THE DAWES ACT OF 1887, COURT OF PRIVATE LAND CLAIMS ACT OF 1891 AND THE GENERAL ACCOUNTING OFFICE (GAO'S) 2004
TREATY OF GUADALUPE HIDALGO REPORT ARE
MIRROR IMAGES OF THE GOVERNMENT'S NEGATIVE ATTITUDE TOWARD INDIAN, SPANISH AND
MEXICAN TREATIES AND PROPERTY RIGHT'S DURING THE LATE 1800's AND EARLY 1900's.
INTRODUCTION
The following is written in hopes that it might cause
further research into various ways to approach the necessity of undoing grave
injustices perpetrated upon the Indian, Spanish and Mexican people and the
unlawful taking of vast portions of their Reservations and Land Grants during
the late 1800’s and early 1900’s.
The information represents a comparative history of the
groups addressed and invites further research in seeking remedies to heal the
open veins of a century of intentional governmental maltreatment.
THE
HISTORY
It is not enough that historians research and document the
maltreatment of individual protected groups. They must also draw comparisons of
the maltreatment of different protected groups within the same time period if they
are to fully comprehend the consequence of such maltreatment.
It is the purpose of
this paper to draw a comparison not only of the difference in treatment of the
general population compared to the Native American; or the difference in the treatment
of the general population compared to the treatment of the Spanish, Mexican and
Pueblo Indian land grantees in the Southwest in the late eighteenth and early
nineteenth centuries—but to also draw a comparison of the difference in
treatment of these protected groups compared with each other. In other words,
in order to arrive at an accurate historical understanding of the prevalent
adverse treatment, it is essential that we draw comparisons between the manner
in which each of these groups were being maltreated during the same period of time.
While researching the disregard Congress had for Native
American, Spanish and Mexican citizens property rights between 1887 and the
present, two facts became abundantly clear, Congress had no moral compass—and
the executive and judicial branches were in lock-step with Congress.
The first congressional act I will address is the 1887
Dawes Act, the title and purpose of which began quite innocuously. The title simply
stated that the law was being enacted to:
…[P] rovide for the Allotment of
Lands in Severalty to Indians on the Various Reservations, and to
Extend the Protection of the Laws of the United
States and the Territories Over the Indians, and for Other Purposes.
It wasn't totally unreasonable
to conclude from those words that the true purpose of the act was to allot land
to Indians in severalty. However, in reading further, Congress’ use the of the term
"over the Indians” rather than "to the Indians,” and its addition of the
term "and for other purposes,” jumped off the page as they well should
have. The term "for other purposes," offers no hint of what Congress
was planning to accomplish. All that was clear was that its use was a clear
forewarning of an ominous result.
The true intent of the act did not surface until Section
Five: Congress’ true intent was to establish a process granting the president
the power to remove lands from reservations which had been created for the use
of the Indians by "treaty stipulation, by virtue of an act of Congress, or
by executive order." Regardless of whether the lands were agricultural; had
been sold with or without irrigation; or had been released to the United States
by an Indian tribe; it was the intent of Congress that the land removed from
the reservations should be:
…[H]eld by
the United States for the sole purpose of securing homes to actual setters…disposed of by the United States to
“actual and bona fide setters only”…
The Dawes Act made it clear that it was the intention of
Congress to abrogate the government’s treaty responsibilities to the tribes—to
remove as much land as possible from the Reservations.
Several additional references to
the Dawes Act that need to be compared with the terms of the Court of Private
Land Claims Act, bear mentioning. Among the problems created by the language in
the Dawes act was congress’s intention to distribute reservation land in a
manner that was in conflict with the laws regarding descent and distribution
which were in existence at the time.
The method Congress chose to
distribute the land to the Indians in severalty was to allot it as follows:
Each head of
a family would receive one-quarter of a section; [160 acres].
Each
single person over eighteen years of age would receive one-eighth of a section; [80 acres].
Each
orphan child under eighteen years of age would receive one-eighth of a section; [80 acres].
Each
other single person under eighteen years now living, or who may be born prior to the date of the order of the
President directing an allotment of
the lands embraced in any reservation would receive one sixteenth of a section: [40 acres].
Even though the planned
distribution was contrary in a number of respects to the laws of descent and
distribution of the various states and territories, the act:
Provided that
the law of descent and distribution in force in the State orTerritory where such lands are situate
shall apply thereto after patents therefore
have been executed and delivered.…
By drafting the act and allotting the land as it did,
Congress was denying married women a share of land. Of course, had married
women been allowed their rightful share of the land the result would have had
the effect of reducing the amount of land the government was attempting to take
from the reservations and give to the "actual and bona fide setters." An anomaly in the language was that once the Indians
had received their allotments, Congress required that:
Sec. 5. …
upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall
cause patents to issue therefore in the name
of the allottees … and declare that the United States … will hold the land thus allotted, for a period of
twenty-five years, in trust for the sole use and
benefit of the Indian to whom such allotment shall have been made …: Provided, that the President of the United
States may in any case in his discretion
extend the period.
Yet, in the case of the “actual
and bona fide settlers”, the holding period was different. It stated that:
…[A]fter
the expiration of five years occupancy thereof as a homestead; [patents could issue].
To establish further evidence of how hypocritical the Dawes
Act was, we need only to quote from a sentence from Section 6:
…[N]o Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal
protection of the law.
The language of the Dawes Act clearly established that
Congress was perfectly comfortable enacting legislation which not only abrogated
the government’s treaty responsibilities; it was perfectly comfortable in
ignoring the Indians rights to equal protection of the law.
Just five years after the passage of the Dawes Act it
became clear from a passage in Harrison's 1892 Farewell address how effective the
Dawes Act had been in separating the Indians from their land. He stated:
[T]he
enormous cessions of Indian lands which have been opened to settlement, aggregating during this
Administration [from 1889 through 1892]
nearly 26,000,000 acres, and the agreements renegotiated and now pending in Congress for ratification
by which about 10,000,000 additional acres
will be opened to settlement, it will be seen how much has been accomplished.
In the five years between
passage of the Dawes Act and Harrison's reelection loss, thirty-six million
acres of Indian lands, created for their use, had been taken from them by the
artifice of transferring their common lands to them individually.
Emily Greenwald, in her book, Reconfiguring the Reservation: The Nez Perces, Jicarilla Apaches, and
the Dawes Act, [UNM Press, 2002] at
chapter six, note 3, page 173 provides the following information regarding the
effect of the Dawes Act and its progeny, as follows:
3. Leonard
A. Carlson compiled the following figures:
Indian
acreage in 1881 155,632,312
Indian
acreage in 1933 52,651,393
Acres
lost 102,980,919
Acres
opened as surplus 22,594,658
Acreage
of allotments sold 3,752,923
Total
lost through the Dawes act 26,447,581
It was her conclusion that the Nez Perces lost 600,000
acres of their land directly but that the Jicarilla lost none of its land.
In 1891 Congress expanded its focus. It struck once again by
designing and passing laws which allowed the government to take land which had
belonged for decades to grantees and heirs of Spanish and Mexican land grants:
to once again take treaty protected land; land which had protected by the very
language of the 1848 Treaty of Guadalupe Hidalgo. Congress would this time
establish a Court of Private Land Claims and a Forest Reserve Act to relieve
the Spanish and Mexican settlers of millions of acres over the next fourteen
years.
One of Harrison's appointed justices, Wilbur F. Stone was even
willing in the closing paragraph of an article he had written and which was
presented to the 1904 annual meeting of the New Mexico Territorial Bar
Association, to state the real reason the Court had taken 30,000,000 acres from
the Spanish and Mexican land grants. And I quote:
… [T]he
reversion to the public domain of the general government of more than
30,000,000 acres of [Spanish and Mexican grant] land comes the [sic]like new cession of country to the
United States—a region illimitable in the
undeveloped wealth of its coal, metals,
agriculture and health—giving climate.
To further aggravate the discriminatory
turmoil caused by the Dawes, Court of Private Land Claims and Forest Reserve
Acts, the Government Accountability Office (GAO) began an investigation in 2000
of the "fairness" of the resolution of the Guadalupe Hidalgo Treaty
protected land grant claims and , after a four year
inquiry concluded that:
Not
withstanding the compliance of the two New Mexico confirmation procedures [the Surveyor General and Court of
Private Land Claims procedures] … the processes
were inefficient and created hardships for
the grantees.
The GAO forewarned of its conclusion when, early in its
report, it stated that whether racial prejudice had contributed to shortcomings
in the land grant adjudication process would not be addressed as it was
collateral to and beyond the scope of its report. As if that were not enough of
an insult to the land grant community, it stated (and restated on three
additional occasions) that:
…
[A]s agreed, GAO does not express an opinion on whether the United States fulfilled its
obligations under the Treaty as a matter of international
law.
The GAO, having made it clear that it was not going to
investigate whether racial prejudice existed in the adjudication process or
whether the United States had fulfilled its obligations under the treaty, was
left with nothing better to do than to detail a gopher to the local Home Depot
to purchase a gallon or two of whitewash.
Having touched upon Congress'
use of its limitless powers to ignore equal protection of the law, and it's
circumvention of treaty stipulations, we need next to direct attention to evidence existing at the time of the
government's attitude toward the Spanish and Mexican land grants and their
grantees. In the interest of reaching legitimate conclusions about what the
politicians were thinking at the time it is important to consider what they
were saying.
The Message To Congress (State of the Union Addresses) of the period provides
excellent clues into the thinking in Washington at the time. As an aside, addresses made before 1913 were referred
to as “messages to congress” and were presented in writing and therefore left
virtually no room for errors in interpretation or speculation.
Harrison's 1891 address contained a statement regarding the
passage of the Court of Private Land Claims Act and the appointment of the
justices to the court:
The
judges of the Court of Private Land Claims, provided for by the Act of March 3, 1891, have been appointed
and the court organized. It is now
possible to give early relief to communities long repressed in their development by unsettled land titles and to establish the
possession and right of settlers whose
lands have been rendered valueless by adverse and unfounded claims …
Harrison dared to say to all the
world, Spain and Mexico included, that with the organization of the court and
his appointment of the justices complete, it was finally going to be possibly
to “grant relief to those settlers who had been repressed in the development of
their communities by the unfounded claims and unsettled titles of the Spanish
and Mexican land grants.”
Harrison's statement above was not an isolated comment as
he mentioned land grants in all of his annual Messages to Congress as well. In
an address prior to the passage of the Court of Private Land Claims and Forest
Reserve Acts, he had previously stated:
…[T]he
subject of the unadjusted Spanish and Mexican land grants and the urgent necessity for providing
some commission or tribunal for the trial
of questions of title growing out of them were twice brought by me to the attention of Congress at the last
session. Bills have been reported from the
proper committees in both houses upon the subject, and I very earnestly hope that this Congress will put an end to
the delay which has attended the settlement
of the disputes as to the title between the settlers and the claimants under the grants. These
disputes retard the prosperity and disturb the
peace of large and important communities.
On another occasion, he stated:
Your
attention is called to the difficulty presented by the Secretary of the Interior as to the administration of
the law of March 3, 1891, establishing
a Court of Private Land Claims. The small holdings intended to be protected by the law are estimated to
be more than 15,000 in number. The claimants
are a most deserving class and their titles are supported by the strongest equities. The difficulty
grows out of the fact that the lands have largely
been surveyed according to our methods…while the holdings, many of which have been in the same family for
generations, are laid out in narrow strips
a few rods wide upon a stream and running back to the hills for pasturage and timber.…
In each of President Harrison’s messages upon the subject
he went out of his way to draw a distinction between the grantees of the land grants
on the one hand, "whose lands are laid out in narrow strips a few rods
wide", and the claimants, "who are a most deserving class" …
[and whose] "titles are supported by the strongest equities."
Interestingly, the Court of
Private Land Claims Act was devoid of language that even suggested that it had
been enacted to protect the claims of the grantees. His statements were clear
and unambiguous—the acts had been enacted “to resolve claims of claimants who
were a most deserving class” and whose “titles were supported by the strongest
equities.” As if mention of Harrison's
lack of concern for the grantees of the land grants and his concern for the “settlers”
in the Southwest was not enough, he also addressed the subject in a
communication directed specifically to members of Congress.
The
entire community (sic) where these large claims exist, and indeed all of our
people, are interested in an early and final settlement of them. No greater incubus can rest upon the energies
of a people in the development of a
new country than that resulting from unsettled land titles.
President Harrison was not alone in making such comments. His
Secretary of Interior, John Noble, was also speaking up. On April 26, 1891 he
was quoted in the New York Times as having said:
The last
Congress passed several measures which will affect the work of the Interior
Department considerably. The land laws were very materially altered.
And:
The act which creates the court to settle Mexican
land claims will take a great burden
off the Interior Department, which has done whatever has been done
in the way of adjusting these claims. The act, or something like it has long
been needed, and the work of settling these cases, which involve millions of acres may now be said to be
fairly begun.
On the occasion of being asked
who should replace him as Secretary of Interior upon Harrison’s having lost his
bid for reelection, Noble was quoted as having said:
Someone should be appointed who has no connection
whatever with land grants in the West,
unless the Administration wants to see this department
of the Government attacked very bitterly on all sides….
Moving on to President Theodore Roosevelt's administration,
we find his attitude toward the Spanish and Mexican land grants and their
grantees and heirs, was no different than those of President Harrison. The evidence
irrefutably establishes that Roosevelt, (with help from Chief Forester, Gifford
Pinchot), continued Harrison's scheme of removing as much land as possible from
the Spanish and Mexican grants.
On the very day Congress approved
the CPLC’s act it also enacted an omnibus bill which included a section
(mentioned above) that became known as the Forest Reserve Act. The significance
of Section 24 of the omnibus bill is that it was used by Roosevelt and Gifford
Pinchot, his national forest supervisor, to proclaim over 145 million acres of
land as forest reserves. Unfortunately, a significant and large portion of the
land taken for the forest reserves had previously belonged within Indian
reservations and the Spanish and Mexican land grants in the Southwest.
Section 24 read as follows:
That
the President of the United States may, from time to time, set apart and reserve, in any State
or Territory having public land bearing forests,
in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial
value or not, as public reservations; and
the President shall, by public proclamation, declare the establishment of such
reservations and the limits thereof.
During Roosevelt’s presidency,
he and Pinchot were prolific, to say the least, in their establishment of
forest reserves. That is, until they were caught red handed attempting to
establish a reserve in Washington State. In that instance they found themselves
in serious trouble with Congress and the local people who had realized that
thousands of acres of their state had been proclaimed a forest reserve.
The following is an explanation of what occurred once
Roosevelt's proclamation was discovered. It is found in an article titled: The Forest Service: Fighting for Public
Lands, (Understanding our Government), authored by Gerald W. Williams. The
article addresses the quandary in which Roosevelt and Pinchot found themselves:
In
January1907, there was considerable opposition to a Presidential proclamation that reserved thousands
of acres of prime Douglas-fir timberlands
in northern Washington State. The local press, chambers of commerce, and the Washington State
congres-sional delegation protested that the
reserve would cause undue hardship on residents by taking away homestead and "prime"
agricultural lands (the land, in fact, was not agricultural,
abut[sic] heavily forested) as well as impeding the future development of the State.
The article goes on to describe Roosevelt and Pinchot's
manner of attempting to resolve the matter:
After
considerable pressure, Roosevelt and Pinchot relented by, by[sic] saying that the reserve had
been a "clerical" error. Soon thereafter, Senator Charles W. Fulton
of Oregon, who had been implicated in the land frauds
in that State, introduced an amendment to the annual agricultural appropriations bill.
This
amendment, the Fulton Amendment, prohibited the President from creating
any additional forest reserves in the six western States of Washington Oregon, Idaho, Montana,
Wyoming and Colorado; took away presidential
power to proclaim reserves, established under the Forest Reserve (Creative) Act of 1891; and
gave Congress alone the authority to establish
reserves. However, before this bill was signed into law on March 4, 1907, Gifford Pinchot and the President
came up with a plan.
On the eve
of the bill's signing, Chief Forester Pinchot and his assistant Arthur C. Ringland used a heavy blue pencil to
draw many new forest reserves on maps. As soon as a map was
finished and a proclamation written,
the President signed the paper to establish another forest reserve. On March 1st and 2nd, Roosevelt established 17 new
or combined forest reserves containing
over 16 million acres in these six western states….
These have since been referred to as the "Midnight Reserves."
Counting additional reserves
that Roosevelt and Pinchot proclaimed in territories outside the six states, it
is believed that they had actually converted more than 30 million acres to
forest reserves in the two days the bill lay on Roosevelt's desk awaiting his
signature.
There could be no better support for the information
provided in the article just quoted than Roosevelt's own words from his 1913
autobiography as subsequently compiled and edited in 2005 from research done by
the National Geographic Society and Theodore Roosevelt Association staff:
While the
Agricultural Appropriation Bill was passing through the Senate, in 1907, Senator Fulton, of Oregon, secured an
amendment providing that the President
could not set aside any additional National Forests
in the six Northwestern States. This meant retaining some sixteen million of acres to be exploited by land grabbers and by the
representatives of the great special
interests, at the expense of the public interest.
But for four
years the Forest Service had been gathering field notes as to what forests ought to be set aside in
these States, and so was prepared to act.
It was equally undesirable to veto the whole agricultural bill, and to sign it with this amendment effective.
Accordingly, a plan to create the necessary National
Forest in these States before the Agricultural Bill could be passed and signed was laid before me by Mr.
Pinchot. I approved it. The necessary papers
were immediately prepared. I signed the last proclamation a couple of days
before by my signature, the bill became law; and when the friends of the special interests in the Senate got their
amendment through and woke up, they
discovered that sixteen million acres of timberland had been saved for the people by putting them in the National Forests
before the land grabbers could get
at them.
The
opponents of the Forest Service turned handsprings in their wrath; and dire were their threats against the
Executive; but the threats could not be carried
out, and were really only a tribute to the efficiency of our action.
According to a 2001 article by
Dennis Cowals, entitled: Theodore
Roosevelt and the Siuslaw National Forest:
The
forest reserves of the United States quadrupled to about 194,000,000 acres … [and was equal in
area to] all the states on the Atlantic coast
from Maine to Virginia and the states of Vermont, Pennsylvania, and West Virginia.
[Greater in] area than France, Belgium, and The Netherlands combined.
Furthermore:
Over
Roosevelt's articulate objections, "An Act making appropriations for the Department of Agriculture for the
fiscal year ending June thirtieth, nineteen
hundred and eight," H.R. 24815, Public Act No. 242, U.S. Congress, 59th. 2nd Session, was
passed on Feb. 25, 1907. Unwilling to pocket-veto
the entire appropriations act, Roosevelt permitted Gifford Pinchot and his staff to identify some
16,000,000 acres of forest in Oregon, Washington,
Idaho, Montana, Colorado and Wyoming which the President then designated as new national forest
lands by executive order, between Congress's
passage of the bill and its signing on Marth [sic] 4th by the reluctant President, who was now forbidden
to create or enlarge the newly designated
National Forests.
It is important at this juncture
to draw a comparison of two land grants in Northern New Mexico—to compare
Harrison's 1892 Proclamation setting aside the Pecos River Forest Reserve with
Roosevelt's 1905 Proclamation establishing the Jémez Forest Reserve.
One significant difference was
that Harrison's proclamation had been described by township and range while
Roosevelt's, Jemez Forest Reserve Proclamation had no description—simply a grid
map. Additionally, Harrison's proclamation had an important paragraph which was
missing from Roosevelt's. It read:
Excepting
from the force and effect of this proclamation all land which may have been prior to the date hereof embraced in
any valid Spanish or Mexican grant
or in any legal entry or covered by any lawful filing duly made in the proper United States land office....
Roosevelt's proclamation for the Jémez Forest Reserve
totally ignored the importance of protecting the interests of "all land[s]
which may have been prior to the date hereof embraced in any valid Spanish or
Mexican grants." He obviously did not wish to be bothered by the fact that
he was absconding with 800,000 acres of grant land—thus leaving the San Joaquín
del Río de Chama, Juan Bautista Valdez and La Petaca grants with less than
5,000 total combined acres.
On the other hand there was a striking similarity in both
proclamations. Both mentioned an identical reason for being established.
Harrison's proclamation for the Pecos River Forest Reserve read:
And
whereas the public lands in the Territory of New Mexico within the limits hereinafter described are in
part covered with timber, and it appears
that the public good would be promoted by setting apart and reserving said lands as a public
reservation.
While Roosevelt's Jémez Proclamation stated:
And whereas,
the public lands, in the Territory of New Mexico, which are hereinafter indicated, are in part covered with timber,
and it appears that the public good would
be promoted by setting apart said lands as a public reservation;…
Unfortunately, the negative
political climate against the Spanish and Mexican land grantees and their heirs
was not limited to presidents and secretaries of the Department of Interior.
Senator Albert J. Beveridge, chairman of the Senate Committee on Territories
and a close friend and confidant of President Roosevelt, was extremely
outspoken when describing the Spanish and Mexican settlers in New Mexico and
Arizona whose families had refused to leave after the U.S./Mexican War. His
statements on the floor of the Senate and elsewhere were highly inappropriate,
and included his apparent belief that the Spanish and Mexican citizen residents
of New Mexico and Arizona:
… [W]eren't equal in
intellect, resources, or population to the other states in the Union. Nor,
said he, were they sufficiently American in their habits and customs.
A trip Beveridge took to the southwest was described by
Howard Roberts Lamar in his 2000 book: The
Far Southwest, 1846-1912: a territorial history, as follows:
When in the early fall
of 1902, his [Senator Beverage's] committee took
up the question of admission, he and a subcommittee made a whirlwind tour of the three Western territories. From
the questions he asked it was clear that
he liked "American" Oklahoma, but that he was acutely hostile to the idea of statehood for "frontier"
Arizona and "Mexican" New Mexico.
[I]t appears that Beveridge's real reasons were
not economic or reformist but
cultural. He returned to Washington believing that the Spanish-speaking residents of the Southwest were
at best second-class citizens, passive,
pliant, and uneducated. Beveridge and his
supporters were to argue for the
next eight years that the Spanish-Americans were not at home with United States law, its court and school
systems, or even with the English language.
In an article in the New York Times of December 6, 1902, it
was stated that:
WASHINGTON, Dec. 5. Senator Beveridge is
preparing an exhaustive report
on the Statehood bill to present to the Senate before next Wednesday, when it will be taken up as
unfinished business and considered until
voted on unless Senator Quay is sidetracked by Senator Hale and the other
parliamentarians of the Senate who are opposed to admitting the three Territories of New Mexico, Arizona and
Oklahoma.
As to Arizona and New
Mexico, it will be urged by the committee who
visited the Territories that in parts of both the native American citizen sometimes feels that he is in a foreign
country. Spanish is spoken and in some places public business is conducted
in Spanish. The sub-committee that went
out there recently found Justices of the Peace that tried cases in court in Spanish and spoke no English.
Senator Beveridge's dislike for
the Spanish and Mexican settlers was so pronounced that he succeeded in
convincing Roosevelt to hold back New Mexico and Arizona's statehood for nearly
ten years. Likewise, the use of the term "native American" as used
above, is quite telling. The land grant settlers and their heirs had been
United States citizens since 1849—for over fifty years by the time the settlers
arriving from the east were being referred to by Beveridge and his cohorts as "native" Americans. One wonders how many generations an
ethnic group of citizens would have had to live in the United States before
Senator Beveridge and his colleagues in the Senate would have been willing to
recognize them as "native" Americans.
To show how close New Mexico and Arizona became to being granted statehood and
the extreme to which Senator Beveridge was willing to go to deny them statehood
once he realized that there was enough support in his committee to send the
bill to the full senate; and realized further that there was a sufficient
number of votes in the full senate to grant them statehood, we need return to
Lamar's, The Far Southwest:
[Senator] Beveridge
was not to be defeated. After mobilizing many other
senators and using filibustering techniques, he resorted to an unexpected device. For reasons of
courtesy no vote could take place without his
presence as chairman of the Territorial Committee. At the crucial moment
he hid on the third floor of Gifford Pinchot's home for a week and the time passed when a territorial bill could
be considered in 1903.
Having discussed the 1887 Dawes Act and the 1891 Court of
Private Land Claims and Forest Reserve Acts, it is time to turn our attention
to the GAO's 2004 Report (GAO-04-59) which was titled: Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding
Community Land Grant Claims in New Mexico, in order to draw a comparison of
the government's treatment of the Indians and their reservations vis-à-vis the
land grant settlers who had been living on their land for generations. In doing
so, I am in no way suggesting that either group received preferential treatment
over the other—only raising the issue to show that in each case Congress was
intentionally discriminating against the group being addressed.
In the case of the Court of
Private Land Claims Act, the settlers were not allotted land their ancestors
had settled upon decades earlier. In fact, before Roosevelt proclaimed the
Jémez Forest Reserve, the government had physically removed all evidence of the
existence of the San Joaquín del Río de Chama, Juan Bautista Valdez and La
Petaca Grants from a number of its official maps.
One of the more interesting, yet
alarming, facts about the GAO Report was the extent to which the GAO was
willing to go to conceal Congress' specific demand that the Court of Private Land
Claims protect the property rights of three specific groups of individuals.
Section 12 of the GAO's Appendix VII, which was titled:
Excerpts from the 1891 Act Establishing the Court of Private Land Claims, and
which appears at page 186 of its report, read as follows:
Sec. 12. That all
claims mentioned in section six of this act which are by the provisions of this act authorized to be prosecuted shall,
at the end of two years from the
taking effect of this act, if no petition in respect to the same shall have then been filed as
herein before provided, be deemed and taken,
in all courts and elsewhere, to be abandoned and shall be forever barred…. [Note the GAO’s use of a four
dot ellipse]
Section 12 of the original act did not end with the words
"and shall be forever barred," as implied by the GAO's use of a four
dot ellipse. The paragraph, as enacted, read in pertinent part as follows:
Sec. 12. That all
claims mentioned in section six of this act which are by the provisions of this act authorized to be prosecuted shall,
at the end of two years from the
taking effect of this act, if no petition in respect to the same shall have then been filed as
herein before provided, be deemed and taken,
in all courts and elsewhere, to be abandoned and shall be forever barred and shall be forever barred: Provided, that in any case where it shall come
to the knowledge of the court that minors, married women, or persons non compos mentis are interested in any
land claim or matter brought before the
court it shall be its duty to appoint a guardian ad litem for such persons under disability and require a petition to
be filed in their behalf, as in other cases,
and if necessary to appoint counsel for the protection of their rights….
The portion of the sentence which the GAO very conveniently
left out, turned out to be one of the most important, most significant,
provisions of the law as it clearly directed the Court, at least so far as
children, married women and persons non compos mentis were concerned, to
protect their property rights, even to the extent of directing the appointment
of guardians for them.
The question that begs consideration is: why would—why did—the
GAO ignore the statutory demand, skirt the failure of the CPLC to comply with
the significant statutory requirement that it protect the property
interests of minor children, married women and persons non compos mentis . Was
it because, as I believe, the GAO upon arriving at the realization that the Court
had intentionally ignored the statutory requirement that it protect the rights
of the minors, married women and persons non compos mentis intentionally attempted
to cover-up the court’s refusal to comply with the language of the statute by replacing
the colon in the act with a four dot ellipse to provide cover for the Court’s
having ignored its mandate.
What the GAO did was not an accident or oversight—it was an
intentional alteration of the language of an Act of Congress.
Unfortunately, Sec. 12 was not
the only section of the Court of Private Land Claims Act that the GAO ignored.
The following is another example of the CPLC’s having failed to abide by the
clear language of the statute:
Section 8….It shall be
lawful for and the duty of the head of the
Department of Justice, whenever
in his opinion the public interest or the rights
of any claimant shall require it, to cause the attorney of the United States in said court to file in said
court a petition against the holder or possessor
of any claim or land in any of the States or Territories mentioned in this act who shall not have voluntarily
come in under the provisions of this
act, stating in substance that the title of such holder or possessor is open to
question, or stating in substance that the boundaries of any such land, the claimant or possessor to or of which has
not brought the matter into court, are
open to question, and praying that the title to any such land, or the boundaries thereof, if the title be admitted
be settled and adjudicated; and thereupon
the court shall, on such notice to such claimant or possessor as it shall deem reasonable, proceed to hear,
try, and determine the questions stated
in such petition or arising in the matter, and determine the matter according to law, justice, and
the provisions of this act, but subject to all lawful
rights adverse to such claimant or possessor, as between such claimant and possessor and any other
claimant or possessor, and subject in this
respect to all the provisions of this section applicable thereto.
Congress was demanding that the United States Department of
Justice, the United States Attorney, and the justices of the Court of Private
Land Claims protect the rights of those Spanish, Mexican and Pueblo Indian
grantees and heirs who had failed to claim their interest under the provisions
of the act, yet the CPLC took it upon itself to ignore that mandate.
Congress, in the language of the
Dawes Act, had addressed the property interests of Indians who failed to come
forward with their claims at the time the government was withdrawing communal
land and establishing individual allotments, differently. Section 1 of the
Dawes Act had stated:
That if any one
entitled to an allotment shall fail to make a selection within four years after the
President shall direct that allotments may be made on a particular reservation, the Secretary of the Interior may
direct the agent of such tribe or band,
if such there be, and if there be no agent, then a special agent appointed for that purpose, to
make a selection for such Indian, which selection
shall be allotted as in cases where selections are made by the Indians …
A comparison of these two sections clearly establishes that
Congress, in dealing with the Indians on their Reservations and the Spanish and
Mexican Grantees and their heirs on their Land Grants, intentionally treated
them unequally—not to mention that both groups were being treated different
than the "native" Americans arriving from the east.
The information provided here is
but an embryonic snapshot of our government's maltreatment of its Indian,
Spanish and Mexican citizens property rights over the past thirteen decades. Since the passage of the
Dawes, Court of Private Land Claims and Forest Reserve Acts, other than the
establishment of an Indian Claims Commission to allow Indian Tribes to file claims
against the United States, not a whimper has been heard from the federal and
state governments regarding the continuing adverse effects of the maltreatment
discussed above.
In considering whether it is too
early or too late to attempt to correct this century of maltreatment and
disregard for a significant portion of our population Congress can no longer afford
to ignore recent census data. Man's inhumanity to man will not survive as the
order of the day in the future.
PRESIDENTIAL EXECUTIVE ORDER RESERVATIONS
Presidential executive order reservations have existed
since the 1850’s. The only important requirement for the establishment of an
executive order reservation has been that it must be approved congress. Hundreds have been granted
over the decades, including a number right here in New Mexico.
One of the earliest
executive order reservation histories serves well to establish the politics of
the establishment of executive order reservations. In the late 1800’s President
U.S. Grant established two reservations in the San Diego of Southern California.
He granted the two tribes approximately 90,000 acres. The “native” settlers arriving
from the east began to complain immediately that it was not fair to give the
tribes the 90,000 acres as it denied the “natives” the opportunity to have the
land.
As one might expect, President Grant abruptly cancelled the
two executive orders in order to satisfy the “natives.” Is this possibly the
genesis of the term “Indian giver?”
However, it appears from a continued review of the facts,
President Grant had another change of heart and again issued executive orders,
this time to the two tribes he had originally granted the reservations and a
number of other tribes in the area, increasing the grant to over 100,000 acres.
The only difference was that he changed the location of the Reservations to
areas which he believed the “natives” would not find desirable. As history
would have it, the “natives” continued to crowd into California and the “worthless”
land previously given to the tribes was becoming more and more valuable to the “native”
Americans.
By this time, U. S. Grant was no longer president so the
onus of correcting the problem fell upon Rutherford B. Hayes to once again
cancel the Reservations, which he did, by withdrawing the 90,000 acres which
had initially been established by President Grant.
For those of you who find this discussion of “giving” and
“ungiving” of land by Executive Order Reservations to be more than just an
unnecessary digression from the focus of this paper let me place it in context as
it relates to the State of New Mexico.
In order to do so, we must review the history of the
Mescalero and Jicarilla Apache Reservations and the Navajo Nation and how they
were established. Of the three reservations, Jicarilla Apache Reservation was
the only one to have been granted land by either Spain or Mexico.
Mexico granted the Jicarilla’s approximately 1,000,000
acres “east of Taos” which later became
known as the Maxwell Land Grant.
In the early 1870’s the
U.S. Government tried to force the Jicarilla’s to settle at Fort Stanton, but
failed to move them. In 1874 the government then granted them approximately
576,000 acres near Tierra Amarilla. This reservation lasted for four years
until Congress passed an act forcing them off the land. Once they refused to
leave their reservation their annuities were canceled.
Then in 1880 the act of 1878 was repealed the Jicarilla’s
were granted a new reservation east of the one granted in 1874. Three years
later they were again forced to move to Fort Stanton. In February 1887 an
Executive Order Reservation was once again established for them near Tierra
Amarilla granting them in excess of 400,000 acres and in 1908 they were granted
an additional 500,000 acres south of their then existing grant. All of this was
taking place while the Court of Private Land Claims was taking approximately
99% of the land from the Spanish San Joaquin del Rio de Chama and Juan Bautista
Valdez Grents and the Mexican La Petaca Grant .
Not to belabor the issue more than necessary I will
only set out the Executive Orders involved with the Mescalero Apache
Reservation, omitting the actual descriptions.
On May 23, 1873
President Grant issued an Executive Order which stated:
Executive Mansion, May 29, 1873.
It
is hereby ordered that the tract of country above described be withheld
from entry and settlement as public lands,
and that the same be set apart as a reservation for the Mescalero
Apache Indians, as
recommended by the Secretary of the Interior and Commissioner of Indian Affairs.
U. S. GRANT.
(The description contained in this proclamation is worth reading):
Commencing at the southwest
corner of the Fort Stanton reduced military
reservation, and running thence due south to a point on the hills near the north bank of the Rio Rindoso; (sic)
thence along said hills to a point above
the settlements; thence across said river to a point on the opposite hills, and thence to the same line
upon which we start from Fort Stanton; and thence
due south to the thirty-third degree north latitude; thence to the top of the Sacramento Mountains, and along the
top of said mountains to the top of the
White Mountains; thence along the top of said mountains to the headwaters of the Rio Nogal, (sic)to a point opposite the starting point, and thence to the starting point.
So much for the Spanish and Mexican Grantees lack of ability to use clearly defined boundary markers.
The next Executive Order, dated
February 2, 1874 read as follows:
Executive .mansion, February 2, 1874.
In lieu of an Executive order dated
the 29th of May last, setting apart certain lands in New Mexico as
a reservation for the Mescalero Apaches, which
Older is hereby canceled,
it is hereby ordered that there be withdrawn from sale or other disposition,
and set apart for the use of said Mescalero Apaches and such other
Indians as tho (sic) Department may see fit to locate thereon, the tract of country in New
Mexico (except so much thereof as
is embraced in the Fort Stanton reduced military reservation) bounded as follows,…
U. S. Grant
The next Order read:
Executive Mansion, October 20, 1875.
In
lien of executive order dated February
2, 1874, setting apart certain lands in New Mexico as a reservation for
the Mescalero Apaches, which order
is hereby
canceled, it is hereby ordered that there be withdrawn from sale or other disposition, and set apart for
the use of said Mescalero Apaches, and such other Indians as the Department may
see fit to locate thereon,
the tract of country in New Mexico
(except so much thereof as is embraced
in the Fort Stanton reduced military reservation)
bounded as follows:…
U.S.
Grant
Then:
EXECUTIVE
MANSION, May 19, 1882.
In Lieu of executive order dated October 20, 1875, setting apart certain lands in New
Mexico as a reservation for the Mescalero Apaches,
which order is hereby canceled, it is hereby ordered that there be withdrawn from
sale or other disposition, and set
apart for the use of the said Mescalero Apaches and
such other Indians as the Department
may see fit to locate thereon, the tract of country in New Mexico bounded as follows:…
Chester
A. Arthur
And finally,
Executive Mansion, March 24, 1883.
In lieu
of executive order dated
May 19, 1832, setting apart certain lands in New Mexico as a reservation for the Mescalero Apaches, which order is
hereby canceled, it is hereby
ordered that there be withdrawn from sale or other disposition and setapart for the use of the said Mescalero Apaches and such other Indians as the Secretary of the Interior may see fit to
locate thereon, the tract of country in New
Mexico bounded as follows:…
Chester
A. Arthur
The Navajo Nation is
an example of the flexibility in adding to and taking land from executive Order Reservations. It was made up of numerous executive order increases to the original Reservation and today the total of the various increases its total exceeds
15,000,000 acres. It received executive order increases in acreage in the
years: 1868, 1878, 1880, 1882, 1884, 1886, 1900, 1901, 1905, 1907,
1913, 1918, 1930 and 1934.
CONCLUSION
Once further research on the issues raised herein has been
completed, a course of action to correct the discriminatory taking of land from
the Indian Tribes and Spanish and Mexican Land Grants must be considered. My
research had led me to the conclusion that there are really only two viable
courses of action which offer any hope for a fair and just resolution.
The first, is to use the
mechanism used since 1850, to seek presidential Executive Order Reservations and Grants
to begin the process of returning the settlements where the Grantees lived as a
show of good faith. These reservations and Grants would require congressional approval
and unfortunately be subject to cancellation. For that reason it would be
essential that patents issue immediately upon congressional approval.
An additional step would be to also return to the Grants a
significant portion of those lands which had been granted by Spain and Mexico
for their perpetual use of the heirs of the grantees.
The other approach would be to request Congress to extend
the life and the authority of the Indian Claims Commission. This should not
even be considered however unless and until Congress establishes its
willingness to expand the jurisdiction of the Commission to the heirs of the
Spanish and Mexican Land Grants so that they might finally be allowed the
opportunity to challenge the government's taking of millions of acres of their
Treaty protected rights.
Mike
Scarborough
