UNIVERSITY OF NEW MEXICO, ALBUQUERQUE, NEW MEXICO 87131
Working Paper #114
Fall 1987
THE UNITED STATES JUDICIAL SYSTEM
AND THE TREATY OF GUADALUPE HIDALGO
By
Richard Griswold del Castillo
San Diego State University
Southwest
Hispanic
Research
Institute
Working Paper #114
Fall 1987
THE UNITED STATES JUDICIAL SYSTEM
AND THE TREATY OF GUADALUPE HIDALGO
By
Richard Griswold del Castillo
San Diego State University
WORKING PAPER SERIES
Tomas Atencio and Rowena Rivera, Co-Editors
Southwest Hispanic Research Institute
University of New Mexico
Albuquerque, NM 87131
( 505)
277-296 5
Published and disseminated by the Southwest Hispanic
Research Institute as part of an ongoing project to
stimulate research focused on Southwest Hispanic Studies.
Copies of this working paper or any other titles in the
series may be ordered at cost by writing to the address
indicated above.
In 1848
the United States and Mexico
Treaty of Guadalupe Hidalgo ending
conflict that cost more
the United States
than 30,000
taking a
ratified
the Mexican War,
lives
and resulted
large portion of
territory.
The Treaty of
provisions,
particularly those dealing with the
the
inhabitants of
subjects of
the
Guadalupe
a
in
Mexican
Hidalgo's various
the ceded territory,
rights of
soon became
litigation within the United States courts.
When it was promulgated by President James Polk on July 4,
1848,
of a
the Treaty of Guadalupe Hidalgo achieved
law of
the United States.
two hundred federal,
state,
have
treaty.
interpreted this
number of
judicial
Since that
the
status
time more
than
and district court decisions
As a
result,
a
significant
interpretations have expanded and
changed the meaning of the original treaty.
American historians havel not yet analyzed
post-1848
legal
history of
the Treaty of
but have largely been concerned with
the
Guadalupe Hidalgo
studying how
it came
to be drafted.
The most thorough histories of the treaty • s
origins appear
in David Hunter Miller's Treaties and Other
International Acts of
the United States and David M.
Texas,
Pletcher's The Diplomacy of Annexation:
the Mexican War. 1
articles
view the
that have appeared on the
and
treaty,
the handful
have
treaty as an antiquarian artifact of
War,
not as a
Yet,
as
the
Both these works,
document
that has continuing
Professor Donald Cutter has
treaty has exerted an
Oregon and
tended
of
to
the Mexican
importance.
recently emphasized,
influence on a
wide
spectrum of
issues ranging from water disputes over the Rio Grande and
Colorado Rivers
rights.
to Mexican American and
Cutter considers
the
treaty as
unfinished business on the agenda
throughout the Southwest."
This essay analyzes
"a
of
Indian civil
major
cultural
i tern of
conflict
2
how
the United
states courts
interpreted the Treaty of Guadalupe Hidalgo since 1848.
To conduct a
systematic analysis of
court cases,
it
either liberal
Liberal
legal
is useful
or
power and
protecting
restrict
think of
tended
treaty and
document
Strict
rights.
them as
judgment
on my part
the
the
narrow
its
conferring and
These
time and
to determine
treaty.
to expand
tended
treaty and
human-rights document.
at
the
interpretations
the protection offered by the
not always apparent
reflecting
to go beyond
the original
3
large sample of
interpretations of
importance as a
its utility as a
were
strict
interpretations
language of
to
such a
have
it
them.
to
to
limit
two stances
required
some
Nevertheless,
the
conceptual scheme is a useful vehicle for conceptualizing a
wide variety of legal opinions.
There have been roughly
judicial
either
first
interpretation,
1 iberal
or
period dates
corresponding
from 1850
treaty)
landmark Botiller v.
period,
seven of
interpretations of
to
Dominguez
ten court
judgments
the Treaty of
2
the
(the year of
and ends
periods
of
the ascendancy of
strict construction of
ruling involving the
the
three historical
the
in 1889
case).
tended
Guadalupe
treaty.
first
The
court
(the year of
During
to be
this
liberal
Hidalgo.
The
second period began with the strict constructionalist
opinion
in the Dominguez case and lasted until
years of the New Deal,
forty years,
prevailed.
tended
conservative
Eighteen of
of
twenty five
since 19 3 0,
1 iberal
During this period of
interpretations of
to limit and constrict
The last period,
balance
in the 1930s.
the first
major
the
court
the meaning of
rulings
the
has genera ted a
and strict
treaty
relative
interpretations.
eighteen court decisions can be categorized as
treaty.
Ten of
1 iberal
and
eight as strict.
The periodization that emerges
the court cases
roughly parallels
the United States.
from
this analysis of
the political
history of
The Civil War and Reconstruction period
was one of great expansion in civil and political rights in
American jurisprudence with the ratification of
the 13th,
14th and 15th amendments,
defining
citizenship,
abolishing
and expanding
slavery,
the electoral
franchise.
The
period after Reconstruction until the early 1930s was,
with
the exception of a progressive reform movement in the first
two decades of
the
twentieth century,
conservative politics.
society caught up
in a
with the supremacy of
a f f i rm i ng
s e greg at ion
undercutting labor
Co.,
of
Juridical
the white race.
in pub 1 i c
unions~
conservative
has been reflected
settlements mirrored a
struggle for wealth and preoccupied
vitiating anti-trust
this
largely one of
fa c i 1 it i e s
~
and United States v.
legislation,
trend.
in a
Plessy v.
In
Ferguson,
re
Deb s ,
E.C. Knight
are major examples
The last period,
since 1930,
seesaw resurgence and decline of
3
liberal
and conservative political philosophies.
u.s.
period the
Supreme Court lost its liberal majority and
became more balanced politically.
has enjoyed a
In this
Neither political party
monopoly of both the legislature and
the
presidency.
The political
history of
influenced the juridical
Guadalupe
Hidalgo.
the United States has
interpretations of
01 iver Wendell
Holmes,
the Treaty of
in The Common
Law, stated it best:
The felt
moral
necessities of
and political
public policy,
the
time--the prevalent
theories,
intuitions of
avowed or unconscious,
even
prejudices which judges share with
their fellow
men--have had a
to do
syllogisms
in determining
should be governed.
The
cases
u.s.
than
the rules by which men
4
Supreme Court decided almost half
interpreting
political
good deal more
the
evolution of
Treaty of
Guadalupe Hidalgo.
the Court
justices regarded the treaty.
the major
The
influenced how
the
Prior to the Civil War,
the
Court has been concerned primarily with the nation-state
relationship and the preservation of the union.
tenure of
Chief Justice Taney,
avoid a
civil war over the
sectionalism.
reasoning as
in 1857,
the Court
issue of
During the
sought ways
slavery and
The sanctity of property was foremost
they rendered their famous
stating
4
in the
Dred Scott opinion
that Congress had no power
slaves as property from the territories.
to
to exclude
After the Civil War the Court turned
to the
relationship between government and private business and
manifest
a
tendency
to favor
decisions opposed governmental
restrain the
the latter.
attempts
excesses of capitalism.
interpretations of
might hinder
to
Not
the decades following Reconstruction,
Many Court
regulate or
surprisingly,
in
the Court opposed
the Treaty of Guadalupe Hidalgo that
the growth of
the American economy in the
Southwest.
Supreme Court historians date 1937
in that body 1 s
history.
as a
In that year
the
its opposition to government programs
private business.
Increasingly
adopted a more balanced opinion of
in the economy. 5
turning point
Court abandoned
that had challenged
thereafter
the
the role of
After World War II
Court
government
the Court was more
inclined to concentrate on the relationship of
individual
to
the government,
the
and specifically on civil
rights.
The other half of
interpreted the
territorial,
and
the court cases
treaty were decided by district,
state Supreme Courts.
usually reflected the pressures of
local
concerns.
These
regional
Most came from courts
dealt with the issue of property rights,
out of
that have
judgments
interests and
in California and
a concern emerging
that state 1 s growing population pressures on natural
resources.
Court cases coming from Arizona and New Mexico
focused on Indian- and tribal-rights questions as well
as
challenges
in
to Hispano community grants.
5
Cases decided
Texas
reflected a
traditions
in
recognition of
that
the Mexican common-law
state but only those
that did not
conflict with Anglo Saxon rule.
1848-1889
In the first
period of
and state courts
the
treaty
issued judgments
1 iberally.
status of
the
sought
Article VIII
On the
to clarify
and
the
the
not clearly a
treaty and
that
to
confirming and
the meaning of
the
of Queretaro.
ruled
that
an
the
language
in
In 1850
the
inchoate
title
was protected by
its legitimacy could be affected or
the federal
far beyond
the
the
government.
This
implied guarantees
in the
Protocol
of Queretaro.
Even
lacking clear titles would be protected until
the grants could be examined by the American courts.
Sixteen years
California court
perfected
interpret
of property rights,
legal Mexican title)
stricken Article X and
landholders
document
Protocol
questioned only by
construction went
tended
federal
the court bolstered the
subject
California Supreme Court
(i.e.,
interpretation,
that
Generally
treaty as a
protecting rights.
courts
juridical
1 ate r,
in Minter n v •
further
expanded this concept
land grants.
grants that
Bower e t
This
had fulfilled
the
a1•,
to
interpretation was
terms of
6
the
include
that
land
the Mexican laws
were not liable to review by the courts and were protected
by the
perfect
treaty.
This meant that those
titles needed not
individuals who held
submit them before the California
Land Commission established in 1851 to validate titles.
Min tern v.
Bower et al.,
the court decided
6
11
In
that perfect
titles
to lands which existed at the date of
Guadalupe Hidalgo
California,
in Mexicans
the Treaty of
then established
in
were guaranteed and secured to such persons not
only by the law of nations, but also by the stipulations of
the treaty. 117
primacy of
Th i s
federal
legislation,
wh i c h
p o s i t i on ,
r ecogn i zed
the
treaty obligation over congressional
would guide California until
it was overturned
in the federal case of Botiller v. Dominguez in 1889.
Other court
Guadalupe
(1855)
findings
Hidalgo
the
also
interpreted
liberally.
Supreme
Court
the
Treaty of
In United States v.
ruled
that
the
Reading
treaty protected
the property rights of a Mexican citizens who had fought in
the United States army against Mexico at
the very time his
land grant was pending certification by
government.
The court
not
in a
result
forfeit
In
treaty's protection.
the court argued
Queretaro were
California
ruled
that
not
of
that
land
Palmer v.
the dates
Greeley
( 1866)
grants as well
treaty.
did
rights because of
the
United
States
in New Mexico and
titles might
have been made by
1846.
that
In
the
(1857),
that
the court held
Protocol
Townsend
et
of
al.
town or community
as private ones were protected by
the
8
In other rulings
legitimize
conquered
the
action
in
limiting and
legitimate
military
Mexican
given
Mexican officials after May 13,
v.
his
the
the
the court
transfer of
Southwest.
interpreted
Mexican common
In United States v.
Supreme Court affirmed
that
7
the
the
treaty
law
Moreno
to
to
the
(1863),
treaty protected land
grants
that were
legitimate under Mexican law;
Court ruled that treaty stipulations did not
powers of
local
officials,
making legitimate
of
advanced
and
in
the position
to
Philips v.
that
the
the
from
implementation
Mound
City
the court
treaty also protected
partitions and divisions of land made prior to July 4,
under Mexican laws.
rights of
interpreted
the
give
u.s.
treaty as confirming
Hispanicized Pueblo
citizenship.
the
treaty
for
the
concern
In 1870 the De la Guerra case in California
In New Mexico
Mexicans.
not
implications of
former Mexican citizens was also a
of the courts.
1848
9
In this period the
civil
the
invalidate the
acting under Mexican law,
land grants prior
American laws;
in 1884
The
the presence of
citizenship for
a
large
Indians complicated
territorial
government
Indians citizenship,
but
in
in
group of
the
New
1869
issue
Mexico
of
did
the New Mexico
Supreme Court ruled that by virtue of the treaty the Pueblo
Indians were citizens of
States.
the
the
In United States v.
treaty
extensively
reviewing Article 9,
territory and of
Lucero
to
the
support
Justice Watts,
the United
justices
analyzed
this view.
writing
for
After
the court,
stated:
This court,
under
Guadalupe Hidalgo,
assent
to
citizens of
law,
made
this
section of
does not consider it proper
the withdrawal
New Mexico
to
the Treaty of
from
of
the
eight
liberty and property,
and consign
8
thousand
operation of
secure and maintain
to
them
their
in
the
their
liberty
and property
to a
system of
.
f or wand er1ng savages.
laws and
trade made
10
The justices thus proposed that the Pueblo Indians were not
tribal
Indians
Department
subject
of
to laws administered by
Indian Affairs.
This
the
interpretation
regarding the treaty status of the Pueblo Indians was later
reaffirmed by the New Mexico Supreme Court
later reversed by the
Supreme Court in 1940. 11
u.s.
A more narrow view of
this period was
the
Court heard a
case
that
Texas
treaty to Texas.
involving a
sought remedy under
Saviego verdict
ruled
summarized Article VIII
territories did
treaty.
the
in the
In
1856
the
in
the
Supreme
The McKinney v.
treaty did not apply
writing
for
the
treaty and asked,
to
Court,
"To what
refer
to
in
We think it is clear that they did not refer
the acknowledged limits of
Texas.
that Texas had been recognized by
government as an
as a
that
treaty
the question of
the high contracting parties
to any portion of
Court argued
the
the
land-grant claim in Texas
Justice Campbell,
lands.
this article?
the meaning of
largely limited to
application of
in 1874 but
11
the
The
u.s.
independent country and had been annexed
Therefore,
state prior to the Mexicn War.
of Guadalupe applied only to those
the United States
in 1848.
territories annexed by
This
interpretation was
sustained by several subsequent decisions,
law today. 12
9
the Treaty
and it stands as
1889-1930
A liberal view of
the meaning of
the Treaty of
Hidalgo prevailed in the period prior to
judgment of Botiller v.
inaugurated a
Dominguez
in
extent to which the treaty was important
property of
the
the landmark
1889.
decidedly conservative attitude
Guadalupe
This
case
regarding
the
in protecting
the
former Mexican citizens.
The most
long-reaching impact of the Bot iller case was summarized in
the statement written by Justice Miller for the court:
If
the
statute
treaty was violated by this general
(the Land Law of
1851),
enacted for
the
purpose of ascertaining the validity of claims
derived from
matter of
the Mexican government,
international concern,
it was a
which the
states must determine by treaty or by
two
such other
means as enables one state to enforce upon
This court,
another the obligations of a
treaty.
in cases 1 ike
has no. power
the present,
to
set
itself up as the instumentality for enforcing the
provisions of
a
treaty with a
which the government of
foreign nation
the United States,
as a
13
.
sovere1gn
power, c h ooses t o d"1sregard •
In Botiller v.
Dominguez
the sovereign laws of
over international
contradiction of
the Supreme Court held
the United States
treaties.
III,
treaties the same status as
10
took precedence
This appeared to be in direct
the Constitution which
Section 2 and Article
that
Section 2,
(in Article VI,
Clause 1)
the Constitution.
gave
The Supreme
Court • s
decision,
some argued,
sanctioned the con£ iscation
of property and violated the due process provision of
Constitution.
14
Never the 1 e s s
the c a s e
important precedent guiding the court
the
b e c am e
in
an
its future
interpretation of
conflicts between treaty obligations and
domestic
This
laws.
judgment declared
that
the United
States courts had no responsibility to hear cases
violations of
the Treaty of Guadalupe Hidalgo.
involving
To resolve
conflicts arising over the treaty there was no recourse but
to international diplomatic negotiation.
Eventually the Botiller case would be cited as a basis
for denying
had legal
lands
title
but had not
Claims
as
right of
to
the California Missions
to their ancestral
filed
their
stipulated
the government
determining
all
the Court of
For
Land
the court
the
"reasonable means
for
law.
to provide
the validity of
who
lands under Mexican law
title before
in the 1851
Indians,
titles within the ceded
territory" superseded the inhabitant's treaty rights. 15
Just as
the Botiller decree became a
subsequent years,
the right of
treaty
title."
Congress and
these
protections of
the courts
in
to
implement
the
"to ascertain the legitimacy of
implementing laws
the
treaty,
ran counter
the congressional
to
the
laws would
This principle was affirmed in Calfornia
takes precedence.
Powderworks v.
Davis
et al.
and in Arisa v.
( 1897),
law
the Courts confirmed over and over again,
through laws
If
rule of
(1894),
Railroad (1899) • 16
11
in United States v.
Sandoval
New Mexico and Arizona
The courts also
interpreted the
treaty
so
that
it
would be more restrictive as to the land rights claimed by
former Mexican citizens and
lands.
not
those who had acquired
The Supreme Court determined that
increase
rights"
and
that
the
"no duty
their
treaty
"did
rests on this
government to recognize the validity of a grant to any area
of
greater extent
Mexico. "
17
This
than was recognized by the government of
in itself might have been a
reasonable
assertion but it hinged on the government view of the scope
of
legitimate Mexican laws,
and increasingly
the courts
took a narrow view.
One question that arose was whether or not Mexican
land-holders would be protected from
squatters and
speculators during
u.s.
determine
the
time
the validity of
in Lockhart v.
Johnson,
it
took
the
their Mexican
courts
In 1901,
titles.
the Supreme Court
ruled
neither Articles VIII or IX gave such protection.
case a
portion of
the
Canada de Cochiti
Mexico had been purchased from
mining company while
original
grant
in New
government by a
An American who
argued
that
that
In this
the grant was pending action by
Surveyor General's office.
the
land-grant
the U.S.
to
the
had purchased
the mining company's
occupancy had violated the Treaty of Guadalupe Hidalgo.
Justice Peckham for the Supreme Court:
There are no words
in the
expressly withdrawing from
claimed limits of
treaty with Mexico
sale all
a Mexican grant,
12
lands within
and we do not
think
there
is any
language
in
the
treaty which
implies a reservation of any kind.n 18
This
19 01 doctrine,
land claims
that
from public
the
treaty did not
sale,
differed
long-standing policy of
the Land Department,
interpreted
to mean
within
the
treaty
reservation for
claimed under said grant."
ruled
that
protection for
California
which had
grantees
the
the ascertainment
19
In California
treaty would not
State Supreme Court argued
in
requires
only
their property
t.hat
shall
citizens of the United States. 11
treaty did not bind
Spanish or Mexican
Article X in
stricken out by
official
rights
In
11
1913
the
the Treaty of
equal
in 1930
special
of
to
Mexican
that
it ruled
to
that
follow
1 imitations with
the original
u.s.
regard
proclaimed as
the Mexican government
law
11
was
not
part
in 1848.
of
Mexico."
point of
to
territories had
the
Among other
All grants of land made by
shall
be
respected as valid,
to the same extent that the same grants would be valid,
said
the
treaty which had been
Senate,
things Article X had specified,
the
of
20
the
document
be
in a
the courts
rights
the government
statute of
land or water rights.
And
the
of
provide
that
the
land embraced
Mexicans who owned property.
Guadalupe Hidalgo
the
"all
from
the Mexican and Spanish grants were placed
state of
also
that
protect
remained within
the
if
limits of
The act of striking out this article emerged as a
law
for
the courts and became a
rejecting land claims.
13
basis
for
In Interstate Land Co.
u.s.
Supreme Court
invalid because
prior
to
it had been declared
the
that
removal
Polk's message
to be
Cessna v.
a
by
grant was
the
Senate,
to Congress,
the
recognized by
the
21
treaty"
Court
received
of
this
Hidalgo,
in 1898,
the Supreme
the absence of Article X to rule against
Land Claims.
Accordingly,
territory under
they
enforceable all
rejected
refused
to
"when
the Treaty of
recognize as
grants which had been assumed
government."
Thus
the commissioners,
valid and
to be made
Article X,
rejected by
as
this
22
the absence
guarantees of
provided a
was
the U.S.
Guadalupe
still
prior to thereto by the Mexican authorities.
proposed by
{more
In another
New Mexican land claimant whose grant had been
the
Court
the class which was
United States et al.
Court interpreted
the
Mexican law
of Article X by
accurately by the absence of Article X).
case,
{1891)
circumstanc~s
the
"this claim was one of
expressly refused
Co.
so by a
After analyzing
including President
stated
Maxwell Land
rejected the assertion that a
1848.
surrounding
v.
of
due process after
basis
for
the courts
meaning of the treaty.
been drafted
Article X,
with
its
specific
1848 under Mexican laws
to
restrict
further
the
The Protocol of Queretaro which had
to assure
the Mexican government
spirit of Article X would be retained was
not
a
that
the
matter of
juridical consideration.
The
treaty
final
in
area
of
conservative
the period 1889-1930 was
14
interpretation of
in
the
Indian affairs.
Three
cases
illustrate
Court construed the
government and
Mexican and
of
the
trend.
treaty
In
in a
way
to undercut historic
Indian communities
agreement
ruled
of
that
the
the
public domain,
concessions as well
rights
their use of
the basis
as
for
the
The pueblo
in northern
land with
The Court,
for
revoking
to
the
these prior
denying any claims of
ownership on the part of the Indians.
the
however,
by ceding Mexican lands
provided
Supreme
to benefit
in New Mexico.
Mexican settlers.
treaty,
the
understandings between
Zia claimed proprietary and grazing
New Mexico by virtue of
1897
land
The Court also moved
to question any extention of citizenship
rights
Indians.
the New Mexican
territorial
u.s.
citizenship
court
In
an
had ruled
1869
that
on Pueblo Indians.
that
judgment
the
treaty confirmed
In a 1913 case the Supreme Court stated
"it remains an open question whether
u.s."
citizens of the
because citizenship
Also,
is not
exercise by Congress of
23
Th e
next
yea r
they have become
"We need not determine it now,
in itself
its power
benefit and protection of
peoples • "
tribal
t he
an obstacle to
to enact
laws
for
Co u r t
r u1ed
t ha t
Indians had not been given citizenship by
Treaty
Guadalupe
the argument
that
Hidalgo.
the
the
the
the
Chief Justice White attacked
California
citizenship by virtue of
the
Indians as dependent
California
of
to
Indians were
the treaty as
entitled to
"so devoid of merit
as not in any real sense to involve the construction of the
treaty."
It
remained
for
15
a
later court
to arrive at
similar conclusions
regarding
the
status of
the
Pueblo
.
. New Mex1co.
.
24
I n d 1ans
1n
Although the bulk of Court constructions of the treaty
in the period 1880-1930 were based on a
reading of
the document,
the courts
expanded
indications by
Saviego,
that
there were a
its meaning.
the U.s.
the
few cases
in which
Despite
earlier
in McKinney v.
Supreme Court,
treaty would not apply
Texas Supreme Court made a
conservative
to Texas,
the
series of rulings that validated
the treaty as applying to certain regions of the state.
Texas Mexican Rail
Road v.
Locke,
the Texas
In
Supreme Court
ruled that Mexicans holding valid titles on March 2,
1836,
and continuing
11
protected
to hold
them until
in them by Article
Hidalgo ...
In a
treaty had
the
8 of
1914 verdict
11
force
of
25
asserted
into
In the s e
the
right
its local
refused
to
do
laws
the
the Treaty of
in Texas,
law
dec i s ions
of
1948,
were
Guadalupe
the same ,court ruled that the
principle was affirmed by at
rul ing s.
July 4,
even while
so with respect
for
this difference of
Texas
the
treaty was being
to
u.s.
the
this
Supreme
incorporate
the
to
and
national
the
treaty
Supreme Court
to preserve
of property owners who had purchased
Co u r t
the
law.
interpretation was
invoked
same
two other Texas
the T ex a s
state
basis
least
11
One
that
in
the
rights
lands of
former
Mexican holders.
In a
similar vein
struggle between the
the
treaty became a
state and
the use of the Rio Grande.
the
federal
weapon
in a
government
over
In 1897 commercial interests in
16
New Mexico
sought
divert water
government
other
to construct a
for
sued
things,
irrigation projects.
the private company,
navigation of
and common
both countries7
in part,
the
Supreme Court did
appropriation of
Mexico,
to
and neither
addressing
breach of
shall,
without
the exercise of
international
find
that
n
26
right of
the water and was
international
using
the
u.s.
A subsequent
agreement with Mexico
government
to
injury and wrong
to
the people
found
of
duty
The U. S.
result was
in favor
the
the proposed dam and
treaty obligations or of
the
While
right."
the Rio Grande constitute a
The
federal
"the
question directly,
"if
their position.
halted.
that
the
the consent of
this
they also constitute an equal
to
of
the Bravo Rio Grande
the waters of
lobbying for
region
among
the vessels and citizens of
the people of the United States.
was
federal
that,
stated
to
construct any work that may impede or interrupt,
in whole or
not
The
charging
which had
the Gila and of
free
the other,
Cruces
the dam would violate Article VII
Treaty of Guadalupe Hidalgo,
shall be
dam near Las
the
of
through an
itself
that
the
in 1902,
El
Supreme
Paso
Court
the project was
after
international
undertook
constructing the Elephant Butte Dam.
the
treaty of buttress
government and
lawsuit,
g over nm en t
securing an
treaty,
the
the project,
27
1930 to the Present
The Great Depression which began
beginning of
a
liberal
political
17
in
response
1929,
that
marked
the
lasted well
into
the
1960s.
Conservative react ion
economic policies of
1950s,
1970s,
surrounding
and
the
social
and
the Democrats occurred during
the
1980s.
Thus
juridicial
became more polarized.
interpretations
became a
interest
tool
for
advancing
treaty with mixed
bolster
injustices.
environment
nor
to
the
treaty
used
the
their powers.
the
Americans,
and Vietnam War eras,
liberal
agencies
interpret
Native
treaty
interests of various
to enlarge
sought
the
Increasingly
governmental
their positions.
the New Deal
strict
the
success
interests
political
Neither
Various
the
interpretation of
predominated.
groups.
Corporate
the
to
treaty
to
mobilized by
sought redress for past
Mexican Americans began to use the treaty as a
weapon to reclaim lands and right lost to the Anglos.
The
federal
treaty became part of
government and
the
struggle between
As
the western states.
early
the
as
1932 the states of the Colorado River basin had agreed to a
division of
the waters of
that
great
river,
and
in
the
early 1930s the federal
government neared completion of the
Hoover Dam project.
In 1931
successfully asserted
sections of
citing
the
of
the
the
rights of
provided
legal
basis
projects on the river.
government
nonnavigable
in United States v.
Guadalupe Hidalgo as
claim against
the
federal
its control
Colorado River
the Treaty of
the
the
for
Similarly,
a
basis
states.
The
federal
control
Utah,
for
its
treaty
of
dam
in this same period,
the
federal government used the treaty to justify its rights to
the California tidelands.
28
In the 1960s
18
the
federal
government
Florida,
beyond
sued
the gulf
and Texas
the
in an attemt
three miles off
Article V of
the
The
to
successfully retain control
shore.
The
Mexico boundary would begin
state
"three
Using this
government
since 1936,
Court
found
in favor
other
states citing
In
Since a
asserted a
Circuit Court of
Corporate
~sing
in
the
the
v.
for New Mexico
treaty
trustees of
taxes.
protection of
title
Chadwick
to
to
their
Campbell
gave
a
lengthy
leases.
successfully
the Sebilleta de la Joya
that
Mexican land-grants.
19
the
corporate
and gas
investors,
the lands
argued
the
Hidalgo as a
who controlled 215,000 acres in Socorro County.
trustees had lost
of
three-league
in deciding a
representing one group of
sued Chadwick and the
grant,
six mile
the Mexican
treaty
struggle over land containing valuable oil
Campbell,
league was
interests also
in Chadwick et al.
Appeals
interpretation of
land
Consequently the Supreme
the Treaty of Guadalupe
success
1940
from
of Texas and Florida but against
29
.
b as1s
.
f or 1ts
.
d ec1s1on.
. .
maJOr
benefit.
cited
the Texas
both states could claim a
offshore limit on its gulf coast.
some
that
same wording in the treaty,
had,
have had
Texas
of
The Florida treaty
with Spain contained similar language.
limit.
of
leagues
the Rio Grande."
approximately two miles,
Texas and
settled their
treaty which stipulated
the mouth of
Alabama,
oil-rich lands
states of
treaties which had
international boundaries
opposite
to control
tree mile limit.
Florida cited the
lands
states of Louisiana,
following
the
The
The
nonpayment
treaty guaranteed
court
ruled
that
the
treaty did not
but
that
"under
rights of
exempt Mexican
the Treaty of
property within
landholders
Guadalupe
the
Corporation v.
California
(1984)
Hidalgo,
ceded
30
unaffected by the change in sovereignty"
an
domain.
to declare
The
treaty had been legitimately
the
California
right
of
Land
the corporation to
the
in
The court
justify
the public
that
the
the actions of
ruled
This,
of
had been the argument employed by the federal
to
of
that
the
lands derived from Congress's
interpretation of the treaty in law. 31
earlier periods
State
the court
implemented
Commission.
corporation
as part of
corporation persuaded
private
In Summa
investment
their lands
taxes
territory were
successfully challenged an attempt by
California
from
course,
government in
its appropriation of
the public
domain.
Native Americans
the
loss of
their
in
this period,
tribal
redress
for
lands and liberties used
the
treaty as one of many treaties
On
the whole
judicial
that courts might
their efforts were
decisions were against
seeking
The bulk
frustrated.
the
consider.
Indians'
rights
and
of
in
favor of a limited interpretation of the treaty.
In Tenorio v.
Court
Tenorio
echoed an earlier
(1940)
the
suggestion of
New Mexico
the
Supreme
federal
court
that the Treaty of Guadalupe Hidalgo did not embrace Pueblo
Indians.
This
court position
treaty
also
to
the
ruled
judgment
in
reversed
the Lucero case,
Pueblo peoples.
that
an
the
earlier
territorial
which had applied
In 1945
the
Supreme
treaty could not be used
20
the
Court
to give
support
to
the
land claims of
Shoshonean Indians,
whom had lived within the Mexican Cession
and California.
claims,
basis
in Utah,
a
fiduciary duty
River Tribe et al.
this California
true value of
agreement
Nevada,
The courts also rejected California Indian
refusing to agree that the treaty was a
for
many of
v.
tribe
lands
towards
these people.
United States
(1973)
sued the government
that had been settled
in 1964.
substantive
The court rejected
In Pitt
two members of
to recover
in a
the
financial
their appeal which
had been based largely on the treaty. 32
Two of
Treaty of
the most
significant
interpretations of
the
Guadalupe Hidalgo as affecting American Indians
were made in April and May of 19867 they represented both a
victory and a defeat for Indian rights.
On January 4,
the
19 85,
an officer of
Interior charged Jose Abeyta,
an
the Department of
Isleta
Pueblo
Indian,
with violating the Bald Eagle Protection Act because he had
killed one of
these birds to use its feathers
ceremonies.
Abeyta
in religious
defended himself before
the
u.s.
District Court in New Mexico by asserting that Indians were
protected in the exercise of their religion by Article 9 of
the Treaty of Guadalupe Hidalgo which had promised that all
Mexican nationals would be "secured in the free exercise of
the religion without restriction."
this
time,
reversed,
yet again,
The
the
District
1945
Court,
at
Tenorio ruling
that the Pueblo Indians were not protected by the Treaty of
Guadalupe Hidalgo.
Judge Burciaga ruled for the court:
21
Because
the Treaty of Guadalupe Hidalgo afforded
protections
to
the
Pueblos,
this dimension more than a
hostile nations:
treaty.
The court
it
however,
is
a
living
in
Indian
33
the charges against Abeyta
based entirely upon the protections of
religious
in the First Amendment and
This was a
Guadalupe Hidalgo.
for
is
settlement between two
then moved to dismiss
contained
it
the first
time,
the Treaty of
significant finding
the language of
the
1 iberty
treaty
in that,
itself was
the primary basis for a legal decision.
One month later,
on May 5,
19 86,
the U.S.
Court of
Appeals
in California decided another case involving Indian
rights,
especifically the claim of
Chumash tribe of
Rosa
islands.
occupied the
the Santa Barbara,
the members of
Santa
The Chumash peoples claimed
islands
since
"time
Treaty of Guadalupe Hidalgo,
by failing
legal possession.
assume
The court,
this argument:
the
factual
assume the truth of
if
title of
that
the
left the tribe in
footnote,
to be
The
true,
Indians
the treaty did apply to them,
the Chumash Indians
to
the
recognized by Article VIII and IX of
Guadalupe Hidalgo."
had
to mention the
the legal conclusions cast
34
and
they
issued
its
"While the court generally must
allegations
of factual allegations.n
that
in a
and Santa
that
immemorial..
islands as part of the ceded territories,
opinion of
Cruz,
the
i t need not
in the form
further
argued
then "the aboriginal
islands
came
to be
the 1848 Treaty of
The court responded that this argument
22
was
"novel and creative but does not appear to have any
merit.
In rejecting the tribal claims,
11
maintained
(1}
Judge Fletcher
that Indian title to land "derives from
their presence on land before the arrival of white
settlers:
and
(2}
that the treaty did not convert Indians
claims into recognized titles,
Land Claims could do this,
because only the Court of
and the Chumash had failed to
present their claim within the stipulated time limits.
Since the 1930s the treaty has been an instrument most
widely used by non-Mexican origin plaintiffs seeking a
variety of remedies.
Only a few court cases have been
initiated by those whom the treaty was intended to
protect.
In this period,
six court cases citing the treaty
directly impinged on the fate of the Mexican-American
population.
In the 1940s the state of Texas and the Balli
family engaged in a series of legal battles over ownership
of Padre Island.
Alberto Balli had
inherited what he
thought was a legal Mexican land-grant from his family.
1943
In
the state of Texas sued them to recover the land
grant,
arguing that it had not fulfilled
requirements of Mexican statutes.
the technical
The District Court
Texas found that the Balli family had met most of
requirements of
protected under
in
the
the law and that their rights were
the Treaty of Guadalupe Hidalgo.
In a
series of rulings,
the court resoundingly supported Balli
against the state.
The Texas Supreme Court later affirmed
this verdict on appeal.
victory for Tejanos,
This was a major land-grant
and it was based squarely on an
23
interpretation of
that,
the
treaty.
It also was
interpret
later
citizens of
Mexico,
Company
judge,
the courts
faced
in the opposite direction,
family of its land.
under
to
the
land-grant cases
35
A few years
but ruled
exempting
it was still possible
the document as applying
in that state.
Gas
indication
notwithstanding previous court decisions
Texas from application of the treaty,
to
an
issue again
to divest a
all
sued the Texas-based Stanolind Oil
and
of Guadalupe Hidalgo.
in his ruling,
taken
illegally
The Circuit
cited Article VIII
of
treaty,
title of
Mexican
the
citizens to be
Judge Waller:
inviolably respected...
Court
the
specifically that portion requiring
11
Mexican
In 1946 Amos Amaya and his family,
to recover lands allegedly
Treaty
this
We regard the phrase as a covenant on the part of
the United States to respect from thenceforth any
title
that Mexicans had,
acquire,
that
to property with
or might
the
thereafter
region,
but
not
it would guarantee that those Mexicans would
never
lose
title
under
execution,
to persons by forclosure,
trespass,
and other non-government acts.
sales
adverse possession,
36
The Amaya family having failed to follow the timetable
for land recovery under Texas statutes,
the judge sustained
the lower court's ruling against recovery of
As he put it,
Appellants
their lands.
"The provisions of the treaty do not save the
from
the fatal
effect of
24
the passage of
time
under
the
statutes of
limitations
in the State of
Texas.n 37
The
issue of
reemerged
the property rights of Mexican citizens
in 1954 during
a
nationwide
campaign to deport or repatriate Mexican
immigrants.
Robert Galvan,
communist,
u.s.
a legal Mexican immigrant accused of being a
was brought for deportation hearings before the
District Court
filed
the height of
for
a
in Southern California.
He,
writ of habeas corpus arguing
in
turn,
that his
deportation would violate the Treaty of Guadalupe Hidalgo's
provision that protected the property of
The court responded that while
"juridical obeisance"
the
Mexican citizens.
treaty was entitled to
it did not specify that Mexicans were
entitled to remain
in the
u.s.
to manage
their
property. 38
Another Mexican American land rights
the court
in a
series of cases
and the Al ianza Federal
issue came before
launched by Reies Tijerina
de Mercedes Libres
in New Mexico.
In the 1960s a group of Hispano land-grant claimants led by
the charismatic Reies Lopez Tijerina sought to regain their
lost community grants.
battles,
the organization sponsored a
and rallies
that
confrontations,
shootings,
Alianza.
fresh,
a
In
their
court
series of meetings
eventually erupted
in violent
take over of Tierra Amarilla court house,
and a
state-wide manhunt for
1969,
Tijerina
public
Concurrent with
with
the leaders of
the land-grant
struggle still
launched another campaign to change
school
the
the
system in New Mexico by forcing
25
reapportiorunent
on local
school boards of
requiring
the
English.
As in the land-grant wars Tijerina relied heavily
on the
legal
Hidalgo.
11
teaching of all
and moral
In a
Indio-Hispano 11
subjects
education and by
force
of
the Treaty of
class action law
poor people of
the State Board of
its findings,
that Tijerina had misinterpreted the
suit
of
the
Tijerina
sued
On December
suit for a variety of causes including
Tijerina had based his
Guadalupe
suit on behalf
New Mexico,
Education.
District Court handed down
in both Spanish and
4,
1969
the
dismissing
the
the court's opinion
scope of
for bilingual
the
treaty.
education on
Article VIII and IX of the treaty but the court found that
11
The Treaty does not contemplate
administration of
of
public
the opinion that
right
to have
39
In addition we are not
schools.
treaty confers any proprietary
in the public
schools at public
Of Tijerina's contention that
poor people were being violated,
an unsound position as
that
the court
Tijerina appealed
ruled
11
This
is
to do with
11
the District Court's
Supreme Court and on May 25,
the rights of
treaty has nothing
any rights that 'poor' people may have.
the appeal.
the
the Spanish language and culture preserved
and continued
expenses. 11
the
in any way
ruling
to
the
1970 that court also dismissed
Justice Douglas wrote
a
dissenting
opinion
arguing that while the treaty was not a sound basis for the
case,
it could be argued on civil rights under the 14th and
15th amendments.
40
26
Another land rights case appeared
in 1984 when the
Texas Mexican property holders who were members of
the
Asociacion de Reclamantes brought a case before the federal
courts.
41
They sought reimbursement
had been taken from
them
to counterbalancing
for
in violation of
that
the treaty.
Due
claims,
the Mexican
government had become liable to compensate
the heirs of
Tejano landholders for
international
the lands
In the 1984 case
their losses.
Asociacion members outlined the damages
however,
u.s.
The
the Mexican government.
declined to hear
Court
recognizing
however,
that
was
the
This
of
the
statement of
from
Appeals,
that
the
u.s.
the
Of
judge
the Tejano landholders had rights which
"were explicitly protected by
Hidalgo."
sought
the case on the basis
violation had not occurred within
significance,
they
the
suggested a
the Treaty of
reversal
of
Guadalupe
the McKinney v.
Saviego 1856 opinion by which the treaty was interpreted to
exclude application to Texas.
of
the
1941
In fact
treaty with Mexico
the
settling
u.s.
acceptance
the outstanding
claims against Mexico appeared to be an admission of
validity of
point,
the Tejano land claims under the treaty.
however,
has not been explicitly tested
the
This
in the
courts.
Conclusion
It
is
indeed difficult to characterize in a
the direction the American legal
interpreting
system has
few words
taken
the Treaty of Guadalupe Hidalgo during
27
in
the
past 138 years.
The courts have
changed
several times on a number of issues,
the applicability of
Indians.
About
interpretation of
or
the
half
most notably regarding
treaty of Texas and the
of
the cases with a
In these court cases,
outnumbered victories by about two to one.
important
particularly
Pueblo
major
the treaty have involved Mexican American
Indian litigants.
been more
their opinions
The treaty has
in legitimizing the
in justifying federal,
defeats
status quo,
state and corporate
ownership of former Spanish and Mexican land-grants.
three
fourths
of
about
land ownership rights and only a
the cases decided since 1848 have been
were about civil rights under the treaty.
have been about equal
There were
significant
the distribution of kinds
California 60
sort and the
percent of
of
and
strict court
and frequency:
cases could be characterized as being
liberal.
small percentage
42
Over the entire time period liberal
interpretations
About
strict and 33
regional
differences
interpretations.
the verdicts were of
same percentage held for
Texas.
31
as
in
In
the liberal
In
the
New
Mexican courts the percentage of liberal decisions was only
40 percent.
half of all
of
The Supreme Court of
the cases
these rulings
treaty.
the U.S.
sampled and a
reflected a
strict
decided about
little more than half
interpretation of
Litigants were more likely to encounter a
the
liberal
interpretation in the state supreme courts.
Contrary to what might be
supposed the Treaty of
Guadalupe Hidalgo has remained a
28
viable part of
our
country's
system of
laws as
it has been
interpreted again
and again by the federal and state courts.
It has not been
a document whose primary importance has been to protect and
enlarge
the civil
Americans.
purposes.
treaty,
The
treaty in American courts has
The
from
apparently
the point
provided additional
1970s
that
and property rights
sought
of
served other
unfulfilled promise
of view of
Mexican
of
the
Mexican Americans
impetus for a political movement in the
to achieve a
justice
American political system had denied.
29
that
they
felt
the
FOOTNOTES
1.
David Hunter Miller, Treaties and Other International
Acts of the United States, 5 vols. (Washington D.C.:
Government Printing Office, 1937), vol. 5 "Mexico:
1848."
David M. Pletcher, The Diplomacy of
Annexation: Texas, Oregon and the Mexican War
(Colombia, Missouri: University of Missouri Press,
197 3) •
2.
Donald Cutter, 11 The Legacy of the Treaty of Guadalupe
Hidalgo," New Mexico Historical Review, 53, no. 4
(October 197 8) •
3.
The procedure followed to analyze United States
court cases dealing with the Treaty of Gualalupe
Hidalgo was to utilize the on-line computerized
reference system called Lexis-Nexis.
This system
enables a user to access all court cases mentioning a
specific treaty or law and to generate paragraphs
where the treaty was referenced in the court ruling.
Shephard's Citations were also used to access
references to the treaty that did not appear in the
Lexis-Nexis system.
In this way more than 200 court
cases were singled out along with some detail on the
interpretation given by the court of the treaty.
The focus of my study was how the court
interpreted the treaty, not how defendants and
plaintiffs argued using t~treaty.
Only direct
references to the treaty were the subject of this
study, not the hundreds of cases flowing from land
grant l i t i g a t i o n where the treaty was not a
substantive concern.
Of the 200 cases sampled, only
64 were found to be substantial interpretations of the
treaty.
My judgment as to what constituted an
important interpretation depended both on the length
to which the court went in discussing the treaty as
well as the importance ascribed to the treaty by the
court.
Most references to the treaty were minor ones
in passing, using it as a point of reference to make
some larger legal argument.
4.
01 iver Wendel Holmes Jr., The Common Law (Boston:
Little Brown and Co., 1881), p. 1.
"The law embodies
the story of a nation's development through many
centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of
mathematics." (p. 1).
5.
Robert McCloskey, The American Supreme Court (Chicago
and London: University of Chicago Press, 1960), pp.
103-105.
6.
Reynolds v. West 1 Cal. 322 (1850).
30
7.
Mintern v. Bowers et al.
24 Cal. 644 (1864) at 672.
8.
United States v. Reading 59 u.s. 1 (1855); Palmer v.
United States 65 u.s. 125 (1857); Townsend et al. v.
Greely 72 u.s. 326 (1866).
9.
United States v. Moreno 68 u.s. 400 (1863); City and
County of San Francisco v. Scott 111 U.S. 768 (1884);
Phillips v. Mound City 124 u.s. 605 (1888).
10.
United States v. Lucero 1 N.M. 422 (1869) at 441.
11 •
Tenorio v • Tenor i o 4 4 N • M. 8 9 ( 19 4 0 ) reversed the
Lucero decision and ruled that the treaty had not made
the Pueblo Indians citizens of the United States and
that they were not entitled to the protections of
Article VIII and IX.
12.
McKinney v. Saviego 59 u.s 365 (1856) at 263; This was
affirmed at the state level with The State of Texas v.
Gallardo 135 SW 644 (1911).
13.
Botiller v. Dominguez 130
14.
See John Currey, The Treaty of Guadalupe Hidalgo and
Private Land Claims and Titles Existing in California
at the Date of the Treaty (San Francisco: Bancroft
Whitney, 1891).
15.
Baker et al. v. Harvey 181 u.s. 481 (1901); United
States v. Title Insurance Co. et al. 265 u.s. 472
(1924).
16.
California Powderworks v. Davis 151 u.s. 389 (1894);
United States v. Sandoval et al. 167 U.S. 27 8 ( 1897) ;
Arisa v. New Mexico and Arizona Railroad 17 5 u.S. 7 6
(1899).
17.
United States v. Green et al. 185
18.
Lockhart v. Johnson 181
19.
Ibid. at 523.
20.
City of Los Angeles v. Venice Peninsula Properties et
al. 31 Cal. 3d 288 (1913); City of San Diego v.
Cuyamaca Water Co. 209 Cal. 105 (1930).
21.
Interstate Land Company v.
460 (1891) at 588.
22.
Cessna v.
186.
u.s.
u.s.
238 (1889).
256 (1901).
516 (1901) at 528.
Maxwell
United States et al.
31
u.s.
169
Land Co.
u.s.
165
80
u.s.
(1898)
at
23.
Pueblo of Zia v. United States et al. 168 u.s. 198
( 18 9 7 ) 1 United States v • Lucero 1 NM 4 2 2 ( 1 8 6 9 ) 7
United States v. Sandoval 231 u.s. 28 {1913) at 39,
48.
24.
Apapos et al. v. United States 233
Tenorio v. Tenorio 44 NM 89 {1940).
25.
McKinney v. Saviego 59 u.s. 365 {1856) 1 Texas Mexican
Rail Road v. Locke 7 4 Tex. 37 0 {1889) 1 State of Texas
v. Gallardo et al. 106 Tex. 274 {1914)7 State of Texas
v. Sais 47 Tex. 307 and Clark v. Hills 67 Tex. 141.
26.
United States v. Rio Grande Dam and
al. 175 u.s. 690 (1899), at 699, 700.
Irrigation Co.
et
27.
United States v. Rio Grande Dam and Irrigation Co.
al. 184 u.s. 416 {1901).
et
28 •
United States v • State of Utah 2 3 8 u • S • 6 4
United States v. O'Donnell 303 u.s. 501 {1938).
29.
United States v. States of Louisiana et al. 363 u.s. 1
(1960); For a discussion of the diplomacy surrounding
the negotiation of Mexico's off shore limit see 99
Cong. Rec. 3623-3624, June 3, 1936.
30.
Chadwick et al. v. Campbell 115 F. 2d 401 (1940).
31.
Summa Corporation v. State of Cal if ornia ex rel. State
Lands Commission et al. 104 s.ct. 1751 {1984), at
1754.
32.
Tenorio v. Tenorio 44 N.M 89 {1940) 1 Pitt River Tribe
et al. v. United States 485 F. 2d 660 (1973).
33.
United States v.
1301.
34.
United States ex rel. Chunie v.
{1986) •
35.
State of Texas v. Balli 173
3 6.
Amaya et al. v. Stanol ind Oil and Gas Co.
F. 2d 544 (1946).
37.
Ibid., at 337.
38.
Application of Robert Galvan for Writ of Habeus
127 F. Supp. 392 (1954).
39.
Lopez Tijerina v. Henry 48 F.R.D. 274 (1969).
Abeyta
32
632
F.
s.w.
u.s.
Supp.
587
1301
{1914)
{ 19 3 1 )
(1986) 1
Ringrose 788 F.
1
1
at
2d 638
2d 522 {1943).
et al.
158
Corpus
u.s.
40.
Tijerina et al. v. United States 398
922 (1970).
41.
A soc iac ion de Reclamantes et al. v. United Mexican
States 735 F. 2d 1517 (1984) 1 See Treaty of Final
Settlement of Certain Claims, United States and
Mexico, 56 Stat. 1347, T.S. No. 980 (Nov. 19, 1941).
42.
The following is a statistical breakdown of
salient characteristics of the cample cases:
LIBERAL OR STRICT INTERPRETATION OF THE TREATY
Liberal
Strict
N
%
33
31
52
48
GEOGRAPHIC DISTRIBUTION OF CASES
25
California
Arizona
New Mexico
Texas
Other
39
3
5
18
10
8
28
16
12
22
13
15
14
35
20
23
22
10
16
24
30
37
47
KINDS OF LITIGANTS
Hispanic
Indians
Corporation
Other
VERDICTS RENDERED
In favor of Hispanics
or Indians
Against Hispanics or
Indians
Not applicable
LEVEL OF COURT DECISION
u.s.
Supreme Court
State Supreme Courts
Other lower courts
36
18
10
56
28
16
VERDICT RENDERED BY LEVEL OF COURT
Pro Hispanic
U.S. Supreme Court
State Supreme Courts
Other lower courts
Contra Hispanic
N/R
1
15
20
6
3
3
6
9
1
33
the
INTERPRETATION BY LEVEL OF COURT
Strict
%
N
u.s.
Supreme Court
State Supreme Courts
Other lower courts
19
6
7
34
Liberal
N
%
53
33
17
12
33
14
4
12
54