Natural Resources and the Law in Hispanic Arizona and New Mexico

a lecture by ASM ethnohistorian Michael M. Brescia, Ph.D., given April 28, 2008, at the Arizona Historical Society in Tucson.

This lecture was part of the free lecture series Southwestern Roots in Central Mexico: 4,000 Years of Cultural Interaction culminating in the travel tour Tucson, Tula & Tlaxcala: 4,000 Years of Cultural Interaction

The Treaty of Guadalupe Hidalgo

• February 2, 1848
• U.S. invasion had sequestered half of Mexico’s national territory
• Terms of the treaty: $15 million and assumed the costs of claims made by U.S. citizens against the Mexican government ($3.25 million)=$18.25 million
• Also provided ample protection for the property rights of those Mexicans who suddenly found themselves residing in the United States
• These protections could be passed on to their heirs and other successors-in-interest.

International Law

• Law of State Succession: curtail the most egregious effects of territorial change
• Legal reasoning: property and property rights acquired under a former sovereign must be respected by the successor state.
• What if the successor state wants to alter or modify or abolish property rights?

Deep Roots in the U.S. Historical Experience

• 1803, Louisiana Purchase
• 1819, Adam-Onís Treaty
• 1833, Chief Justice John Marshall
• 1848, Treaty of Guadalupe Hidalgo is a classic example of applying the law of state succession to citizens prejudiced by a change of territorial possession

Article VIII of the Treaty of Guadalupe Hidalgo

• “Mexicans now established in the territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue to reside where they now reside….retaining their property which they now possess…in the said territories, property of every kind now belonging to Mexicans…shall be inviolably respected.”

Treaty Negotiators and Legislative Branches of the U.S. and Mexican Governments

• Could have limited the kind of property to be protected
• Following Mexican civil law, they could have limited the protection to only personal property as opposed to real property
• They could have even qualified the nature of the protection itself
• But they agreed upon the phrase, “property of every kind shall be inviolably respected.”
• Continuity in the law following Mexican independence

The Civil Law of Property in Spain and Mexico

• Propiedad perfecta, groundwater.
• Propiedad imperfecta, surface water, no recognition of riparian rights, merced de agua, repartimiento de aguas, land classification (e.g., tierras de pan llevar).
• Propiedad usufructuaria, usufructuary, use but not ownership, grazing, woodcutting

Colonial Period Water Competitors

• Parts of Zacatecas, Chihuahua, Sonora, Arizona: sprawling ranches, mines, missions, and presidios
• New Mexico: Spanish towns, Indian towns, informal agricultural communities (agrarian clusters or acequia communities)
• Contemporary examples

Settlement Patterns in Colonial New Mexico

• Only a handful of formal Spanish towns: Santa Fe (1610), Santa Cruz de la Cañada (1695), Albuquerque (1706), San Miguel del Bado (1794), and Don Fernando de Taos (1796)
• The rural agricultural cluster proved a viable alternative to formal town life
• These small rural communities were often found along the tributary streams of the Rio Grande

The Rural Acequia Community Emerged in One of Two Ways

• Poblador principal
• No expectation on the part of the Spanish crown that these settlement clusters would ultimately result in the establishment of a formal town
• Recruiting efforts focused on families, former neighbors, and groups tied by compadrazgo
• Single individual free to sell portions of his land grant in subdivision

Hispanic Settlers in New Mexico, 16th–19th centuries

• Understood the fundamentals of Spanish property law and the systems of land tenure and water usage inherited from Spain and central Mexico
• They knew the difference between private property and community property
• Example -- Rancho del Rio Grande grant in the Taos Valley, 1795, ten original settlers, “all of us collectively and unanimously, and each of us individually appear before you in the best legal form…”

Acequia Communities

• Generally small in size, dependent on gravity flow, sometimes longer
• By Mexican independence, these small acequia communities outnumbered the often large water ditches governed by town councils
• Primary institution for allocating and managing water used for agricultural purposes; fundamental instrument for rural production
• Enjoyed legal status, persona jurídica
• Today these agrarian clusters assert their rights under the Treaty of Guadalupe Hidalgo, which obliges the U.S. court system to act as surrogates for the Spanish and Mexican civil law of property.

Common Lands and Usufruct

• Formal Spanish towns as well as informal acequia communities set aside certain land as common property
• Theory behind common land: no one had the right to appropriate for themselves natural resources produced without human intervention
• Uses of common land
• Equal access
• Who owned the common lands?
• Usufruct, usufructo in Spanish, each citizen had a property interest in the commons
• Right to use and enjoy the property of another, and to draw profit from it provided that such an act does not alter the purpose or substance of the property being used

Post-1848 New Mexico

• Profound clash of legal cultures
• Anglo common law vs. Hispanic civil law
• New Mexico Territorial Courts
• Territorial Legislature, 1876
• U.S. Supreme Court
  • U.S. v Sandoval (1897)
  • example of San Miguel del Bado grant
  • Land & Water constitute more than mere property for the rural population

Mexican Expansion in Arizona, 1820s-1830s

• To colonize the grasslands of southeastern Arizona, need to use a legal instrument (land grant) as well as material occupation (criollo cattle)
• Most Hispanic land grants awarded after Mexican independence: 1821 Tomás & Ignacio Ortiz (Canoa Land Grant); 1822 Ignacio Pérez, east of Douglas; 1825 León Herreros, San José de Sonoita; 1825 Ramón Romero & others, San Rafael Valley
• Five more grants issued by the Mexican government between 1826 & 1831.

Land Grants & Land Grabs in Arizona

• End of the mission system
• Tumacácori, case in point
• O’Odham lands along the Santa Cruz
• 1844, Mexican government declared that the mission lands had been abandoned; auctioned off for 500 pesos to Francisco Alejandro Aguilar
• Without O’Odham consent

Ambitious Effort to Roll Back the Apache Frontier

• Land grants established Mexican title to much of the Santa Cruz & San Pedro valleys
• Extend Mexican domain over the high plains south of the Chiricahua Mountains
• Elías-González Family
• From colonial missions & presidios to private capital
• Isolated adobe ranches; Apache attacks; large-scale ranching did not return to the area until the 1880s

This lecture series was made possible in part by a grant from the Arizona Humanities Council and was designated a "We the People" project by the National Endowment for the Humanities.