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Response to 2004 GAO Report (2008)

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Response to 2004 GAO Report (2008) SUSANA MARTINEZ GOVERNOR SAMUEL L. OJINAGA ACTING DIRECTOR RICHARD E. MAY CABINET SECRETARY STATE OF NEW MEXICO DEPARTMENT OF FINANCE AND ADMINISTRATION LOCAL GOVERNMENT DIVISION Bataan Memorial Building, Suite 201 ♦ Santa Fe, New Mexico 87501 (505) 827-4950 ♦ FAX No. (505) 827-4948 The New Mexico Land Grant Council has printed this document, prepared by David Benavídez and Ryan Golten for the New Mexico Attorney General in August 2008, because it considers it to be one of the most important documents on the legal history and contemporary issues faced by community land grants. It is a response to another document, a report prepared by the U.S. General Accountability Office (GAO) in June 2004, which has received far greater circulation. As stated in the GAO’s letter to Senators Jeff Bingaman and Pete V. Domenici, and to then Congressman Tom Udall, the report was prepared at congressional request and sought to describe the confirmation procedures by which the United States implemented the property protection provisions of the Treaty of Guadalupe Hidalgo with respect to New Mexico community land grants, and to assess the results of those procedures. It also identified and responded to concerns regarding those procedures, as implemented between 1854 and 1904, and identified options Congress could consider in responding to the remaining concerns among community land grant heirs. The GAO report concluded that the procedures employed to confirm community land grant claims between 1854 and 1904 did not violate due process. Also, the GAO purposely did not express an opinion on whether the United States fulfilled its Treaty obligations as a matter of international law. It recognized that Congress applied different standards for grant confirmation at different times but concluded that this fact “did not indicate any legal violation or shortcoming.” While the U.S. has a fiduciary relationship with the Indian Pueblos in New Mexico and protects the common lands the Pueblos received under Spanish land grants, it affirmed that the U.S. does not have similar obligations to protect the common lands of non-Pueblo community grantees. The GAO report did acknowledge that there continue to exist concerns that the United States did not address community land grant claims in a fair and equitable manner, and offered five options that Congress could consider in response to those concerns, ranging from doing nothing to consider transferring federal land to communities that did not receive all of the acreage originally claimed or making financial payments to claimants’ heirs for the non-use of land claimed but not awarded. These findings and options appear in Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, GAO-04-59, June 2004. The report prepared by David Benavídez and Ryan Golten of New Mexico Legal Aid for the New Mexico Attorney General’s Office is titled Report to the New Mexico Attorney General -- A Response to the GAO’s 2004 Report “Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico and was released in photocopy form in August, 2008. This report challenges many of the findings and legal arguments presented in the GAO report. We recommend its reading to you. Sincerely, The New Mexico Land Grant Council Juan Sánchez, Chair Lee Maestas, Vice Chair Macario Griego Leonard Martínez Rita Padilla-Gutiérrez 1 2 3 4 5 TABLE OF CONTENTS Introduction.....................................................................................................................................8 I. The Treaty of Guadalupe Hidalgo and the Duty Owed...........................................................9 A. Self-Executing Treaties and the Early Evolution of Supreme Court Decisions...........................................................................................................................10 B. The Signing of the Treaty of Guadalupe Hidalgo.....................................................................14 C. The Court’s Narrowing Implementation of Federal Legislation...............................................18 D. Federal Remedies......................................................................................................................23 II. Grants Improperly Counted by GAO as “Confirmed”........................................................24 A. Historical Context of Community Land Grants........................................................................25 B. Erroneous Confirmations of Community Grants to Individuals as Private Grants..............................................................................................................................27 C. Erroneous Confirmations of Community Grants as Tenancies in Common, Setting in Motion the Privatization of Otherwise Community-Owned Lands……………........30 i. Tenancies-in-Common: A Federal Invention for Community Land Grants…………........32 ii. Consequences.......................................................................................................................39 iii. Case Study: The Town of Mora Grant...............................................................................44 D. The GAO Counted as “Confirmed” Even Those Grants Whose Confirmation, Under United States v. Sandoval, Was Fundamentally Erroneous and Whose Acreage Was Vastly Reduced....................................................................................................47 E. Arguably the Vast Majority of Community Land Grants Were Not Confirmed as They Would Have Been Under Mexican and Spanish Law..................................................50 III. Tameling v. United State Freehold Co. and the Mythical Montoya Remedy......................53 A. Contrary to the GAO’s Claims, Tameling Precluded State Court Challenges to Federal Land Grant Confirmations............................................................................................54 B. The Quitclaim Language Did Not Alter the Effect of Tameling...............................................56 6 C. The Mythical Montoya Remedy................................................................................................59 IV. Post-Confirmation Land Losses...........................................................................................60 A. Boundary Conflicts...................................................................................................................61 B. Myth of “Voluntary” Post-Confirmation Action by Heirs........................................................66 V. Rejected Claims and Acreage..................................................................................................73 A. Grants Rejected, Withdrawn and Dismissed Due to Erroneous Holdings................................73 B. Federal Delay Resulting in Grants Faring Worse......................................................................75 VI. Due Process Concerns.............................................................................................................82 A. Surveyor General Era................................................................................................................83 B. Court of Private Land Claims Era.............................................................................................91 C. The Finality of Confirmations Under Both Processes...............................................................92 Conclusion......................................................................................................................................94 Appendix A: Historical Synopses of Community Land Grants in New Mexico....................97 Appendix B: Land Speculation in New Mexico During the Territorial Period...................170 7 INTRODUCTION1 Much has been said and written about the land grant confirmation process in New Mexico under the Treaty of Guadalupe Hidalgo (“Treaty”). In 2004, the federal government finally published a long-awaited study assessing whether the federal government fulfilled its obligations under the Treaty and U.S. Constitution, in light of the massive losses of community land grant lands in New Mexico following the Treaty. General Accounting Office, Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, June 2004 (“GAO”). The GAO concluded the federal government fulfilled its duties under the Treaty and Constitution, and that any remedy for the land losses was up to Congress as a matter of policy. This Response is an attempt to address that conclusion and the GAO’s analysis. Our critique of the GAO Report is divided into the following topics: (1) the GAO’s analysis of the duty owed under the Treaty of Guadalupe Hidalgo and its interpretation of the Congressional actions implementing that duty; (2) the fact that most community grants were not confirmed as they existed under Mexican and Spanish law and the disastrous effects of those mis-confirmations; (3) the GAO’s mistaken reliance on the District Courts decision, Montoya v. Tecolote, later reversed (Ct. App.), cert. pending (NM SCt), and the notion that wrongful confirmations could be collaterally attacked in state court; (4) the fact that many post- confirmation land losses were direct results of the improper nature of confirmations, rather than attributable simply to the actions of land grant heirs themselves; (5) an analysis of the cases and 1 The authors would
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