H.R. 6365 — what changed

The Western and Southwestern United States have a unique history regarding land acquisition and ownership consequent to the substantial number of Spanish and Mexican land grants-mercedes. These land grants-mercedes were an integral part of the colonization and growth of the region before the United States acquisition under the Treaty of Guadalupe Hidalgo.

Under the laws of Spain and Mexico, land grant-mercedes included thousands of acres of land that was owned and used by the communities, within the land grant-merced boundaries, in common. This included guaranteed right to the use of water, forest, pasture, minerals and other natural resources located on the common lands.

The Treaty of Guadalupe Hidalgo as affirmed by the Protocol of Querétaro protects property rights of land grants-mercedes in the territory ceded by Mexico to the United States of America.

Property rights include land, land title, water rights, natural resource rights, mineral rights, and rights to physical access.

Various provisions of the Treaty of Guadalupe Hidalgo have not yet been fully implemented in the spirit of the United States Constitution, article VI, section 2.

The Gadsden Purchase incorporated by reference the property protection provisions of the Treaty of Guadalupe Hidalgo.

Land claim commissions, appointed by Congress, have successfully examined disputed land possession claims.

The United States Government has recognized and upheld usufruct rights for other indigenous groups.

Between 1968 and 1981, the Forest Service recognized the uniqueness of the land tenure history in New Mexico and instituted what became known as the Northern New Mexico Policy for the Southwest Region to address the socioeconomic and cultural needs of the forest-dependent land grant-merced communities in New Mexico.

The United States General Accounting Office Report to Congressional Requesters, dated June 2004, numbered GAO–04–59, and entitled the “Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico”, found the New Mexico land claims confirmation process was inefficient and caused hardships to claimants. Such report provided the following options for congressional consideration in addressing land grant-merced claims:

Consider establishing a commission or other body to reexamine specific Land Grant-Merced claims that were rejected or not confirmed for the full acreage claimed.

Consider transferring Federal land to communities that did not receive all of the acreage originally claimed for their community land grants.

Consider making financial payments to claimants’ heirs or other entities for the non-use of land originally claimed but not awarded.

The General Accounting Office also noted that “Congress may disagree with the U.S. Supreme Court’s Sandoval 1897 decision and decide that it should be “legislatively overruled”, by addressing the affected land grants in some way or taking other action”.

The State of New Mexico’s response to such report, dated August 14, 2008, and entitled “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””, found the following:

The Federal Government had a duty to correctly confirm land grants-mercedes in New Mexico and that duty was understated by the analysis of the General Accounting Office.

Most land grants-mercedes were not confirmed by the Federal Government in the correct type of land ownership pattern, as granted by Spain or Mexico to be held in common by the entire community, but rather the vast majority were confirmed as privately owned by the family of a single petitioner or as tenancy-in-common. The tenancy-in-common designation was foreign to Spanish and Mexican jurisprudence and left land grants-mercedes subject to partition suits that resulted in the significant loss of common land. These facts were omitted by the General Accounting Office report.

Most postconfirmation land losses were the direct result of the improper nature of the Federal confirmation, and erroneous Federal confirmations could not be remedied in the court system, contrary to the analysis of the General Accounting Office.

Many land grants-mercedes or their common lands were improperly rejected in their entirety, others lost substantial amounts of acreage by improper application of boundary descriptions, and others were foreclosed from being confirmed by earlier adverse rulings.

The Federal Government in a great many cases did not provide constitutionally sufficient notice of its confirmation activities, which contributed directly to many land grants-mercedes being erroneously misconfirmed.

The Federal Government and various Federal agents and officials involved in the confirmation process helped create a climate in which land speculators were able to undermine the adjudication process to dispossess land grants-mercedes of their common lands.

Compared to their original claims, land grants-mercedes suffered enormous loss of land to the Federal Government and others. This loss negatively impacted the economic, environmental, and social well-being of these communities.

The following land grant-merced priority rights were protected by the Treaty of Guadalupe Hidalgo:

Water rights, including all surface, ground, and runoff water within the former common lands that are now under the management of the Federal Government.

Natural resource rights, including gathering of fuelwood, timber, vegetation, vegetation products, rocks, soils, and grazing and watering of livestock that are now under the management of the Federal Government.

Mineral rights, including any and all surface and subsurface minerals located within the existing and former common lands as well as rights to compensation for minerals extracted from former common lands now under management of the Federal Government.

Adjudication process— The term adjudication process—

means the processes required by treaty by which the United States recognized land claims between 1854 and 1904 in the territories ceded under—

the Treaty of Guadalupe Hidalgo; and

the Gadsden Purchase; and

includes the processes provided for in the 1854 Act establishing the Office of Surveyor-General of New Mexico (10 Stat. 308) and the 1891 Act establishing the Court of Private Land Claims (26 Stat. 854).

Claim— The term claim means the declaration of property rights protected by the Treaty of Guadalupe Hidalgo vested in a land grant-merced, including—

land, land title, mineral, and natural resource claims; and

water rights.

In general— The Commission shall conduct a hearing on each qualifying petition, as described in subsection (b), to formulate a recommendation on restitution to the claimant, of the possible restitutions described in subsection (c).

Designation of location— The Commission shall designate one or more locations in the claimant’s State in which to hold such hearing.

Right to testify— All persons having an interest in the land involved in a qualifying petition shall have the right, upon notice, to be present and testify before the Commission during such hearing.

Hearing process— As part of such hearing, the Commission shall—

the impact to the land grant-merced and its associated communities resulting from the failure of the United States to properly recognize, during the adjudication process, a land grant-merced boundary, as it existed in 1854;

the impact to the land grant-merced and its associated communities resulting from the failure of the United States to act on a land grant-merced claim made during the adjudication process;

the impact to the land grant-merced and its associated communities resulting from the rejection of a land grant-merced claim made during the adjudication process;

the impact to the land grant-merced and its associated communities resulting from the incorrect confirmation by the United States of a Land Grant-Merced as a tenancy-in-common;

the impact of prior adjudication decisions made by the United States on the submittal of subsequent land claim petitions with respect to the land grant-merced;

the impact to the land grant-merced and its associated communities resulting from the failure of the United States to provide adequate due process to land grant-merced during the adjudication process;

the impact to the land grant-merced and its associated communities resulting from the misconduct or direct conflict of interest of United States officials during the adjudication process;

review existing Federal land use policies governing land identified in the qualifying petition;

identify and report all private and public leases on land identified in the qualifying petition, including lease type, term, and owner;

determine the value of revenues generated and resources removed from land identified in the qualifying petition, through sale, lease, permit, and all other means granted to any person not associated with the claimant, during the period it was taken out of control of the claimant until the time of such hearing; and

review and examine existing laws, memorandums of understanding, agreements, and easements relating to the management and use of land identified in the qualifying petition.

Legal standards— When evaluating qualifying petitions, the Commission shall apply international treaty law and laws pertaining to the succession of States. The Commission shall also evaluate qualifying petitions based on Spanish and Mexican civil and customary law, principles of equity, and customs and usages in effect in what is now the Southwestern United States, from 1692 up to the ratification of the Gadsden Purchase in 1854.

Elements of qualifying petition— For purposes of this Act, a qualifying petition is one that—

is received by the Commission not later than the date that is 5 years after the date of the enactment of this Act;

is made pursuant to an official resolution adopted by the claimant; and

includes the following information:

The name and address of the claimant and a name, address, telephone number, and if available, email address of the point of contact for the claimant.

Documentation showing the claimed boundaries of the relevant land grant-merced, including a legal survey or, if a survey is not readily available, a sketch map or geographic information system rendering thereof.

A summary of the claims being made and the requested restitution for each claim.

Possible restitutions— The Commission may, under subsection (a), recommend as restitution that the Secretary concerned—

convey Federal land to the claimant;

grant the claimant stewardship rights to all or part of Federal land;

grant the claimant priority access and use rights to all or part of Federal lands for—

harvesting of natural resources, such as fuelwood, timber, minerals, rock, soils, vegetation, and vegetation products;

grazing and watering of livestock; or

hunting and fishing;

grant the claimant priority rights to leases, special use permits, and easements on Federal land, which may include placement of land grant-merced infrastructure and community cemeteries;

grant the claimant priority rights to acquire Federal lands that may become available for disposal; and

grant the claimant priority rights to obtain new, unused, or unrenewed grazing allotments on Federal lands.

Protection of non-Federal property— The Commission may not make any recommendation that affects the ownership, title, or rights of owners of any non-Federal lands covered by the qualifying petition.