by J. J. Bowden
Governor Francisco Cuervo y Valdez issued an Order[1] on August 25, 1794 which prohibited Spaniards, mulattoes, and Negroes from settling in the pueblos and Indian towns on the theory that the association was bad for the Indians. However, by the middle of the eighteenth century, many Spaniards and half-castes were living amongst the Pueblo Indians and had appropriated large portions of the pueblo lands. In many cases they had gained control of the government of the pueblos.[2]
At first, the Pueblo Indians encouraged the influx of Spaniards and half-castes into their communities in order to assist them in warding off the incursions of the hostile Indians. However, by 1794 the pacification of the indios barbaros nearly had been accomplished as a result of the fulfillment of the General Indian Policy which had been formulated by Commandant General Teodoro de Croix.[3] Whereupon, the Taos Indians commenced agitating for the ouster of all non-Indians from their Pueblo, To ease mounting tension, most of the non‑Indians moved out of the Pueblo and formed a new settlement just south of the southwest corner of the Pueblo League and petitioned Governor Fernando Chacon for a grant covering the surrounding lands. Chacon granted the petition and ordered the Alcalde of Taos to give possession of the place known as Don Fernando de Taos to the sixty-three families who had formed the new settlement. On May 1, 1796 Alcalde Antonio Jose Ortiz placed the grantees in royal possession of the grant and designated the following natural objects as its boundaries:
On the north, the lands of the Indians of Taos; on the east, the Canon of the Rio de Don Fernando de Taos; on the south, the brow of the ridge on the other side of the river; and on the west, the lands of Antonio Jose Lavato below and the middle road above.
Following the delivery of possession, Alcalde Ortiz informed the grantees that the concession was a community grant and any person who wished to join the colony should be welcomed. The grantees were also directed to assist in their on defense by arming themselves with firearms or bows and arrows at the time of their settlement and those armed with only bows and arrows were under penalty of expulsion, to acquire firearms within two years.
Since the livelihood of the inhabitants of Don Fernando de Taos depended upon the success or their irrigated crops, they petitioned Chacon for a grant covering the surplus waters from the Taos and Lucero Rivers. The governor granted their request and on November 7, 1797 Alcalde Ortiz gave them a certificate evidencing their appropriation of such water rights. As a result of the steady growth of the town, its inhabitants became increasingly anxious to secure individual allotments covering the lands upon which they were living and cultivating. To dispel their fears, Governor Chacon ordered the Alcalde of Taos to partition the grant amongst its inhabitants. Pursuant thereto, Alcalde Antonio Jose Romero made the requested allotments on August 9, 1799.[4]
Although Don Fernando de Taos or “Taos”, as it was usually called, was primarily an agricultural settlement, it developed into the principal trading center of New Mexico. During the latter part of the eighteenth and first part of the nineteenth centuries, its gala annual trade fair attracted traders, including representatives of hostile plains tribes, from all over the southwest, it was also was the spawning ground for the uprisings of 1837 and 1846. Despite such festivities and historic events, Taos has remained basically a small but picturesque Spanish town.
The inhabitants of the Don Fernando de Taos Grant petitioned[5] Surveyor General Henry M. Atkinson on January 21, 1878 seeking the confirmation of the grant. Atkinson found the grant papers to be genuine and, in his Report dated June 10, 1881[6], recommended its approval by Congress in accordance with the boundaries set forth in the Act of Possession. Congress, as in all other private land claims from New Mexico which had been pending since 1879, failed to act upon the matter. Meanwhile, a preliminary survey of the grant was made by Deputy Surveyor John Shaw in June, 1883 for 1,899.89 acres.[7]
Juan Santistevan, on behalf of himself and the other heirs, legal representatives and assigns of the original grantees, filed suit[8] against the United States in the Court of Private Land Claims on February 28, 1893 in an effort to secure the recognition of the grant. He pointed out that the United States continuous failure to recognize the grant had clouded the title to the lands of more than 1,500 residents of Taos County, “who were claiming under one of the best known and widely accepted grants in the state.” The case came up for trial on September 28, 1897, at which time plaintiff offered Archive No. 883 as his muniment of title together with a large amount of oral testimony showing that the inhabitants of Taos had held peaceful possession of the premises for “many years past” but in no way connected them to the original grantees. The government asserted two special defenses. The first was that under the doctrine of the Sandoval Case,[9] confirmation should be limited to the area covered by the lands allotted to the inhabitants of the grant on August 9, 1799, In its second defense the government argued that the east boundary of the grant was located at the western end of the canon of the Rio de Fernando de Taos instead of the eastern end or head of the canon as contended by the plaintiff. Under the plaintiffs’ construction, the grant would contain approximately 38,400 acres, since the canon ran almost due east and west a distance of fifteen miles.
The Court, on October 5, 1897, announced its decision[10] sustaining the government in its contentions and rejecting the claim insofar as it covered all unallocated lands. However, since the record in the case had not connected the present occupants of the grant with the original allottees, the Court granted the plaintiff until the following term of court to furnish data necessary to locate the boundaries of the individual allotments and establish their ownership. On September 4, 1899 further testimony was taken concerning the extent of the allotments and the succession of title from the original grantees. On the following day, the Court held[11] that the allotments located within the boundaries of the Pueblo of Taos Grant were not subject to confirmation. The Court held that while it could reject such allotments on the grounds that they conflicted with a patented grant and that it did not have the power to decide the title to conflicting claims, it had decided to also reject the claim insofar as it covered the allotments within the Pueblo of Taos Grant on the ground that the question had previously been adjudicated by the Mexican authorities. In support of this contention, the Court referred to certain Mexican proceedings held in 1815 in which it was held that neither the Governor nor any other Spanish official in New Mexico could legally grant any portion of the lands belonging to the Pueblo.[12] Therefore, all allotments made under the Don Fernando de Taos Grant, insofar as they covered any land lying within the out boundaries of the original allotment[13] the Court decided to confirm title to all of the lands located within the boundaries of the grant, as surveyed by John Shaw and situated “outside the Pueblo of Taos Grant” to the heirs, legal representatives and assigns of the settlers named in a list attached to Alcalde Romero’s Act of Possession dated August 9, 1799. Continuing, he Court held that if there were any unallocated strips or gores located within the boundaries of such survey, they were to be owned in common by all the parties to whom the grant was confirmed.
Pursuant to Section 10 of the Act of March 1, 1891[14] Deputy Surveyor Jay Turley was awarded a contract to make an official survey of the grant. Turley surveyed the grant between May 31 and June 8, 1901 and. found the grant, as surveyed by Shaw, conflicted with the Pueblo of Taos Grant by 16.17 chains or 82.65 acres and also overlapped the Cristobal de la Serna Grant by 421.89 acres. Since the Decree of Confirmation expressly excluded all lands within the Pueblo of Taos Grant, the Turley Survey relocated the north line of the grant 16.17 chains south of Shaw’s north line but did not exclude the lands in conflict with the Cristobal de la Serna Grant. A patent covering the 1,817.34 acres contained in the Turley Survey was issued to the interested parties on February 25, 1909.[15]
The rejection of the grant, insofar as it covered the allotments located within the Pueblo of Taos Grants resulted in the institution of a great deal of litigation between the Indians and the non-Indians, who were in possession of hundreds of small tracts of land based upon allotments made under the Don Fernando de Taos Grant and located in the southwest corner of the Pueblo league. In a number of these cases, the settlers were able to prove that they had perfected limitation titles to their lands.
The constant friction between non-Indians claimants and the Pueblo Indians culminated in the passage of the Pueblo Land Act[16] on June 7, 1924. This Act provided for the establishment of a Board which was charged with the responsibility of the determining of the status of all non-Indians land claims lying within the Pueblo Grants. The titles of non-Indians were to be sustained if they could show:
(a) that they or their predecessors in interest had adverse possession of the premises claimed under color of title between January 6, 1902 and June 7, 1924 and had properly paid taxes thereon between said dates; or
(b) that they or their predecessors in interest had adverse possession of the premises claimed with claim of ownership but without color of title between March 16, 1889 and June 7, 1924 and had properly paid taxes thereon between said dates.
The Board, by unanimous decision, had authority to declare all claims meeting one of these requirements as valid title and extinguishing the right of the Pueblo Indians in the lands contained therein. Compensation was to be paid to the party (either Indian or non-Indians) whose title was extinguished. Title to the lands covered by many of the allotments located within the Pueblo of Taos Grant were adjudicated by the Board. By 1938, the Board had completed its investigations and the Pueblo land titles, for the first time since the seventeenth century, finally were freed from controversy.[17]
[1] Archive No. 1340 (Mss., Records of the A.N.M.).
[2] Bolton, The Spanish Borderlands, 183‑184 (1921).
[3] Jones, Pueblo Warriors & Spanish Conquest, 162 (1966).
[4] Archive No. 883 (Mss., Records of the A.N.M.).
[5] The Don Fernando de Taos Grant, No., 125 (Mss., Records of the S.G.N.M.).
[6] Ibid.
[7] Ibid.
[8] Santistevan v United States, No .1A9 (Mss., Records of the Ct. Pvt. L. Cl.).
[9]United States v. Sandoval, 167 U.S. 278 (1897).
[10] 3 Journal 298 (Mss., Records of the Ct. Pvt. L. Cl.).
[11] 4 Journal 197 (Mss., Records of the Ct. Pvt. L. Cl.).
[12] Archive No. 1354 (Mss., Records of the A.N.M.).
[13] These allotments were narrow tracts fronting on the river with the majority being only 63 varas wide. After a few generations, they were subdivided into numerous extremely narrow tracts as a result of title passing to children of large families under the laws of descent and distribution upon the intestate deaths of their parents. In 1901 many of the tracts claimed in severally by the inhabitants of the grant were only a few feet wide.
[14] Court of Private Land Claims Act, Chap. 539, Sec. 10, 26 Stat, 854 (1891).
[15] The Don Fernando do Taos Grant, No. 125 (Mss., Records of the S.G.N.M.).
[16] Act to quiet the title to lands within Pueblo Indian land grants, and for other purposes, Chap. 331, 43 Stat. 636 (1924).
[17] Brayer, Pueblo Indian Land Grants of the “Rio Abajo”, New Mexico, 27‑31 (1931).
Fernando de Taos Grant; J.J. Bowden's research on land grants;