besides adjudicating, is required to go into the field and locate them.

Congressman Marshall of Kentucky asserted that, in his opinion, the eighth section of the Act of July 22, 1854 provided a better procedure than the one contemplated by the bill. He called attention to the fact that:

. . . the surveyor general has no right, under this law, to determine a man’s title. He has no right to do anything at all except to ascertain whether a private title overlies a particular piece of land; and when he ascertains that fact he reports it here, and all that we do is to· vouchsafe to the proprietor of such title, that until we ascer­tain here in Congress whether it ought to be confirmed or not, the government shall not dispose of the land.. Now you are instituting quite another operation.

 Sandidge’s reply to Marshall was that the bill was designed for one purpose —to give satisfaction to the people of New Mexico who were “more willing to trust their claims in the hands of a regular board of commissioners than in the hands of one man.” In closing, he argued that the claims would be settled sooner if brought before a board with right of appeal to the courts than if the claimants were compelled to have their grants confirmed by Congress.

Congressman Taylor of Louisiana also speaking in favor of the bill stated:

Mr. Chairman, I am a citizen of Louisiana, and I happen to be familiar with the character of the titles that existed in the Territory of Louisiana at the time of its cession. These titles stood very much upon the same footing with the titles which now exist in the Territory of New Mexico. The neces­sity which exists now with reference to New Mexico existed with reference to Louisiana. The Congress of the United States failed to discharge the duties which they owed to the people of the state, and Louisiana suffered for years, and suffers today, because of the failure to do that at once which this act proposes now to have done with reference to New Mexico. When Louisiana was ceded to the United States there was a treaty which guaranteed to its inhabitants the possession of their property. That treaty was of as solemn a character as the treaty of Guadalupe Hidalgo. That treaty has been again and again expounded by your courts. And what was the result? That rights of property within the Territory of Louisiana were undetermined, and that individuals whose rights had been guaranteed to them by the faith of the Government of the United States, were liable to be disquieted day after day and year after year by the operation of general laws of the United States, relating to lands of the United States. Persons whose rights were derived from the action of the prior government, were disturbed again and again by the interruptions of the class of persons to whom the gentleman from Kentucky referred as squatters, and they were dis­turbed, not because of legislation of this character, but because of the want of legislation of this character, or of the failure to carry it into effect.

Now, Mr. Chairman, what is the character of the titles to lands in New Mexico? They are divided into two classes. There are perfect grants, there are titles with respect to which the government had taken every necessary step, and which have become what is known under the Spanish law as perfect grants —titulas in forma; those titles are pro­tected by the treaty; the holders of them have standing in courts of justice, because their titles are legal titles. But a large proportion, a vast majority of the titles in existence in New Mexico are, as they were in Louisiana, of an entirely different kind; they are not titles that have been completed by the final action of the government; there has been no perfect grant; they are inchoate titles. Individuals are in possession of land which they had been permitted to enter upon by the government; they have remained in possession, and under the Government of Mexico they were not liable to be disturbed, because, under the usage of that government, they would have been permitted to remain there, and at a future day the govern­ment might complete their titles. The very fact of their taking possession, with the permission of the proper officer, gave them an equitable —a right which our laws do not recognize, but a right of such a character that it must be respected under the treaty, though it has no standing in a court of justice. And how is the obligation imposed on us by the treaty to be ful­filled?

A portion of these titles depend upon the political action of the government. That was had in reference to Louisiana, and that must be had again by Congress, if justice is to be done with respect to New Mexico. Now, sir, persons possessed of such claims, having no positive evidence of a title, such as to enable them to keep off trespassers, may, in the event of the passage of a preemption law, have their lands trespassed upon, and are liable to be dispossessed of them by the action of the land offices of the government. That occurred every day in Louisiana. The perfect grants needed no presentation. They were complete. The holders of them could assert their rights before a court of justice. But im­perfect titles had no standing in a court of justice; and until the passage of an act of Congress providing for their completion –in conformity with the usages of the government under which they had their origin the lands embraced in them might be sold as a part of the public domain.

Now, with respect to this Territory, Congress has already made provision that where claims are filed with the surveyor general, the titles shall be examined before the lands embraced in them can be exposed for sale. But this bill goes further, and provides that the Government of the United States shall proceed in the same manner that the Government of Mexico would have proceeded to complete these titles. The bill vests in a board of commissioners authority to examine and decide upon the claims presented on equitable principles in favor of the claimants, to give them the same effect as they would have received from the Mexican authorities. But that decision, whether for or against the claim, is subject to an appeal. It, however, marks out a course of action which will terminate, as far as the United States is concerned, all controversy in reference to a given claim within a limited time. If the bill goes into operation, these claims will be settled finally, and those persons holding claims under an imperfect title will know what they have to depend on. Unless some such provision is made, these lands will remain in the condition in which a portion of the lands in Louisiana remained for thirty or forty years, subject to be encroached upon by those who see fit to settle upon them under the pre-emption acts….

Continuing, Taylor noted that the language of the Treaty of Guadalupe Hidalgo which required the United States to respect property rights in the ceded area was similar to that contained in the treaty of 1803, and the Supreme Court repeatedly had held in connection with grants in the area covered by the later treaty, that complete and perfect titles were to be respected even if they were not presented to the commission. However, imperfect titles were not protected by the treaty automatically and they required further political action by the government to perfect them. Next, Representative Quitman of Mississippi took the floor and pointed out that although perfect grants in his state were protected by the Treaty of San Ildefonso, the government had strictly construed the words “shall be confirmed” in that treaty as requiring some future action by Congress before they could be recognized judicially. Congressman Reagan of Texas in rebuttal of Quitman’s statement advised the members of the house that perfect titles had been sus­tained by the courts of Texas and their decisions affirmed by the United States Supreme Court without any other legis­lative affirmance. At this point, it was noted that a bill was then pending in the house pertaining to the confirmation of a number of the ancient pueblo grants and the question was asked what necessitated their confirmation. Blair acknowledged that there would be none if the claims were perfect but explained that if they were not confirmed and a flaw was ever picked up in their title they would not prevail against any conflicting title given by the government. He also remarked that although the treaty guaranteed perfect grants, the government had a right to know where such grants were located.

At this point Congressman Branch of North Carolina spoke up stating:

Now, here is a country that seems to have been settled about two hundred years. The parties whose claims were included in the bill which passed the House this morning had held their lands, it was stated, for one hundred and sixty-­eight years. These people have lived in peace and quietness, and we have not heard of these bitter contests, these pressing exigencies, these dangers to their land titles, until this bill was brought in for the establishment of this board of commissioners. It seems to me that the only party here which is making diffi­culty with the people of New Mexico in regard to their land titles is the United States. On the one hand are certain private claimants, and on the other hand the United States, now the possessor, in virtue of its sovereignty over that country, of all lands not owned by individuals; and the object to be attained by this bill, and the only object, as far as I can perceive, is to ascer­tain, as far as we can, what lands are owned by private individuals, in order that the government surveyors may not run their lines over those lands, and produce confusion and difficulty between these claimants and purchasers under the government. That is the evil to be remedied, and that is the only evil, so far as I have heard in this debate, that is to be remedied at all.

Well, sir, the act organizing the territorial government of New Mexico provides a remedy for that evil. That act provides that parties claiming lands under grants from the Spanish Government may come in and prove their titles before the surveyor general, and thereupon the surveyor general is prohibited from having those lands surveyed and brought into market as lands belonging to the United States. That remedy is complete. It covers the entire case as far as I can see. It reaches every part of the evil that we are to remove; and I can perceive no need of establishing this board of commissioners —expensive machinery —on the pretense that we are thereby quieting land titles, when we have already provided means by which the only contestant of these claims can be satisfied, in the act organizing the territory.

In answer to this line of argument, Sandidge stated that while the claims presented to the surveyor general were noted on the official maps, the grants had never been surveyed and the exact locations of their boundaries were not known. Thus, it was impossible to know if a particular tract of land was public or private. Congressman Branch, stirred by this line of argument, inter­rupted angrily by shouting, “It is no part of the business of the government to do it. All we need do is ascertain, to the satisfaction of the government, what are private lands, in order that they may be left out of the public surveys!” New Mexico’s delegate, Miguel A. Otero, answered Branch stating,   “We want our land titles settled!” He asserted that the procedure then applicable to the problem was unsatisfactory since the New Mexicans were not willing to trust the settlement of their claims to a single indi­vidual and were willing to take whatever inconveniences might be involved under the system proposed by the bill under consideration. Branch responded to Otero’s plea by saying:

The point which has been made by the gentleman from New Mexico and by several other gentlemen in this debate is the unsatisfactory nature of the decisions made by the surveyor general and the definiteness of the decisions which will be made by this board of commissioners. Now, sir, I hold that these are matters which have been settled long ago —that they were settled in the treaty entered into between Mexico and the United States. It is only necessary to carry out the provisions of that treaty, and I submit that for that purpose the courts of the territory are by far the best tribunals —courts in which, I presume, the people of New Mexico have confidence; and in which they go, not before strangers, but before juries of their own countrymen, to contest their rights. I submit that this additional tribunal is not only unnecessary, but that it is not as good as that already provided; that it will not possess so much the confidence of the people of New Mexico as a tribunal which is to pass upon their rights….

Disgustedly, Otero replied that the United States courts in New Mexico had other things to attend to than adjudi­cating private land claims and, since the bill had been prepared by the Commissioner of the General Land Office and was recommended by both the Secretary of Interior and Surveyor General of New Mexico it should be seriously con­sidered.

Notwithstanding Otero’s admonishment, Congressman Faulkner, after learning that the creation of the proposed Board of Commissioners would cost the government “upwards of twenty thousand dollars a year” read the following ex­tract from the report of the Secretary of War:

By the last census, the total population of New Mexico, exclusive of wild Indians, was (in round numbers) sixty-one thousand souls, and its whole real estate was estimated at (in round numbers) $2,700,000 ..

To protect this small population, we are compelled to maintain a large military force at an annual expense nearly equal to half the value of the whole real estate of the Territory. Would it not be better to induce the inhabitants to abandon a country which seems hardly fit for the habitation of civilized men, by remunerating them for their property in money, or in lands situated in more favored regions? Even if the government paid for the property quintuple its value, it would still, merely on the score of economy, be largely the gainer by the transaction; and the troops now stationed in New Mexico would be available for the protection of other portions of our own and of the Mexican territory….

Faulkner’s suggestion that it might be best to give New Mexico back to the Indians broke up the meeting. Congress­man Greenwood noted that the bill was at a perfect stand­still and therefore he caused the bill to be laid aside in order that the remaining territorial business could be considered. There is no evidence that the House took any further action on the bill, and all hope of securing the prompt adjudication of private land claims in the Southwest died with it.

Since Congress refused to create a board of land commissioners for the Southwest, it proceeded to consider a bill which had been introduced by New Mexico’s territorial delegate, Miguel A. Otero, pertaining to the confirmation of the seventeen pueblo and three town grants which he had approved by Pelham in 1855 and 1856. On June 10, 1858, Senator Judah P. Benjamin reported that the House had passed a bill to confirm such pueblo and town claims and, at the request of the Interior Department, he was sponsoring the bill in the Senate. He described it as “a little bill in which the public are much interested” and would “prevent the loss of a great deal of public money.” He stated that there could be no debate upon it at all and, in discussing the background of the bill, noted that the whites were encroaching upon the pueblos and it was feared that war would break out between the two races unless the problem was solved promptly. Continuing, he noted that the Committee on Private Land Claims had examined the claims and was of the opinion that there could be no possible objection to the passage of the bill. After correcting two minor errors, the Senate passed the bill,[49] which was approved by the President on December 22, 1858.[50]In addition to confirming the seventeen pueblo grants and three town grants, the act directed the Commissioner of the General Land Office to have the tracts surveyed and cause a patent to be issued for lands as in ordinary cases to private individuals.

In the meantime, Pelham had investigated and reported upon twenty additional claims.[51] Ten of the claims were town or community grants, and ten covered grants to individuals. Notwithstanding the fact that the Town of Las Vegas Grant and Luis Maria Cabeza de Baca Grants covered the same land, Pelham approved both stating: “It is firmly believed that the land embraced in either of the two grants is lawfully separated from the public domain and entirely beyond the disposal of the general government, and that, in the absence of the one, the other would be a good and valid grant; but as this office has no power to decide between conflicting parties, they are referred to Congress for its final adjudication.[52] He also recommended that the Jornado del Muerto Grant be rejected on the ground that the grantees had not complied with the conditions upon which it had been made.

In response to the plea contained in Pelham’s annual report[53] for the year 1859 that speedy action be taken by Congress on all claims which had been reported to it, Otero introduced a bill on February 16, 1860, to confirm such claims.[54] The bill was read twice and referred to the Committee on Private Land Claims. The committee reported[55] that the claims had “received the most careful attention” which it could give them but the examination had been “con­fined entirely to what seemed to be the principal papers in each case.” It noted that it “has no time to scrutinize the evidence and the application as made by the surveyor general of the Spanish and Mexican laws and usages to each of them in detail.” Continuing, it stated:

Nor will it ever be in the power hereafter of this House to make such an examination as will be entirely satisfactory, should these claims be allowed to accumulate before Congress…. Heretofore and from the same cause which has embarrassed your committee, Congress has been compelled, in passing upon similar claims in Louisiana, Florida, and Missouri, to rely upon the report of the several boards of land com­missioners, and to confirm or reject, by whole classes, as recommended by commissioners.

In view of such action, the people of New Mexico are not at all pleased to be compelled by law to submit their muniments of title to one man, whose fitness for surveying is not supposed to qualify him particularly for discharging the duties of a judge, and yet whose opinions are expected to control, to a great extent, the final action of Congress upon their claims.

Because of this, and that Congress, if it shall reserve the right to itself of passing judgment must rely upon the report of an examining com­mission; your committee believed it very important that such a board should consist of at least three persons, whose recommendations, whether to Congress or to a judicial tribunal, would be entitled to command more respect than your Committee or the House can award to the report of the surveyor general alone.

But as Congress may not create such a board, and as it is due to the parties interested that the titles by which their lands are held should not be passed over to be settled by another generation, your committee have authorized me to report favorably (with one or two modifications) upon all the claims recommended for confirmation by the surveyor general; with the understanding that should the action of Congress conform to the views of the committee as to this board, the claims must be finally determined under the new law.

But for the gross injustice to the people of New Mexico, of delaying for an indefinite period action upon their claims, and the certainty that under existing arrangements Congress can never consider them under more favorable circumstances than at this time, your committee would not have been willing to report upon any of these individual claims for the reason first stated —-want of time to examine fully, and the unknown quantity of land claimed by most of the parties. This last difficulty cannot be a survey of the land and that, it is presumed, will not be ordered by Congress, in advance of a recognition of title.

The bill passed the House but was returned from the Senate with an amendment in the nature of a substitute. [56]The bill, as amended, confirmed each of the thirty-six grants except the Jornada del Muerto Grant. However, its owners were authorized to institute suit against the United States in the Supreme Court of the Territory of New Mexico to determine the validity of their claim. Both parties were given the right of appeal to the United States Supreme Court. Since the Town of Las Vegas and Luis Maria Cabeza de Baca Grants conflicted, the land was awarded to the town and Cabeza de Baca was authorized to select an equal quan­tity of non-mineral land elsewhere in the territory. The act also limited the confirmation of the John Scolly Grant to five square leagues instead of the five leagues square which its owners claimed, and the Las Animas Grant to not more than eleven square leagues to each of its two claimants, After passing in the House, the amended bill was forwarded to the President, who approved it on June 21, 1860.[57]

The Santa Rosalea gold mine proved to be so suc­cessful following its reopening in 1858 that its owners retained New Mexico’s Congressman John S, Watts, to present their claim to the Ortiz Mine Grant to Pelham’s successor, Alexander P. Wilbar. The claim was filed on November 8, 1860, and only sixteen days later was approved by Wilbar and transmitted to Congress for its final confirmation.[58]Early in 1861 a bill for the confirmation of this grant was intro­duced in the House of Representatives. After receiving approval of the bill from its Committee on Private Land Claims, the House, on February 8, 1861, passed it[59]and sent it to the Senate. On March 1, 1861, Senator Polk, from the floor of the Senate, announced:[60]

I am instructed by the Committee on Private Land Claims to report House Bill No. 981, to confirm a certain private land claim in the Territory of New Mexico. I will state that I have had this bill in my hand for a long time trying to get it before the Senate. I now report it back from that committee, with a recommendation that it pass.

Polk was recognized and the bill was considered by the Committee of the Whole. During the ensuing debate over this bill, the misapprehension and lack of understanding of the Southwestern private land claims problem by Congress became obvious. When Polk introduced the Surveyor General’s report, Senator Doolittle of Louisiana stated:

I think I must object to confirming land claims in the dark. We had one Houmas land grant confirmed in Louisiana; and without explanation, I cannot con­sent to allow the bill to pass.

To overcome Doolittle’s objection, Polk explained that the claim was “a perfect grant made by the Mexican government to two individuals for a gold mine which they had discovered.” Continuing, he stated that, in addition to the mine, the claim covered the “adjoining country around it, with a spring for the purpose of washing, and timber for the purpose of working the mine and pasturage for cattle.” Doolittle then asked why the grant was before the Senate if it was perfect. [61]

Polk answered, stating:

… there has been a law of Congress requiring all these claims to be reported on by the sur­veyor general, and to be acted on by Congress, and that is for the purpose of carrying out the system of surveys in New Mexico. The surveyor general will not survey any claim there, unless it is confirmed by Congress. This leaves the parties open to litigation, and open to have their lands squatted upon; but in order to carry out in New Mexico the system of the United States public surveys, we have required the surveyor general to report all these claims to Congress, to be acted on by Congress.

Upon learning that the claimants were in possession of the premises, Doolittle moved that the bill be tabled until the next session in order to give him more time to consider it. He contended that since the claimants had possession of the grant the delay surely could not cause them any hardship. This unexpected turn of events prompted Senator Wade to make the following statement:

Mr. Wade. I hope that motion will not prevail unless the Senator knows something of this title and has some valid objection to it. The committee of the House of Representatives acted upon the report of the surveyor general, and the Senate committee deliberately examined the subject, and agreed to it. Now, unless the Senator is suspicious that they have made some mistake, and knows on what he grounds his objection, I hope he will not delay it. The probability is, that if it be delayed, it will come up at another time, when Senators will have again to refer to the reports of the committees and confide in them, for it is impossible that every Senator can examine ~very one of these claims so as to know all about it.

Doolittle, after a conference with a “colleague who was on the committee on Private Land Claims” withdrew his objection and the bill was passed. The Act was signed by President James Buchanan on March 1, 1861.[62]

Wilbar, who had been Pelham’s chief clerk, served only a little over a year before being replaced as a result of a change in administration. President Abraham Lincoln appointed John A. Clark of Freeport, Illinois, as Surveyor General of New Mexico on July 26, 1861. Clark arrived at Santa Fe on October 9 of that year.[63] Shortly before his appointment, the Territory of Colorado had been created[64] and the 37th parallel was designated as the common boundary between Colorado and New Mexico. This act also provided for the appointment of a Surveyor General for Colorado who was to have the same duties as the Surveyor General of New Mexico. The only private land claims examined by the Sur­veyor General of Colorado were the Medano Springs and Zapata Grants, which he found to be fraudulent. The three private land claims that were confirmed by Congress[65] had been investigated as reported upon by the Surveyor General of New Mexico prior to Colorado’s establishment. While this reduction in the size of New Mexico eased the pressure in the Surveyor General’s office in regard to most public domain matters, it had no material effect on the solution of the private land claims problem of the Southwest for there were only a few such claims in Colorado.

The first year of Clark’s administration was disrupted by the Confederate invasion of New Mexico. His Annual Report for 1862[66]contains the following account of the effect of that event on his office:

In the month of July, 1861, a small force of Texan rebels came into the southern part of this Terri­tory, and, upon their demand, Major Lynde, in com­mand of the United States troops, disgracefully surrendered his whole force, although greatly su­perior in numbers and equipments, and the rebels were allowed to take peaceable possession of all that part of New Mexico south of Fort Craig. Dur­ing the months of December and January they were largely reinforced, and, marching up the Rio Grande, on the 14th of February last appeared before Fort Craig. On the 21st of February the battle of Valverde was fought, resulting disas­trously to our forces. Soon after, the Texans continued their march up the Rio Grande towards Santa Fe, their advance guard reaching Albuquerque on the 1st of March. On the evening of the 2d of March, I was informed by the commanding officer of this post that he had not sufficient force to hold the city against the Texans, who were expected to arrive in a few days; that on the following morning he would start his trains with the government stores from Santa Fe for Fort Union and that on the next day he would remove all the troops and evacuate the post.

My duty, under the circumstances, seemed plain. I at once packed in boxes the field-notes, plats, and records of the office, with such of the archives relating to the Spanish and Mexican claims as had been brought before this office for investigation and on the morning of the 3d of March dispatched them in a government wagon for Fort Union. On the same day I also left Santa Fe, and arrived at Fort Union on the following day. On the 6th the boxes arrived safely at the fort, and, at my request, the quartermaster at the post took them in charge and placed them within the defences of the fort. For want of transportation I was compelled to leave in the office all the office furniture, stationery, and books, and also all the Spanish documents relating to land titles in the Territory which had not been brought before the surveyor general for investigation. Mr. David J. Miller, translator and chief clerk in this office, remained in Santa Fe, and, at my request, took charge of the government property and the office building. On the 11th March the rebels, having taken possession of the city, demanded possession of the building, which he, of course, gave them.

An expedition left Fort Union on the 23d March with the purpose of driving the enemy from Santa Fe. On the 26th their advance met a considerable force of Texans in the Apache canon, about twenty-five ­miles from the city, and defeated them. On the 28th the Texans, having been largely re-enforced, were again met near the same place, and were again defeated with great loss. They then fell back upon Santa Fe, and soon after commenced their retreat south. A portion of their forces remained, and the office building was occupied by them until the 8th of April, when they also left; and Mr. Miller re­sumed possession of the public property and building. The building was afterwards used as quarters for some paroled prisoners, but only for a few days. Mr. Miller found much of the furniture, stationery, and other property missing, a considerable portion of which he afterwards recovered; but the cases containing the archives left by me, as above, had not been opened nor the papers disturbed. The return of property for the six months ending June 30 shows the property taken or missing. On the 20th of May the records were brought back from Fort Union, and found to be un­injured, and on that day the business of the office was resumed.

A substantial increase in surveying costs (re­sulting from the 1858-1860 confirmations), occurring con­temporaneously with strenuous efforts to conserve funds for use in its war effort, prompted Congress to pass an act[67] on June 2, 1862, which provided that all grants derived from a foreign country in any state or territory should be surveyed at the expense of the claimant under the direction of the surveyor general. The established procedure was for private land claims to be officially surveyed only after their confirmation by Congress.[68] Thus, there was no way for any of the interested parties to know the area covered thereby.

After the Confederates withdrew from the Southwest, it was recognized that New Mexico’ was too large to be effec­tively governed from Santa Fe. Therefore, Arizona was orga­nized as a Territory on February 24, 1863, from the western portion of New Mexico.[69] While this act provided for the ap­pointment of a surveyor general for Arizona, it was attached to the New Mexico land district in 1864. Three years later a land office was created at Prescott, but the territory was attached to the California surveying district. Arizona was established as a separate land district on July 11, 1870,[70] and John Wasson was appointed Surveyor General. He held that office for twelve years. Wasson was succeeded by J. W. Robbins; Royal A. Johnson succeeded Robbins; and he, in turn, was succeeded by John Hise. The Surveyors General of Arizona investigated and reported on sixteen claims.[71]However, Congress never acted on any of the Arizona grants. [72]

In the meantime, the Civil War had ended, and Congress, after five years of continuous refusal to pass upon any Southwestern private land claims, considered a bill for the confirmation of the Canon del Agua Grant, which was destined to become one of the most controversial grants as a result of charges that its boundaries had been located fraudulently in order to embrace the valuable “New Placers” gold mine.[73]This bill was introduced in the Senate in the early part of 1866 and, after having re­ceived the approval of its Committee on Private Land Claims, was brought up for consideration before that body on March 5, 1866. During the discussion[74]of the bill Senator Conness stated that he would be unwilling to vote in favor of the bill unless the claim was a perfect grant. To over­come Conness’ apprehension, Senator Harris stated:

I have examined this case with great care, and am satisfied that the claim is just. This tract of land was granted to the applicant by the Mexican government, in due form, according to the laws and usages of Mexico and Spain. He was put in posses­sion of it, and has been in possession of it ever since; and he was in possession of it at the time New Mexico was ceded to our country. Under the law of 1854, requiring these grants to be examined by the surveyor general of New Mexico, proof was taken by the surveyor general of New Mexico, and he made a report of it, the concluding clause of which is as follows:

“The grant to the lands situated at the Cañon del Agua was made according to the laws in existence at the time it was made. It is proved to have been in the quiet and undisturbed possession of the applicant from that date up to the present time. It is fully covered by the treaty of Guadalupe Hidalgo of 1848. It is therefore approved, and respectfully transmitted for the action of Congress in the premises.”

This is in precise accordance with the act of Congress passed in 1854, in relation to such claims.

The bill passed in the Senate without amendment. It passed in the House on June 8, 1866[75] and was approved by the President four days later. [76]

Three years later, two more confirmatory bills were introduced simultaneously in the United States House of Representatives. The first was introduced in the House in June, 1868, and provided for the confirmation of the Pueblo of Santa Ana Grant. The second sought the recognition of the Pablo Montoya, Antonio Ortiz, Ojo del Espiritu Santo, and Antoine Leroux Grants. They were passed by the House on July 1, 1868. The first passed the Senate and was approved by the President on February 9, 1869.[77] The second was enacted into law on March 3, 1869.[78]Nine years later a bill providing for the confirmation of the Mesita de Juan Lopez Grant was introduced by Senator Ingalls. The bill met with no opposition in Congress and was approved by the President on June 28, 1879.[79]

Meanwhile, grant owners were protesting the Act of May 30, 1862,[80] which required them to pay the cost of surveying their lands once they had been con­firmed. They contended that the act violated the letter and spirit of the eighth article of the Treaty of Guadalupe Hidalgo,[81]which provided that grantees were not to be subjected to “any contribution, tax or charge whatever.” They argued that to require them to bear the expense of separating their lands from the public domain subjected them to a “charge” which was prohibited by the treaty. Congress repealed[82] the act on February 18, 1871. This brought a drastic change in the policy of the General Land Office. No longer was the surveying of a claim put off until after it had received congressional confirmation, but permitted the Surveyor General to run a preliminary survey once it had been recommended for confirmation.[83] There­after, Congress had reliable information concerning the quantity of land embraced within each claim and automatically ended the possibility of its confirming a claim covering a vast area as a result of its ignorance of the location of the natural objects which marked its boundaries.

The confirmation of the Maxwell and Sangre de Cristo Grants, which covered such vast quantities of land, had caused Congress considerable embarrassment. These confirmations were criticized on three principal grounds: (a) that the Colonization Law of August 18, 1824,[84] and the Regulations of November 21, 1828,[85] limited the amount of land that could be granted to a single grantee after 1828 to eleven square leagues or 97,424 acres; (b) that fraud had been committed in the surveying of the grant; and (c) that the United States acquired jurisdiction over the lands embraced within the grant from Texas and not Mexico and was, therefore, not obligated under the Treaty of Guadalupe Hidalgo to recognize the claim. However, the Supreme Court held[86] that the confirmation and patenting of such claims amounted to the issuance of new grants by the United States to the full extent of the boundaries set forth in their patents. As a result of this furor, Congress became conscious of the function of the Surveyor General’s office to examine such claims adequately and that its Com­mittee on Private Land Claims did not have the facilities or the time to conduct independent investigations of their validity and boundaries. Therefore, it continuously refused to make any further confirmations but failed to pass the necessary legislation to solve the problem.

Between December 22, 1858, and January 28, 1879, Congress passed eight acts which confirmed title to eighteen grants, fifteen town or community grants, and thirty-six individual land claims, or a total of sixty-five grants covering 9,649,550.28 acres of land.[87]In 1880 there were 134 unconfirmed land claims covering 7,128,586.69 acres in Arizona, Colorado, and New (sic) which had been reported on by the Surveyor General offices. All except 11 had been recommended for confirmation.[88] However, experience had shown that the Surveyors General generally took the position that the government was not an actively interested party in a land grant investigation. With this attitude, the investigation almost invariably degenerated into an ex parte hearing wherein the claimant was allowed and expected to establish the validity of his grant without any opposition or resistance from the govern­ment. The preliminary survey of each claim, which was made in order to segregate the lands covered thereby from the public domain, often greatly extended its true boundaries. Since the boundaries described in the grant papers were usually vague and indefinite, the Deputy Surveyor had to rely upon unauthenticated evidence gathered in the field, such evidence generally being obtained for the interested parties. Thus, whenever a mountain, a stream, or similar natural object was called for as a boundary, and if there were more than one in the area which would meet the des­cription, the one which was farthest away would almost in­variably be pointed out to the Deputy Surveyor as the one called for in the grant. The Deputy Surveyor, while normally an official of the government, was in fact an independent contractor. He was paid from the deposit put up by the grant owner, and, therefore, his sympathies were usually with the claimants. Since his fee was based on the number of miles of survey line run, his personal interests favored the extension of the boundaries of the grant whenever possible.[89] When the Deputy Surveyor returned his field notes and plat, the Surveyor General generally approved them blindly since he had no way of checking the location of the natural objects called for in the grant papers. Once Congress had confirmed a grant and it was patented according to the preliminary survey, the patent could not be cancelled or set aside in the absence of a clear showing that it had been obtained through fraud or mistake.[90]

Grover Cleveland was elected to the presidency in 1884 on a reform platform. No problem worried him more than the need to protect the public domain from spoilation. His concern was well justified, for the area claimed under many of the New Mexican private land grants that had been filed in the Surveyor General’s office covered substantially more acreage than was called for in their title papers. Also, it was known that many surveys of the public domain had been carelessly made, and there were serious irregularities in connection with many entries made under the Homestead Laws.[91]Therefore, he appointed William A. J. Sparks, a born crusa­der from Illinois, as Commissioner of the General Land Office, and George W. Julian an ex-Republican and freesoiler who had been Chairman of the Committee on Public Land Claims in the House of Representatives, as Surveyor General of New Mexico. Concerning his appointment, Julian wrote: [92]

In a letter from President Cleveland, dated May 11, 1885, he asked me if I would accept the office of Governor and Surveyor General of New Mexico, and co­operate with him in breaking up the “rings” of that Territory, stating that he considered the latter position the more important of the two…. In view of advancing years and failing health, I had no desire to venture so far out on the frontier and engage in a vexatious struggle with the organized roguery that had so long affected New Mexico. On conferring with intelligent friends on the subject, however, my impressions were modified, and, after listening to their stories about the climate of Santa Fe and indulging in dreams of restored health, I finally answered the President in the affirmative…

All that I had heard about the climate were true, but the half had not been told me concerning the ravages of land stealing. …

Upon arriving in Santa Fe, Julian promptly set out to discredit and cast doubt upon the decisions made by his predecessors on many of the private land claims which were then pending before Congress and attacked several con­firmed grants. He also asserted that ninety per cent of all land entries in New Mexico were fraudulent.[93]These serious charges struck at the financial heart of the Terri­tory and cast a smirch upon the New Mexico bar. Thus, much of the bitterness against the Democratic Party in New Mexico at this time resulted from Sparks’ and Julian’s intense land reform measures. Ralph Emerson Twitchell, one of New Mexi­co’s leading attorneys and historians, described[94] Sparks’ and Julian’s attitudes as follows:

These men, steeped in prejudice against New Mexico, its people, and their property rights, sought to establish in the public mind that, by the acts of former officials charged with administration of public land affairs in New Mexico, the government had been despoiled of millions of acres of land, insti­tuted and prosecuted a policy of investigation relative to the former disposition of the public domain, which, in the final outcome, proved a complete failure, owing to its virulence and partisan political character.

Julian was especially hostile towards Tom B. Catron, the head of the Santa Fe “ring” and attorney for a large number of grant claimants.[95]

On December 11, 1885, Sparks wrote[96] Julian:

In my annual report I have recommended that all claims heretofore transmitted to Congress pro forma through this office be remanded for re-examination. Should any cases reported upon by your predecessors be brought to your attention, in which it appears that an investigation is desirable in the public interest, I know of no objection to your making such investigation, but, on the contrary, think it ought to be made for the information of this office and Congress…

In response to Sparks’ instructions, Julian set about re­examining the actions of his predecessors.[97] He re-examined thirty-five claims covering 4,380,048.56 acres of land, which previously had been recommended for confirmation and were then pending before Congress for final action. By Supplemental Reports, he recommended the rejection of twenty-two, covering an area of 2,155,883.66 acres. In the remaining cases, he recommended confirmation of title but in almost every instance for a smaller area than that claimed.[98] Julian, in his Annual Report for 1886,[99]stated that in the re-examination of the claims he had endeavored to notify the claimants of the re-examination of their claims in order that they might file additional papers or proof. Continuing, he stated that he “studiously avoided hasty action and ex parte investigations in an effort to ascertain the real merits in each case.” Surveyor General of Arizona John Hise, pursuant to similar instructions, re-examined the pending claims under his jurisdiction and recommended the rejection of one claim which previously had been approved.

The principal reason for these adverse deci­sions was the shift in the burden of proof required by the office to sustain a claim. Julian stated, [100] “ . . .nearly all my predecessors seem to have followed the principle that the validity of Mexican and Spanish grants is to be presumed, and that doubts are to be disposed of in the interest of the grantee, instead of requiring him to establish his claim by adequate proofs…. Continuing, he argued: [101]

The mischiefs of this wholesale spoilation of the public domain in the interest of private greed are greatly aggravated by the uncertainty of land titles which inevitably attend it. In order to fully appreciate this evil it should be remembered that probably not more than half the grants of this territory have been made known, while no statute of limitation compels their production.

He pointed out that the curse of uncertain titles would continue until Congress provided an efficient procedure to adjudicate private land claims and to establish their boundaries. After noting that the Senate repeatedly had refused to pass bills for the creation of a board of land commissioners for the Southwest, Julian suggested that such claims should either be promptly acted on by Congress under the act of July 22, 1854, or that the act be amended in order to permit that adjudication by the General Land Office with right of appeal to the Secretary of Interior. The amendment should also contain a statute of limitation which would invalidate any claim not timely filed. In defense of his recommendations, he felt obliged to explain that the land grant problem had not been created by defects in the Act of July 22, 1854, but as a result of “the abuse and non-execution of the act….” He contended that if the Surveyors General of New Mexico had been capable and trust­worthy men and diligently executed their task and if Con­gress had disposed of the cases promptly, all of the claims would have been settled before the outbreak of the Civil War. Thus, he laid the blame on maladministration instead of defects in the act.

Since Congress failed to act speedily upon his recommendations, Julian became malcontent and attempted to force it to act by attacking his predecessors in office and the New Mexican land grants by contributing an article[102] to the influential North American Review. While the article had little effect elsewhere, it awakened the citizens of New Mexico and caused them to appreciate the need for the speedy settlement of the land grant problem. In the 1890 address[103]to the New Mexico Bar Association, its president, Frank Stringer, criticized Julian’s actions by pointing out that it was indeed an amazing spectacle when:

. . . a United States Surveyor General, holding office under an Act of Congress, having for its object the settlement of titles, deliberately and professedly undertook to overturn a large part of what his prede­cessors had done; set himself up as a court of review upon their act; took up cases passed upon years before, and without notice to the parties in interest or an opportunity for them to be heard, declared their titles fraudulent and void.

He pointed out that, while Julian’s actions were without jurisdiction or legal effect, they were designed to preju­dice the public and Congress against the very claims which the nation was obligated to protect inviolably. Continuing, he noted that titles which had been confirmed by Congress, patented by the land office, and held to be valid by the Supreme Court were not safe from the “venomous tongue of this official scandalmonger.” In closing, he made the following observations: [104]

. . . We want to know where the private land ends and the public land begins, so that those who settle upon them may build r cultivate and improve; that they may think less of reports and confirmations and suits, and more of tilling the soil; that the struggle for existence may be fought out with plows and pruning hooks instead of Winchesters; that the claim shortly may disappear, and in its place homes arise, and around the hearths may cluster the affections and memories of family life…. What we want, therefore, is a tribunal for the determination of these titles, and the location of the boundaries, whose acts shall be of a judicial character, and whose decisions, either originally or through the medium of convenient appeal shall be final. We are not particular about the details, but will be satisfied with almost any­thing we can get, that will afford relief from the present chaos. There are a few substantial requisites, however, without which any legislation would be little better than none at all. . .

The prerequisites recommended by Stringer were (1) the establishment of an independent tribunal with no other busi­ness than the adjudication of private land claims, (2) the granting of appeals from the decisions of the tribunal directly to the court of last resort, (3) the seating of the tribunal in the Southwest, (4) the unrestricted intro­duction of evidence gathered by the Surveyor General, (5) the assessment of costs against the government in cases where the claimant was successful, (6) the confirmation of title of small tracts of land —not exceeding 160 acres ­to persons who had possession of them at the time the United States acquired the Southwest,[105]and (7) the imposition of a presumption that claims not presented within a certain and short period of time would be deemed to have been abandoned.

The complete breakdown of the confirmation pro­cedure under the Act of July 22, 1854, coupled with the agitation from all interested parties and officials, finally brought this matter to a head in the latter part of 1889. By that time there was a backlog of 116 New Mexican grants, 18 Arizona grants, and 1 Colorado grant covering a total area of 7,128,586.69 acres awaiting Congressional action.[106]President Benjamin Harrison’s Annual Message to Congress for the year 1889[107] had called attention to the fact that due to the unsettled state of titles, the development of Arizona and New Mexico were being seriously retarded, and recommended the passage of legislation for the prompt settlement of the problem before either a com­mission or judicial tribunal.[108] In an effort to break the stalemate which had arisen between the two houses, Harrison sent a special message[109] to Congress on July 1, 1890, in which he reminded it that the United States owed a duty to Mexico to confirm all grants which were protected by the Treaty of Guadalupe Hidalgo, and expressed the hope that the differences of opinion as to the method to be used would yield to the urgency in settling the problem. A bill was introduced by Congressman McCreary of Kentucky, pro­viding for the establishment of a land court along the lines suggested by Stringer. A similar bill was introduced in the Senate by Matt W. Ransom. Although both bills were favorably reported upon by the Committee on Private Land Claims, there was insufficient time to secure their passage before the close of the session.

McCreary reintroduced the bill for the creation of a “United States Land Court” in the second session of the Fifty-First Congress.[110]The background of the problem and purpose of the bill was debated[111]in the House of Representatives on December 13, 1890.

Following the close of the debates a number of amendments were offered and adopted. The principal amend­ments were (1) the reduction of the judge’s salary from $7,500 to $3,500 per annum; (2) a prohibition of the appointment of more than two judges from one party; (3) the elimination of Arizona from the court’s jurisdic­tion; and (4) a provision requiring the government to pay a claimant, whose grant had been confirmed, the sum of $1.25 per acre for all land located therein which previously had been disposed of by the government. The bill, as amended, was passed by the House on December 14, 1890.[112]

When the bill reached the Senate, George F. Edmunds, of Vermont, requested its prompt approval, stating that all dissenting considerations and views which pre­viously had been raised against the proposal had been harmonized, except the objection raised by Senator Wolcott, of Colorado, who had desired to limit the maximum amount of land that could be confirmed to eleven square leagues. Hope for the passage of the House’s bill in the Senate was dashed when the Committee on Private Land Claims offered an amendment in the nature of a substitute![113]However, there was no material difference in concept between the two bills. The more significant differences were that the Senate bill changed the name of the court from “United States Land Court to the “Court of Private Land Claims;” decreased the judge’s salary from $5,500 to $5,000; applied to Arizona; permitted the owners of perfect grants to apply to the court for the confirmation of their claims, and required the owners of inchoate claims to pre­sent their claims to the court within two years instead of three; limited the confirmation of inchoate claims to eleven square leagues; and restricted the recognition of claims of small landholders to one tract not to exceed 160 acres. Since the session was drawing to an end, it was imperative that prompt action be taken if any measure was to be passed that year. Therefore, the proponents of the House bill withdrew their opposition and the substitute bill passed.[114]A conference was called with the House to discuss the “amendment” to the House bill. The amendment was totally unacceptable to the House in one aspect. Since it was the custom in New Mexico for the claimants to live in town and work an outlying tract, it was necessary that the small landowner’s clause be amended to permit the confirmation of more than one tract of land, provided the total not exceed 160 acres. The conference committee accepted this sugges­tion as an amendment, and further amended the Senate version of the bill in order to increase the number of associate judges from two to four.[115] Following the conference, the bill, as amended in the Senate and in conference, was passed by both houses on the night before the last day of the ses­sion. The act was approved by President Harrison on the next morning, March 3, 1891.[116]

This act established a special five-man court for the adjustment of perfect and inchoate land claims located in all of the territory ceded to the United States by Mexico, except California, which had not been previously adjudicated. The court was empowered to adopt rules and regulations[117]for the transaction of business and was to hold meetings in the states mentioned in the act. Its life was originally limited to five years, but through necessity its term was extended from time to time to June 30, 1904.[118]All petitions seeking the recognition of inchoate land claims which had not been filed by March 3, 1893 were to be forever barred. By confirming a grant, the United States merely quitclaimed its interest in the surface estate only, and such decision was not to be construed as conveying any interest in minerals or as adversely affecting the vested or conflicting rights of third parties. Also, the court could not confirm an inchoate claim for an area in excess of eleven square leagues. Appeals from the court’s decisions were permitted directly to the United States Supreme Court. Upon the rendition of a final favorable decision in a case, it became the duty of the Commissioner of the General Land Office to have a survey made of the grant and returned to the court for approval. Persons who had been in actual continuous adverse possession of a tract or tracts of land, not exceeding 160 acres, for twenty years were to be given patents to their lands following their being surveyed by the government.

President Harrison appointed Joseph R. Reed[119]as Chief Justice, and Thomas C. Fuller,[120] William M. Murray,[121] Wilbur F. Stone,[122] and Henry C. Sluss[123] as Associate Justices of the Court of Private Land Claims on June 10, 1891. Their appointments were confirmed by the Senate on January 11, 1892.[124]Frank I. Osborne was appointed by President Theodore Roosevelt on December 5, 1901, to fill the vacancy created by Fuller’s death. His nomination was confirmed by the Senate on December 18, 1901.[125] The court was non-partisan in its composition. Three of the original five judges were from the Republican Party, while two were Democrats. One of the Republican members was from a southern state, and one of the Democrats was from a northern state. Four of its members had served as officers during the Civil War—three on the Union side and one on the Confederate. The fifth member of the court held the position of Assistant United States Attorney during the war. In ability and judicial experience, the members were fully qualified to serve on this unique tribunal. Thus, the court was free of the least taint or suspicion of party or political imputation.[126] Matthew G. Reynolds[127]was appointed as United States Attorney to the court on June 10, 1891. His confirmation was approved by the Senate on December 10, 1891.[128]

The court formally convened for business on July 1, 1891 at Denver, Colorado, but shortly thereafter transferred its seat to Santa Fe, New Mexico, as a result of there being no government building in Denver to accommodate it. Commencing on December 6, 1892, special sessions were held from time to time at Tucson and Phoenix, Arizona. All cases involving lands in Arizona were transferred to that district.

Work at the court went at a rather leisurely pace until March 2, 1892 (sic), the day before the deadline for filing cases under the Court of Private Land Claims Act. However, business picked up during the last two days. A local account of the final hours before the deadline (midnight on March 3, 1893) indicates that “nearly all the New Mexican claimants got their claims filed in time.”[129]

During Thursday and Friday (March 3, 1893), and far into the night, there was a rush of business at the clerk’s office; and some 125 grants were filed. The clerical force was not equal to the rush, and today the official record covering these new cases has not been one-third completed, so that it is impossible to secure a list of the new cases for publication. In order to facilitate business, Chief Clerk Reeder will probably have prepared and published at an early day a court docket giving information touching each grant filed. The number of cases now before the court is not far from 300; of this number, some 240 cases relate to grants in New Mexico, and as there are some 250 grants of record for this terri­tory in the surveyor general’s office, it may be seen that not a great many claimants will be left, even if the time for filing should cease on Friday, as originally provided by law.

Twelve cases were filed after the deadline as “perfect grants” under Section 8 of the Act. The last case was filed on December 9, 1902. Three cases were filed for money judgments under Section 14 of the Act.

The work of the court was divided into two cate­gories: (1) the adjudication of validity of the claims; and (2) approving the surveys of confirmed claims. In reaching its decisions, the court often had to:

(a)    Interpret the terms of treaties between the United States and Mexico.

(b)   Consider international law, Roman Civil Law, the edicts, ordinances and decrees of the Spanish Crown relating to the Indies, which often were cen­turies old,

(c)    the laws, statutes and regulations of federal government, states and territories of Mexico,

(d)   the restrictive provisions of the Act of March 3, 1891,

(e)    the decisions of the federal courts involving similar questions arising in California, and under the Louisiana Purchase and Florida Acquisition,

(f)    the customs, definitions, interpretations and traditional usages relating to the estates and tenure under Spanish and Mexican land grants

(g)   the laws of evidence, realty, descent, aliena­tion and equitable rights applicable under the rules of judicial procedure in the federal courts, and

(h)   the claimant’s muniments of title. Since most of this type of evidence was written in archaic legal Spanish, the services of expert translators were required. [130]

During the thirteen years the court was in exis­tence, a total of 290 cases were filed, seeking the confirmation of 248 grants, which covered an aggregate area of 35,491,019 acres. These cases “involved 228 grants located in New Mexico; 17 in Arizona; and 3 in Colorado. Over half of the cases, or 158, were rejected entirely. Title to the entire area claimed was confirmed in only 21 cases. The court recognized, in whole or in part, titles covering 1,934,986 acres in New Mexico and 116,539 acres under grants in Arizona, or a total of 2,051,525.[131]

The 33,439,494 acres which were rejected reverted to the public domain. Many of the large grants which were not wholly rejected were materially reduced in size, either by virtue of the eleven-league limitation contained in the act creating the court, or as a result of it being found that the grant actually embraced a smaller area than claimed by the petitioners.

The decisions of the Court of Private Land Claims in 73 cases (58 New Mexico and 15 Arizona) were appealed to the United States Supreme Court. The government was the appellant in 26 cases. Many of the appeals were dismissed, and only 39 appeals, which involved a total of 37 grants, were passed upon by the Supreme Court. The government appealed 16 decisions. The decision of the Court of Private Land Claims was affirmed in 23 cases, reversed in 5 cases, and reversed and remanded” in 11 cases. The government secured a reversal or reversal and remand in 10 cases.[132] The United States was required to pay only one money judgment in the total amount of $513.63[133]under the provi­sions of Section 14 of the act. The court, having concluded all of its business, adjourned sine die on June I5, 1904.[134]After fifty-six years, the United States had finally dis­charged its obligations under its treaties with Mexico with respect to private land claims.

[1] Fleming v. Page, 9 How. (50 U.S.) 603 (1850).

[2] Nevins, Polk: The Diary of a President, 106 (1929).

[3] Letter of the Secretary of War to General Kearny dated June 3, 1846 (Confidential); a copy is contained in H. R. Exec. Doc. No. 60, 30th Cong., 1st Sess., 153-155 (1848).

[4] Proclamation of General Kearny of 22nd August; a copy is contained in H. R. Exec. Doc. No. 60, 30th Cong., 1st Sess., 170-171 (1848).

[5] It is a well established principle of interna­tional law that the inhabitants of a country are protected in their property rights, notwithstanding a transfer of sovereignty. United States v. Perceman, 7 Pet. (32 U.S.) 51 (1833).

[6] 1 New Mexico Statutes, 348-35 (1953).The Kearny Code was drafted by Colonel Alexander W. Doniphan and Private Willard P. Hall, two St. Louis lawyers who un­doubtedly were familiar with and patterned the land regis­tration provision of the Code after the procedure established in Missouri under Sections 4 and 7 of the Act of June 13, 1812. [An act making further provisions for settling the claims to land in the Territory of Missouri, Chap. 99, 2 Stat. 748 (1812)]. While the Register had no authority to approve claims, the registration provisions of the Code were more than a mere recordation statute, and provided a method of gathering the information necessary for future congres­sional action on the matter. One should be mindful of the fact that Kearny had no legal authority to create the Terri­tory of New Mexico and establish a civil government for it, since those matters were solely within the province of Con­gress: Article IV, Section 1 of the Constitution of the United States.

[7] 5 Miller, Treaties and Other International Acts of the United States of America, 207-236 (1937).

[8] Buchanan to Minister of Foreign Relations of the Mexican Republic, March 18, 1848; a copy is contained in H. R. Exec. Doc. No. 69, 30th Cong., 1st Sess., 66-72 (1848).

[9] Mexico obviously was concerned over the fact that a Consultation Convention held on November 13, 1835 set up a provisional government for Texas and directed all commis­sioners, empresarios, surveyors and other persons concerned with the location of lands to cease their operations. This in effect terminated all empresario contracts. 1 Gammel, The Laws of Texas, 538-545 (1898). By the Act of December 14,-1837, empresarios were authorized to institute suit against the President of the Republic to establish their claims for premium land. Ibid., 1413.

[10] Haynes v. Texas, 85 S.W. 1029 (Tex. Civ. App., 1905) .

[11] Chadwick v. Campbell, 115 F. 2d 401 (lath Cir. 1940) .

[12] Astiazaran v. Santa Rita Land & Mining Company, 148 U.S. 80 (1893).

[13] United States v. Sutter, 62 U.S. 170 (1858).

[14] 6 Miller, Treaties and Other International Acts of the United States of America, 293-302 (1942).

[15]Abel, The Official Correspondence of James S. Calhoun While Indian Agent at Santa Fe, 119 (1915).

[16] These claims were registered in four books. Volumes “A” and “C” are archived in the Bureau of Land Management, Santa Fe, New Mexico; Volume “B” has been lost; and Volume “D” is located in the Federal Record Center in Denver, Colorado .

[17] Laws of the Territory of New Mexico, 176 (1852).

[18] S . Exec. Doc. No.1, 33rd Cong., 1st Sess., 53-67 (1853).

[19] Ibid., 434-441. The dispute between pueblos mentioned by Graves undoubtedly was the one between the Acoma and Laguna.

[20] Ibid., 71-89.

[21] Ibid., 3-21.

[22] 5 Miller, Treaties and Other International Acts of the United States of America, 207-236 (1937).

[23] 6 Miller, Treaties and Other International Acts of the United States of America, 293-437 (1942).

[24] An Act declaring the Southern Boundary of New Mexico, Chap. 245, 10 Stat. 575 (1854).

[25] California Assembly Journal, Fourth Session, 23-26 (1853).

[26] The office of Surveyor General was created in 1796. The surveyors general were independent officers until 1836 when they were placed under the General Land Office. Their basic duties were receiving applications for surveys and resurveys; examining, transcribing, platting, and approving returns of surveys; housing original records of surveys and resurveys, and furnishing certified copies of these records; receiving and disbursing monies deposited for surveys and resurveys; gathering and furnishing infor­mation relating to general surveying. Special duties were assigned to the office from time to time. The office was abolished on July 1, 1925 and its duties transferred to the Surveying Service of the General Land Office, which In turn was merged with the Grazing Service to form the Bureau of Land Management in 1946.

[27] Cong . Globe, 33 Cong., 1st Sess., 90 (1854).

[28] Ibid. 1094.

[29] Ibid., 1311.

[30] An act to establish the Office of Surveyor General of New Mexico, Kansas and Nebraska, to grant donations to actual settlers therein, and for other purposes, Chap. 103, 10 Stat. 308 (1854).

[31] S. Misc. Doc. No. 12, 42nd Cong.,,,, 1st Sess., 1-7 (1871).

[32] Pelham to John Wilson, April 26, 1855 (Mss., Records of the B.L. M., Santa Fe, New Mexico). Pelham resigned in 1860 as a result of the disallowance of the purchase of candles for a night watchman. It seems that the vault, which had been constructed for the storage of the Spanish documents he had selected from the archives was “useless” and he had employed a night­ watchman and kept a dog on the premises to protect the papers archived in his office from thieves, fire, and rats. Since the night watchman had to be provided with light at night, Pelham felt the purchase of the candles should have been approved. Pelham to J. S. Wilson, July 4, 1860 (Mss., Records of the B.L.M., Santa Fe, New Mexico). Pelham described vaults which had been constructed to store the archives as being “two small holes in the cellar of the new State House building” which had been arched over and were without floors or doors and had no ventilation or light. He concluded by stating that the so-called vaults were· “entirely unfit for keeping valuable papers, and only adapted for storing coal and wood for fuel.” S. Exec. Doc. No. 11, 35th Cong., 1st Sess., 258-259 (1857).

[33] The archives consisted of 168 packages, each of which contained about a thousand documents. Pelham, in a letter to Wilson dated May 31, 1855, complained that he was receiving only $3,500 a year, while the Surveyor General of California had a salary of $4,500 annually and was not required to set up the titles to private land claims which required a vast amount of labor. He pointed out that when he asked Meriwether for the land records the governor showed him “a mass of papers put up in bundles as large as goods boxes, without any reference to what were put in them.” Continuing, he stated that it took him an enormous amount of time and energy to make the necessary selections from the “two wagon loads of papers” which had accumulated over a period of some two hundred and fifty years. H.R. Exec. Doc. No.1, 34th Cong., 1st Sess., 158-159 (1855).

[34] A closer study of the archives showed there were only 1,014 documents pertaining to 197 concessions. A schedule of these documents and grants is contained In H.R. Exec. Doc. No.1, 34th Cong., 3rd Sess., 413-439 (1856).

[35] H. R. Exec. Doc. No.1, 34th Cong., 1st Sess., 301-302(1855) .

[36] H. R. Exec. Doc. No.1, 34th Cong., 1st Sess., 305-307 (1855).

[37] Ibid., 301-307.

[38] There were the Pueblos of Zia, Santa Ana, San Juan, Jemez, and Pecos.

[39] H.R. Exec. Doc. No.1, 37th Cong., 3rd Sess., 120 (1862).

[40] H. R. Exec. Doc. No.1, 34th Cong., 3rd Sess., 411-542 (1856).

[41] They are the Preston Beck, Jr., The Town of Tome and the Tierra Amarilla grants.

[42] These were the claims of the Pueblos of Acoma, Picuris, San Felipe, Pecos, Cochiti, Santo Domingo, Taos, Santa Clara, Tesuque, San Ildefonso, and Pojoaque. In his Annual Report for 1856 to the Superintendent of Indian Af­fairs, Governor and Superintendent of Indian Affairs in New Mexico David Merriwether stated: “Several of the Pueblos have lost their grants from the governments of Spain and, Mexico for the lands held by them, and in such cases their agent, A. G. Mayers, has taken testimony before the Surveyor General of the Territory to substantiate their claims; and it is to be hoped that in all such cases Congress will promptly confirm their titles.” H.R. Exec. Doc. No.1, 4th Cong., 3rd Sess., 734 (1856).

[43] H. R. Exec. Doc. No.1, 34th Cong., 3rd Sess., 209-210 (1856).

[44] S . Exec. Doc. No. 11, 35th Cong., 1st Sess., 257′ (1857).

[45] In addition to the three grants previously approved, Pelham had approved the following 16 claims—(1) The Sangre de Cristo Grant, (2) The Town of Casa Colorado Grant, (3) The Brazito Grant, (4) The Town of Tecolote Grant, (5) The Los Trigos Grant, (6) The San Cristobal Grant, (7) The Nuestra Senora de la Luz Grant, (8) The John Scally Grant, (9) ‘The Town of Chililli Grant (10) The Agua Negra Grant, (11) The Town of Belen Grant, (12) The San Pedro Grant, (13) The Maxwell Grant, (14) The Jose L. Perea Grant, (15) The Las Animas Grant, and (16) The Canon de Pecos Grant.

[46] Cong . Globe, 35th Cong., 1st Sess., 1943 (1858).

[47] Ibid., 2091-2092.

[48] Ibid., 2092-2098; 2114-2115.

[49] Cong. Globe, 35th Cong., 1st Sess., 2896 (1858).

[50] An Act to Confirm the Land Claims of Certain Pueblos and Towns in the Territory of New Mexico, Chap. V, 11 Stat. 374 (1858). Although the Pueblo Grants, which later were proved to be spurious, were among the first land claims to be recognized by the United States, the problem of the pueblo property rights was far from being solved. In addition to granting most of the more heavily inhabited pueblos extensive “reservations,” Congress passed the Pueblo Lands Act of June 7, 1924 [Pueblo Lands Act, Chap. 331, 43 Stat. 636 (1924)], which provided for the appoint­ment of a commission to investigate and adjudicate the status of the thousands of non-Indian claims located within the Pueblo Grants. [For a fuller discussion of most of the Pueblo Grants and the Pueblo Lands Act, see Brayer, Pueblo Indian Land Grants of the “Rio Abajo,” New Mexico (1938)]. One would think that during the four centuries which have passed since the white man brought the Pueblo Indians under his protective control and more than a cen­tury of American guardianship, all claims by the Pueblo Indians would have been settled; however, they presently are asserting “aboriginal land claims” before the Indian Claims Commission [Indian Claims Commission Act, Chap. 959, 60 Stat. 1050 (1946)].

[51] There were (1) The Town of Las Vegas Grant, (2) The Luis Maria Cabeza de Baca Grant, (3) The Town of Tajique Grant, (4) The Town of Torreon Grant, (5) The Town of Manzano Grant, (6) The Town of San Isidro Grant, (7) The Canon de San Diego Grant, (8) The Jornado del Muerto Grant, (9) The Town of Las Trampas Grant,(10) The Sebastian Martin Grant, (11) The Town of Anton Chico Grant, (12) The five Laguna Purchase tracts, (13) The Gaspar Ortiz Grant, (14) The Town of Mora Grant, (15) The Pedro Armendaris Grant No. 33, (16) The Pedro Armendaris Grant No. 34, (17) The Bosque del Apache Grant, (18) The Town of Chamita Grant, (19) The Town of Tejon Grant, and (20) The Ramon Vigil Grant.

[52] H.R. Exec. Doc. No. 14, 36th Cong., 1 Sess., 45 (1860).

[53] S . Exec. Doc. No.2, 36th Cong., 1st Sess., 296­298 (1860).

[54] Cong . Globe, 36th Cong., 1st Sess., 816 (1860).

[55] H. R. Report No. 321, 36th Cong., 1st Sess., 1-2 (1860).

[56] Cong . Globe, 36th Cong., 1st Sess., 3216 (1860).

[57] An Act to confirm certain private land claims in the Territory of New Mexico, Chap. 167, 12 Stat.. 71 (1860). The failure of this act to provide for the surveying and patenting of these grants was a serious shortcoming which subsequently caused a great deal of confusion and created great difficulties for all concerned with several of these grants.

[58] H. R. Exec. Doc. No. 28, 36th Cong., 2d Sess., 64-72 (1861).

[59] Cong . Globe, 36th Cong., 2d Sess., 816 (1861).

[60] Ibid., 1304.

[61] Ibid. It is interesting to note that the grant was not perfect as alleged since it had been made by an alcalde.

[62] An Act to Confirm a Certain Private Land Claim in the Territory of New Mexico,Chap.66, 12 stat. 887 (1861).

[63] Wilbar to Commissioner of the General Land Office J. M. Edmunds, October 9, 1861 (Mss., Records of the B.L.M., Santa Fe, New Mexico).

[64] An Act to Provide a Temporary Government for the Territory of Colorado, Chap. 59, 12 Stat. 172 (1861).

[65] These three claims were (1) The Las Animas Grant [confirmed by Act of June 21, 1860; an Act to Con­firm Certain Private Land Claims in the Territory of New Mexico, Chap. 167, 12 Stat. 71 (1860)]; (2) The Luis Maria Cabeza de Baca-Float No.4 [Ibid.]; and (3) The Gervacio Nolan Grant [confirmed to the extent of eleven square leagues by the Act of July 1, 1870 -An Act to Confirm the Title of the Heirs of Gervacio Nolan, Deceased, to Certain Lands in the Territory of Colorado,Chap.202,16 Stat.646 (1870)].

[66] H. R. Exec. Doc. No.1, 37th Cong., 3d Sess., 122 (1862). The stamped paper taken from the Surveyor General’s office during the invasion was later used by a forger in connection with the filing of several spurious claims.

[67] An act for the survey of grants or claims of land, Chap. 90, 12 Stat. 410 (1862). Surveyor General James K. Proudfit, in discussing the act, stated that “At that time a great civil war was raging that seriously threatened to dismember the nation, and it may have been thought that while it was uncertain whether the Government could retain this distant and comparatively isolated territory, largely inhabited as it was by people of foreign nativity and language, it would be folly to payout the public money in segregating their lands from the public domain. And the general feeling that, during the continuance of such struggle, it was highly important to husband to the utmost the national resources may have had much to do with caus­ing the passage of the law.” H.R. Exec. Doc. No.1, 43d Cong., 1st Sess., 102 (1873).

[68] Surveyor General James K. Proudfit to William Blackmore, September 26, 1874 (Mss., Records of the B.L.M., Santa Fe, New Mexico) .

[69] An Act to Provide a Temporary Government or the Territory of Arizona, and For Other Purposes, Chap. 56, 12 Stat. 664 (1863).

[70] An Act to Make the Territory of Arizona a Separ­ate Surveying District, and To Establish the Office of Sur­veyor General Therein, Chap. 246, 16 Stat. 230 (1870).

[71] These were (1) The San Rafael del Valle Grant; (2) The San Ignacio del Babocomari Grant, (3) The San Ignacio de la Canoa Grant, (4) The El Paso de los Algodones Grant, (5) The Tumacacori and Calabazas Grant, (6) The San Jose de Sonoita Grant, (7) The San Rafael de la Zanja Grant, (8) The Aribac Grant, (9) The San Juan de las Boquillas y Nogales Grant, (10) The Los Nogales de Elias Grant, (11) The Rancho de Otero and house lot, (12) The Sopori Grant, (13) The Rancho de Martinez Grant, (14) The Buena Vista Grant, (15) The Tres Alamos Grant, and (16) The Peralta Grant. The El Paso de los Algodones, Sopori and Peralta Grants were recommended for rejection. The San Ignacio del Babocomari and San Rafael de la Zanja Grants were cut down from the area claimed to the area granted.

[72] The two Baca Floats located in Arizona are founded on the Luis Maria Cabeza de Baca Grant, which was situated in San Miguel County, New Mexico.

[73] Chief Justice Elisha V. Long of the New Mexico Supreme Court, in the longest and most exhaustive opinion written in any case during territorial days, set aside the patent on the ground the evidence showed that through fraud and mistake the boundaries of the grant had been reversed. In passing, he also noted that, under Spanish law, mines and minerals were reserved as a prerogative of the crown. United States v. San Pedro and Canon del Agua Company, 4 N.M. (Gild) 405, 17 P. 337 (1888). As a result of his ability and understanding of Spanish and Mexican land law, Long would have been a logical appointee to the Court of Private Land Claims. However, his adversaries slipped a proviso into the Court of Private Land Claims Act pro­hibiting the appointment of residents of New Mexico and Arizona to the Court.

[74] Cong. Globe, 39th Cong., 1st Sess., 1178 (1866).

[75] Ibid. 3052.

[76] An act to confirm the title of Jose Serafin Ramirez to certain lands in New Mexico, Chap. 118, 14 Stat. 588 (1866).

[77] An act to confirm the title to certain land to the Pueblo of Santa Ana, in the Territory of New Mexico, Chap. 26, 15 Stat. 438 (1869).

[78]An act to confirm certain private land claims in the Territory of New Mexico, Chap. 152, 15 Stat. 342 (1869) .

[79] An act to confirm a certain private land claim in the Territory of New Mexico, Chap. 31, 20 Stat. 592 (1879) .

[80] An act for the survey of grants or claims of land, Chap. 90; 12 Stat. 410 (1862).

[81] 5 Miller, Treaties and Other International Acts of the United States of America, 207-236 (1937).

[82] An act to repeal an act entitled “An Act for the Survey of Grants or Claims to Land,” approved June second, eighteen hundred sixty-two, Chap. 57, 16 Stat. 416 (1871).

[83] While the preliminary surveys were paid for by the government, the General Land Office required the claim­ants to put up a deposit in an amount equal to the cost of the survey, which would be forfeited in the event the claim was not confirmed.

[84] Reynolds, Spanish and Mexican Land Law, 121 (1895).

[85] Ibid., 141.

[86] Tameling v. United States Freehold & Emigration Company, 93 U. S. 644 (1877), and United States v. Maxwell Land Grant Co., 121U. S. 325 (1887).

[87]

87 Schedule of New Mexico Private Land Claims Con­firmed by Congress
Name	County	Acres
87 Schedule of New Mexico Pueblo Land Claims Confirmed by Congress
Name	County	Acres
1. The Brazito Grant	Dona Ana14,808.07
2. Pedro Armendariz Grant No. 33	Sierra	352,504.51
3. Pedro Armendariz Grant No. 34	Socorro	3495,030.00
4. The Bosque del Apache Grant	Socorro	60,117.39
5. The Town of Casa Colorado Grant	Socorro	131,779.87
6. The Town of Belen Grant	Socorro	196,663.75
7. The Town of Tome Grant	Valencia	121,594.53
8. The Town of Manzano Grant	Torrance	17,360.97
9. The Town of Torreon Grant	Torrance	14,146.11
10. The Town of Tajique Grant	Torrance	7,185.55
11. The Mesita de Juana López Grant	Santa Fe	42,022.85
12. The San Cristobal Grant	Santa Fe	81,632.67
13. The Ortiz Mine Grant	Santa Fe	69,458.33
14. The Cañon del Agua Grant	Santa Fe	3,501.21
15. Nuestra Señora de la Luz Grant	Santa Fe	16,546.85
16. The Gaspar Ortiz Grant	Santa Fe57.18
17. The Ramon Vigil Grant	Los Alamos	31,802.92
18. The Agua Negra Grant	Guadalupe	17,361.11
19. The Jose L. Perea Grant	Guadalupe	17,712.00
20. The Preston Beck Grant	Guadalupe	318,699.85
21. The Anton Chico Grant	Guadalupe	378,537.50
22. The Antonio Ortiz Grant	San Miguel	163,921.68
23. The Pablo Montoya Grant	San Miguel	655,468.07
24. The Baca Grant (Float No.2)	San Miguel	99,289.39
25. The Town of Tecolote Grant	San Miguel	21,636.83
26.The Town of Las Vegas Grant	San Miguel	496,446.96
27. The Los Trigos Grant	San Miguel	9,646.56
28. The Canon de Pecos Grant	San Miguel	574.34
29. The Town of Mora Grant	Mora	827,621.01
30. The John Scolly Grant	Mora	108,507.64
31. The Maxwell Grant	Colfax	1,714,764.94
32. The Sangre de Cristo Grant	Taos	998,780.46
33. The Antoine Leroux Grant	Taos	126,024.50
34. The Las Trampas Grant	Taos	46,461.22
35. The Tierra Amarilla Grant	Rio Arriba	594,515.55
36. The Sebastian Martin Grant	Rio Arriba	51,387.80
37. The Town of Charnita Grant	Rio Arriba	1,636.29
38. The Baca Grant (Float No.1)	Sandoval	99,289.39
39. The Canon de San Diego Grant	Sandoval	116,286.19
40. The Ojo del Espíritu Santo Grant	Sandoval	113,141.15
41. The Town of San Isidro Grant	Sandoval	11,476.68
42. The San Pedro Grant	Sandoval	35,911.63
43. The Town of Tejon Grant	Sandoval	12,801.46
44. The Cebolleta Grant	Valencia	199,567.92
45. The Laguna Purchases	Valencia	101,510.78
46. The Town of Chilili Grant	Bernalillo	41,481.00
TOTAL		8,636,673.20
Jemez	Sandoval	17,510.45
Acoma	Valencia	95,791.66
San Juan	Rio Arriba	17,544.77
Picuris	Taos	17,460.69
San Felipe	Sandoval	34,766.86
Pecos	San Miguel	18,763.33
Cochiti	Sandoval	24,256.50
Santo Domingo	Sandoval	74,743.11
Taos	Taos	17,360.55
Santa Clara	Sandoval	17,471.12
Tesuque	Santa Fe	17,471.12
San Ildefonso	Santa Fe	17,292.64
Pojoaque	Santa Fe	13,520.38
Zia	Sandoval	17,514.63
Sandia	Sandoval	24,187.29
Isleta	Bernalillo	110,080.31
Nambe	Santa Fe	13,586.33
Santa Ana	Sandoval	17,360.56
Total		566,579.70
87 Schedule of Colorado Private Land Claims Confirmed by Congress
Name	County	Acres
The Las Animas Grant	Las Animas	99,650.96
The Rio Don Carlos Grant	Pueblo	48,778.25
The Baca Grant (Float No. 4)	Saguache	99,289.39
Total		247,718.60
87 Schedule of Arizona Private Land Claims Confirmed by Congress
Name	County	Acres
The Baca Grant (Float No. 3)	Santa Cruz	99,289.39
The Baca Grant (Float No. 5)	Santa Cruz	99,289.39
Total		198,649,550.28

[88] S. Exec. Doc. No. 170, 51st Cong., 1st Sess., 20-22 (1890).

[89] Report of the Commissioner of the General Land Office, 26 (1876); Report of the Secretary of the Interior, 21 (1887); and Julian, “Land Stealing in New Mexico,” 145 North American Review, 19-20 (1887).

[90] United States v. Maxwell Land Grant Company, 121 U.S. 325 (1887).

[91] Julian, “Land Stealing in New Mexico,” 145 North American Review, 20-25 (1887). The Canada Ancha Grant, which had been granted in response to a petition for a spot of land on which to plant a cornfield, was depicted on the sketch map filed in the Surveyor General’s Office as a 240,000-acre tract. Other claims equally as spectacular were noted by Julian.

[92] Ibid., 2. Julian certainly stretched the truth in the article. The facts are that in 1885 at the age of 68, he was forced by financial necessity to request an ap­pointment to some position. He wrote Cleveland, “Without some position … I shall be obliged … to end my life in a dismal scuffle for bread and butter…” His appointment to Surveyor General was made primarily in consideration of his having bolted the Republican Party in 1876. Williams, “George W. Julian and Land Reform in New Mexico, 1885-1889,” 41 Agricultural History 72 (1967).

[93] Headlight, September 19, 1886.

[94] 2 Twitchell, Leading Facts of New Mexican History, 462 (1912).

[95] Catron acquired nearly two million acres under 75 grants as fees for his legal services. It is estimated that he was part owner or attorney for the claimants of grants covering a total of six million acres of land. In 1893 he owned 50,000 acres under the Town of Mora Grant, 80,000 acres in the Preston Beck, Jr., Grant, an undivided 2/3 interest in the 78,000-acre Ojo de Espiritu Santo Grant, an undivided 1/2 interest in the 21,500-acre Town of Tecolote Grant, 7,600 acres under the Mesita de Juana Lopez Grant, 24,000 acres of the Piedra Tambre Grant, 11,000 acres of the Juan de Gabaldon Grant, 15,000 acres of the Baca Grant, and a portion of the Tierra Amarilla Grant. Hefferan, Thomas B. Catron, 156 (Mss., M. A. Thesis, University of New Mexico, Santa Fe, New Mexico) .

[96] S. Exec. Doc. No. 113, 49th Cong., 2d Sess., 2 (1887).

[97] The following is a list of the persons who held the office of Surveyor General of New Mexico from 1854 to 1893:

1. William Pelham, August 1, 1854, to August 29, 1860.
2. Alexander P. Wilbar, August 29, 1860, to October 9, 1861.
3. John A. Clark, October 9, 1861, to August 16, 1868.
4. Benjamin C. Cutler, August 26, 1868 to October 18, 1868. Cutler died in office on October 18, 1868. Chief Clerk David J. Miller served as Acting Surveyor General until May 15, 1869.
5. T. Rush Spencer May 15, 1869, to September 1872.
6. James K. Proudfit, September 30, 1872, to March 31, 1876.
7. Henry M. Atkinson, March 31, 1876, to July 29, 1884.
8. Clarence Pullen, July 29, 1884, to July 22, 1885.
9. George W. Julian, July 22, 1885, to September 17, 1889.
10. Edward F. Hobart, September 7, 1889, to August 2, 1893.

[98] S. Exec. Doc. No. 113, 49th Cong., 2d Sess., 3-8 (1887).

[99] H. R. Exec. Doc. No. 1, 40th Cong., 1 Sess., 534 (1886).

[100] Ibid.

[101] Ibid.

[102] Julian, “Land Stealing in New Mexico,” 145 North American Review, .2-31 (1887).

[103] Report of the New Mexico Bar Association, 22­23 (1890).

[104] Ibid., 28-31.

[105] Most of the claimants of these small tracts were ineligible to acquire title to their lands because they did not actually reside upon them as required by the homestead laws. This resulted from the peculiar custom of New Mexicans who lived in villages for protection against the hostile Indians but farmed individual tracts surround­ing the settlement.

[106] S . Exec. Doc. No. 170, 51st Cong., 1st Sess., 20-22 (1890).

[107] 12 Richardson, A Compilation of the Messages and Papers of the Presidents 5484 (1897).

[108] Each Surveyor General of New Mexico had recommended further legislation to solve the problem. A number of bills had been introduced in Congress, but each had failed to pass because the House of Representatives and Senate could not agree on the method. The House favored the creation of a commission similar to the one established in California. The Senate favored the adjudication of the claims in the local courts. The principal objections against using the courts were (1) that the proposal would force claimants whose families had held possession of their land under color of title for generations to go into court and prove their titles under penalty of loss; and (2) in effect, it would confiscate the lands of the humble rural small tract claimants whose lands were not worth the worry and expense of such an effort. Cong. Globe, 49th Cong., 2nd Sess., 2483-2492 (1887).

[109] 12 Richardson, A Compilation of the Messages and Papers of the Presidents, 5510 (1897).

[110] H. R. Bill No. 9798.

[111] Cong. Record, 51st Cong., 2nd Sess., 445-455 A copy of the pertinent parts of this debate is in Appendix “A”.

[112] Ibid., 455.

[113] Ibid.,3140.

[114] Ibid., 3191.

[115] Ibid., 3514.

[116] Court of Private Land Claims 854 (1891).A copy of this Act is set out in Appendix “B.”

[117] A copy of the Rules of the Court of Private Land Claims is set out in Appendix “C.”

[118] An Act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1896 and for other purposes, Chap. 177, 28 Stat. 805 (1895); An Act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1898, and for other purposes, Chap. 265, 29 Stat. 577 (1897); An Act making appropriations for the legislative, executive and judicial expenses of the Government for the fiscal year ending June 30, 1901, and for other purposes, Chap. 192, 31 Stat. 132 (1900); and An Act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1904, and for other purposes, Chap. 1007, 32 Stat. 1144 (1903).

[119] Joseph Rea Reed was born in Ashland County, Ohio, on March 12, 1835. His parents, William and Rosanna Lyle Reed, were natives of Pennsylvania. He attended the local common schools and was a student of the Academy of Hayesville. In 1857, at the age of 22, he moved to Adel, Iowa. Two years later, he was admitted to the bar and commenced the practice of his profession. In 1861 he offered his services to the government, and was commissioned a first lieutenant in the Second Iowa Battery of Light Artillery. He was promoted to the rank of Captain in 1864. His battery participated in the engagement against New Madrid Island No. 10, the two battles at Farmington, the battles of Iuks, Corinth, Jackson, Vicksburg, Tupelo, Hurricane Creek, Abbeville, Nashville and Mobile. Following his discharge from the Army in June, 1865, he returned to Adel and resumed the practice of law. Later that year he was elected State Representative where he served four years. In 1869 he moved to Council Bluffs and established a profit­able law practice. Three years later he became a District Judge —first by appointment and later by election. He held this position for eleven and a half years. He was elected as Judge to the Iowa Supreme Court in 1883. Five years later he was elected to the United States Congress. In 1891 President Harrison appointed him Chief Justice of the Court of Private Land Claims. When the Court was discon­tinued in 1904 he returned to Council Bluffs and resumed the practice of law. He passed away on April 2, 1925 at the age of 90. He was survived by his widow, Edith M. Evans, and a daughter, Miss Rosanna Reed. The Nonpareil, April 4, 1925.

[120] Thomas C. Fuller, the son of Thomas Fuller and Catherine Raboteau, was born in Fayetteville, North Carolina in February, 1832. Following the death of his father, the family moved to Franklin County, North Carolina, where their kindred lived. His surroundings during his boyhood were fortunate, for he was allied with the most respected persons in the community. He entered the University of North Carolina, where he was an apt scholar. In June, 1851, he left school to engage in the mercantile business, and, in 1855, entered the law school of Judge Pearson at Richmond Hill, North Carolina. He graduated the following year and, after passing the bar, began practicing law at Fayetteville. In politics he was an ardent Whig and was strongly in favor of preserving the Union, but he was a true Southerner with a courageous spirit. Therefore, once war broke out he was among the first to take up arms in support of the Confederacy. In April, 1861 he was com­missioned a Lieutenant in the Lafayette Light Infantry, which became Company F of the First North Carolina Regiment. He participated in the battles of Bethel, Virginia and Neuse River Bridge. In 1863 he was elected to represent the Fayetteville District in the Confederate Congress. When the war ended he returned to Fayetteville and the practice of law. After President Johnson, in 1865, declared North Carolina to have been reconstructed, he was elected to the Congress, but the House refused to seat him. Although he won more votes for that office during the election of 1868, the military officers, under whom the election was held, awarded the certificate of election to his opponent. Meanwhile, Fuller was gaining a reputation as a defender of the oppressed. In 1873 he moved to Raleigh, and became a member of the law firm of Merrimon, Fuller & Ashe, one of the leading firms in North Carolina. Following Senator Merrimon’s appointment to the Supreme Court, Fuller became a member of the firm of Fuller and Snow. In 1891 he was appointed to the Court of Private Land Claims. His duties at Santa Fe kept him away from his wife, Caroline Douglas Whitehead, and eleven children. He fell into bad health and passed away in 1901 at Raleigh, North Carolina. 1 Ashe, Biographical History of North Carolina, 277-286 (1905).

[121] William M. Murray was born at Blairsville, Georgia on June 27, 1838, and was of Scottish descent. He was educated in the common schools, and at an early day moved with his parents to Arkansas, later coming to Tennes­see and settling in Carroll County, which became his perma­nent residence. He was a graduate of Rush Medical College at Chicago. During the Civil War he espoused the Union cause and joined the army as a private, but soon rose to the rank of Second Lieutenant. He commenced the practice of law in 1868, and in the same year was elected to repre­sent Carroll County in the general assembly. In 1872 he was the Republican candidate for the Eighth Congres­sional District. On June 27, 1873 he was appointed United States Attorney for West Tennessee by President Ulysses S. Grant. In 1884 he was elected Railroad Commissioner of Tennessee. He was one of the Republican nominees for Supreme Judge in 1885. Two years later he was the Republican candidate for United States Senate. President Benjamin Harrison appointed to the Court of Private Land Claims in 1891. When that court was discontinued in 1904 he returned to Tennessee and became President of the Bank of Huntingdon. He was married twice, his first wife having died in 1861. A son was born of that union. He and his second wife had two children. He died in Huntingdon, Tennessee on November 28, 1907. The Carroll County Democrat, November 29, 1907.

[122] Wilbur F. Stone was born at Litchfield, Connecticut in 1833. In 1839 his father moved west. After brief successive residences in western New York, Michigan and Indiana, the family located in 1844 upon a large tract of farm land in Oskaloosa, in the then Territory of Iowa. When 18 years old, he studied at Asbury University ant Greencastle, Indiana, where he remained until the close of his junior year. He had earned his tuition by writing prize essays, and provided for his personal needs by teaching in the country schools during vacations. His senior year was spent at Indiana State University at Bloomington. After graduating, he commenced studying law while serving as a tutor in the classical department of the University, and graduated therefrom in 1858. He started practicing law in Evansville. For nearly a year he supplemented his income by serving as Editor of the Evansville Daily Enquirer. In the autumn of 1859 he went to Omaha, Nebraska on legal business, where he was detained for nearly a year. Partly to relieve the tedium and partly to provide a means of support, he became Assistant Editor of the Omaha Nebraskan. Having acquired the art of shorthand, then a rare accomplishment, he reported the 1859 proceedings of the Nebraska territorial legislature. In the spring of 1860 he moved to Tarryall, Colorado, a mining community, where he became a prospector, miner and practicing lawyer. Later he moved to Canyon City, Colorado. Upon the organization of Colorado as a Territory, he was elected as a representative to its first legislature. He served as Assistant United States District Attorney between 1862—1865. Following his marriage at Bloomington, Indiana in the winter of 1865—1866 to Sara Sadler, he moved to Pueblo, Colorado, where he engaged in the practice of law. In 1868 he was appointed District Attorney for the Third Judicial District. In his spare time he also served as Editor of the Pueblo Chieftan. He was an active promoter of the Denver and Rio Grande Rail­road and served as its General Attorney until 1877, when he was elected to the Colorado Supreme Court. In 1887 he was appointed as Judge of the Arapahoe County Criminal Court, in which position he served until the court was abolished in 1889 by the Colorado Legislature. He then moved to Denver and resumed the practice of law. In the summer of 1891 he was appointed Associate Justice of the Court of Private Land Claims by President Benjamin Harrison in response to requests from Colorado men of both political parties and in recognition of his ability and fitness. His intimate knowledge of the Southwest, the Spanish language, and the Mexican people, made him one of the most efficient members of the court. He was selected by the court to visit Spain to investigate the archives at Madrid for in­formation bearing upon private land claims in the Southwest. He stayed in Spain until 1904, when the court was abandoned. After his return to the United States, he resumed the practice of law at Denver. He was President of the Colorado Bar Association in 1908-1909. He served as United States Commissioner of the United States District Court of Colora­do from 1915 until his death on December 27, 1920. Twenty­-fourth Report of the Colorado Bar Association, 166 (1921), and 19 National Cyclopaedia of American Biography, 335 (1956).

[123] Henry C. Sluss was born in Tuscola, Illinois, on June 29, 1842. He served throughout the Civil War with distinction. At the close of the war he returned to Tuscola to become a law student in the office of Joseph G. Cannon. In 1870 he moved to Wichita, Kansas, where he commenced practicing his profession. He soon developed a large prac­tice. He was elected County Attorney and later District Judge, a position he later resigned. In 1891 he was appointed to the Court of Private Land Claims, where he performed his most distinguished public service. In 1904 he returned to Wichita, where he became the acknowledged leader of its bar, having prepared and “pushed through” the legislature the law under which it was incorporated. He also served as its first president. In 1872 he was married to Alice Green, and they had two daughters. He died on August 3, 1926. The Wichita Eagle, August 4, 1926.

[124] ­28 Journal of the Executive Proceedings of the Senate of the United States, 5-6 (1891).

[125] 33 Journal of the Executive Proceedings of the Senate of the United States, 108 (1901).

[126] Stone, A Brief History of the Court of Private Land Claims, 9-10 (1903).

[127] Matthew Givens Reynolds was born at Bowling Green, Missouri on November 19, 1854. He was the son of Dr. Stephen J. and Sophronia Givens Reynolds. He was edu­cated in the local public schools and the United States Naval Academy, from which he graduated in 1874. He served aboard the U.S.S. Plymouth and U.S.S. Tennessee. In 1877 he resigned from the service and entered St. Louis Law School. He was admitted to practice at the Pike County Bar in May, 1878. He promptly entered the private practice of his profession and became active in politics. In 1880 he was elected to the general assembly on the Republican ticket. In 1884 he made an unsuccessful race for Congress. Two years later he moved to St. Louis, where he practiced law —first with John B. Henderson, and later with James M. Lewis. He was elected president of the Republican League of Missouri in 1888. Three years later he was ap­pointed to the position of United States Attorney to the Court of Private Land Claims by President Benjamin Harrison. Following the disbandment of the court in 1904, he returned to St. Louis, where he re-entered the private practice of law with Thomas B. Harlan. Later that year he was elected to the position of Circuit Judge of St. Louis, which he held for four and a half years. Thereafter, he re-established his law partnership with Harlan. He married Mamie K. Flagg on November 11, 1880. Nine children were born of this union. His wife died in 1910. On December 1, 1911 he married Mrs. Minnie D. Griffith. He died of pneumonia on January 10, 1922. 3 Stevens, Centennial History of Missouri, 660-663 (1921); Post Dispatch, January 10, 1922.

[128] 28 Journal of the Executive Proceedings of the Senate of the United States, 6 (1891).

[129] Weekly New Mexican Review, March 9, 1893.

[130] In addition to the problem of translating the title papers, the court discovered that many of the laws and statutes affecting the cases had never been translated into English. Therefore during the busiest period of the court’s work there was a “little army” of translators, chiro­graphic experts, stenographers, typists, clerks, and special government agents at work preparing the cases for trial. Stone, A Brief History of the Court of Private Land Claims, 12 (1903). For the convenience of both bench and bar, Reynolds compiled and published translations of the Spanish and Mexican cedulas and laws most frequently referred to in the Southwestern private land claims. Reynolds, Spanish and Mexican Land Laws (1895).

[131]

131Schedule of Grants Confirmed by the Court of Private Land Claims in New Mexico
Name	County	Acres
1. Santa Teresa	Dona Ana	8,478.51
2. Refugio Colony	Dona Ana	11,524.30
3. J. M. S. Baca	Dona Ana	3,530.60
4. Santo Tomas de Iturbide	Dona Ana	9,622.34
5. Mesilla Civil Colony	Dona Ana	21,628.52
6. Dona Ana Bend Colony	Dona Ana	35,399.02
7. City of Socorro	Socorro	17,371.18
8. Sevilleta	Socorro	261,187.90
9. Pueblo of San Marcos	Santa Fe	1,895.44
10. Alamitos	Santa Fe	297.55
11. Sitio de Juana López	Santa Fe	1,085.53
12. Sitio de Los Cerrillos	Santa Fe	572.04
13. Los Cerrillos	Santa Fe	1,478.01
14. La Majada	Santa Fe	54,404.10
15. Caja del Rio	Santa Fe	66,848.78
16. F. A. Alamazan	Santa Fe	3,202.79
17. Pacheco	Santa Fe	581.29
18. Cañada de los Alamos	Santa Fe	12,068.39
19. S. de Vargas	Santa Fe	13,434.38
20. Galisteo	Santa Fe	260.79
21. Cañada Ancha	Santa Fe	200.82
22. Talaya Hill	Santa Fe	319.20
23. S. Ramírez	Santa Fe	272.17
24. Juan Gabaldon	Santa Fe	10,690.05
25. Town of Jacoma	Santa Fe	6,952.84
26. Cuyanunungue	Santa Fe	604.27
27. Cundiyo	Santa Fe	2,137.08
28. Santa Cruz	Santa Fe	4,567.60
29. San Miguel del Vado	San Miguel	5,024.30
30. Arroyo Hondo	Taos	20,000.38
31. Lucero de Godoi	Taos	61,605.48
32. Gijosa	Taos	16,240.64
33. C. de la Serna	Taos	22,232.57
34. Fernando de Taos	Taos	1,817.24
35. Rancho del Rio Grande	Taos	91,813.15
36. Santa Barbara	Taos	30,638.28
37. La Petaca	Rio Arriba	1,392.10
38. J. J. Lobato	Rio Arriba	205,615.72
39. Juan B. Baldez	Rio Arriba	1,468.57
40. Piedra Lumbre	Rio Arriba	49,747.89
41. Cañon de Chama	Rio Arriba	1,422.62
42. Town of Abiquiú	Rio Arriba	16,708.16
43. Plaza Blanca	Rio Arriba	8,955.11
44. Plaza Colorado	Rio Arriba	7,577.92
45. Polvadera	Rio Arriba	35,761.14
46. A. Abeita	Rio Arriba	721.42
47. Ojo Caliente	Rio Arriba	2,244.98
48. Black Mesa	Rio Arriba	19,171.35
49. Bartolome Sánchez	Rio Arriba	4,469.83
50. F. M. Vigil	Rio Arriba	8,253.74
51. N. S. de Rosario	Rio Arriba	14,786.58
52. Cañada de Santa Clara	Rio Arriba	490.62
53. Cañada de Cochiti	Sandoval	19,112.78
54. Ojo de Barrigo	Sandoval	16,079.80
55. Ojo de San Juan	Sandoval	4,336.91
56. Santa Rosa de Cubero	Sandoval	1,945.50
57. Santo Domingo & San Felipe	Sandoval	1,070.69
58. Angostura	Sandoval	1,579.48
59. Ranchita	Sandoval	4,945.24
60. Town of Bernalillo	Sandoval	3,404.67
61. Huertas	Sandoval	4,763.85
62. Town of Alameda	Sandoval	89,346.00
63. Bosque Grande	Sandoval	2,967.57
64. Chaca Mesa	Sandoval	47,258.71
65. N. S. de la Luz	Sandoval	39,184.47
66. Agua Salada	Sandoval	10,693.98
67. Cañada de los Álamos	Sandoval	4,106.66
68. B. Montana	Sandoval	44,070.66
69. F. Tafoya	McKinley	4,340.28
70. B. Fernández	McKinley	25,424.28
71. San Mateo Spring	Valencia	4,340.28
72. Town of Cubero	Valencia	16,490.94
73. Pueblo of Laguna	Valencia	17,328.91
74. Antonio Sedillo	Valencia	86,249.09
75. Sedillo and Gutiérrez	Valencia	22,636.92
76. San Clemente	Valencia	37,099.29
77. Lo de Padillo	Valencia	51,940.82
78. N. de Chavez	Valencia	46,244.94
79. E. Gallegos	Bernalillo	35,084.78
80. Town of Atrisco	Bernalillo	82,728.72
81. Pajarito	Bernalillo	28,724.22
82. Cañon de Carnue	Bernalillo	2,000.59
Total		1,934,986.39
131 Schedule of Grants Court of Private Land Confirmed by the Claims in Arizona
Name	County	Acres
1. Babocomari	Santa Cruz	33,792.20
2. Buena Vista	Santa Cruz	5,733.41
3. San Rafael del Valle	Santa Cruz	17,474.06
4. San Bernardino	Cochise	2,382.86
5. San Rafael del Valle	Cochise	17,474.93
6. Boquillas y Nogales	Cochise	17,355.86
7. San Ignacio de la Canoa	Pima	17,203.21
8. San Jose de Sonoita	Pima	5,123.42
Total		116,539.95

[132] Annual Report of the Attorney General of the United States, 95-109. (1904).

[133] Chaves v. United States, No. 57 (Mss., Records of the Ct. Pvt. L. Cl.) .

[134] 4 Journal 354 (Mss., Records of the Ct. Pvt. L. Cl. ) .

 

Solution of the Southwestern Private Land Claim Problem; J.J. Bowden’s research on land grants