Christine A. Klein
Treaties of Conquest: Property Rights, Indian Treaties and the Treaty of Guadalupe Hidalgo, 26 N.M. L. Rev. 201, 201-204, 218-229 (Spring 1996)
Treaty of Guadalupe Hidalgo guaranteed that private property rights would be "inviolably respected" and that the inhabitants of the conquered territory would be "maintained and protected in the free enjoyment of their liberty and property ...." The Supreme Court expressed its confidence that the United States would live up to those solemn promises:
[The United States] have desired to act as a great nation, not seeking, in extending their authority over the ceded country, to enforce forfeitures, but to afford protection and security to all just rights which could have been claimed from the government they superseded.
Despite such generous pronouncements, many property rights arising under Spanish and Mexican land grants were not recognized by the United States. In California, approximately twenty-seven percent of land grant claims were rejected; in the territory of New Mexico, some seventy-six percent of such claims were rejected.
These land loss statistics can be attributed, in significant part, to the fact that the Treaty of Guadalupe Hidalgo was not regarded as self- executing. As a result, Mexican property rights were not ratified by the treaty itself but had to await congressional action for their confirmation. Thus, the implementing legislation and not the treaty became effectively the "law of the land." That legislation, in turn, required Mexican landowners to assume the burden of proving the validity of their titles and to negotiate a maze of legal requirements implemented by a system and in a language that were foreign to them. Even confirmed land grants, moreover, were subsequently lost due to the enormous costs of litigation.
[Courts] virtually ignored the language of the treaty in their adjudication of Hispanic land claims. Instead, judicial interpretation focused almost exclusively upon the treaty's implementing legislation--statutes that received an increasingly strict interpretation over time. The tone of morality and judicial activism relatively common in early Indian treaty cases was gradually replaced by an amoral pragmatism and by consistent deference to the perceived intent of Congress.
1. The Theory of Self-Executing Treaties
Although the United States Constitution provides that treaties are "the supreme law of the land," a like status has been assigned to federal statutes. In an effort to establish a hierarchy among the various types of federal law, the Supreme Court has created the doctrine of the self- executing treaty.
The principle was first enunciated in 1829 by Chief Justice Marshall in Foster v. Neilson. Under that doctrine and contrary to the practice of other western nations, the United States recognizes that treaties can be effective and binding upon domestic courts without legislative implementation. In Foster, plaintiffs claimed land in West Florida (now Louisiana) under a grant from the King of Spain made prior to the transfer of that territory to the United States. The 1819 Treaty of Cession warranted that all Spanish land grants made prior to a specified date "shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty." That provision, said the Court in denying plaintiffs' right to the property, was merely a promise of future action by the legislature, and not a present rule for the Court. Despite its determination that the treaty in issue was not effective without subsequent legislation, however, the Court recognized the theoretical possibility under United States law of a self-executing treaty:
A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.
In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.
Four years later, in United States v. Percheman, Justice Marshall changed his position and held that the 1819 treaty with Spain was in fact self- executing. That reversal was based upon new evidence demonstrating that the Spanish version of the treaty should have been translated as land grants "shall remain ratified," rather than "shall be ratified."
As Foster and Percheman illustrate, the classification of treaties as either self-executing or non-self-executing is an inexact science. In the absence of specific guidance, policy considerations can play an influential role in a court's determination. In elevating specific legislative procedures over the general property guarantees of the Treaty of Guadalupe Hidalgo, courts were swayed by a desire to separate Hispanic property from the public domain as quickly as possible in order to facilitate westward expansion. Ironically, then, the theoretical framework of self- executing treaties emerged first in a Spanish land grant case. The theory was not applied in that case, however, nor in numerous cases construing Spanish and Mexican land grants under the subsequent Treaty of Guadalupe Hidalgo.
2. Land Claims in California: Distinguishing Perfect from Imperfect Title
The land claims process in California illustrates clearly the disparity between generous treaty promises and stinting statutory implementation. There, the treaty's promise of indefinite protection was reduced by statute to a period of merely two years. Under the California Land Settlement Act of 1851, "each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government" was required to submit such claim for adjudication before a special three-person commission. That provision was broadly construed, with "each and every person" encompassing Hispanic land grantees, Indian tribes, and the State of California itself. Failure to present a claim within two years after the Act's passage would result in a harsh penalty--the claimed property would be deemed to belong to the public domain of the United States. The accelerated claims adjudication mandated by the Act can be attributed, in part, to the discovery of gold in California and the resultant pressure by gold prospectors to open lands to mining exploration. Out of the 813 claims presented, the California commission confirmed title to 604 of them, involving some nine million acres of property.
a. Decisions of the California Supreme Court
The Act's two-year limitation period, requiring the forfeiture of lands not presented promptly for adjudication, created a potential conflict with the treaty guarantee of inviolable respect for property rights. The state supreme court, however, minimized such conflict through a restrictive interpretation of the Act under which only imperfect titles required adjudication before the land claims commission.
In Minturn v. Brower, the California Supreme Court held that a land grant from the Mexican government--complete and perfect under the terms of Mexican law--was not subject to forfeiture for failure to present the grant for adjudication before the land claims commission. In reaching that decision, the court distinguished between perfect and imperfect land titles. The Treaty of Guadalupe Hidalgo was construed as self-executing such that perfect grants "stood confirmed by the treaty acting at the time of its creation, eo instanti, directly upon the subject" and need not be presented to the land claims commission for confirmation. Imperfect or inchoate grants, in contrast, required confirmation by the new government. Although the United States acquired the Mexican territory "charged with the duty of carrying out in good faith the obligations of the former Government," it could justly "prescribe the proceeding necessary to accomplish the duty which devolved upon it to invest the grantee with a perfect title."
Until 1889, the California Supreme Court exempted perfect land grants from the Act's adjudication requirement. Such accommodation of statute and treaty comported with the United States Supreme Court's general admonition early in that century that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." It was also consistent with previous land grant decisions under earlier treaties in which the United States Supreme Court stated that under the law of nations, perfect titles were "intrinsically valid ... and ... they need[ed] no sanction from the legislative or judicial departments of this country."
b. Botiller v. Dominguez
The issue decided in Minturn first reached the United States Supreme Court in the 1889 case of Botiller v. Dominguez. In Botiller, a Mexican land grantee brought an action in ejectment to recover possession of the grant from settlers claiming title under the United States' homestead laws. The plaintiff's land grant was undisputedly complete and perfect under the laws of Mexico, but had not been presented to the land claims commission for confirmation. In reversing the decision of the California Supreme Court, the United States Supreme Court held "that no title to land in California, dependent upon Spanish or Mexican land grants can be of any validity" unless presented to and confirmed by the board of land commissioners within the time prescribed by statute. In so holding, the Court invalidated a perfect title that had been granted by Mexico twenty years previously.
Botiller is an important case, documenting the Court's emerging pragmatism and increased willingness to defer to Congress in matters involving Spanish and Mexican land grants. Half a century earlier, Chief Justice Marshall had considered a similar statute governing land claims in the Florida territory acquired from Spain in 1819. That legislation, similar to the Act at issue in Botiller, established a commission for the settlement of land claims in Florida and provided that all claims not filed with the commissioners within one year were void. In dicta, Justice Marshall stated that "[i]t is impossible to suppose, that Congress intended to forfeit real titles, not exhibited to their commissioners within so short a period." He supported that position with a strained interpretation of the statute such that "[t]he provision, that claims not filed with the commissioners [within one year] should be void, can mean only that they should be held so by the commissioners, and not allowed by them. Their power should not extend to claims filed afterwards."
The Botiller Court, in contrast, clearly believed that Congress intended to forfeit real titles not presented to the California commission within two years. Its reasoning was influenced heavily by practical concerns created by the discovery of gold in California. The resulting "rush of emigration almost unparalleled in history" created a pressing need to distinguish private lands from those belonging to the government. The 1851 statute, said the Court, was well tailored to accomplish that purpose provided that it was applied to all Hispanic land claims--perfect and inchoate, legal and equitable. An expansive application of the statute, reasoned the Court, would avoid past difficulties encountered by the United States under cessions of territory in Florida and Louisiana, where attempts to distinguish private lands from the public domain "failed for want of a clear, satisfactory and simple mode of doing it, by bringing all the parties before a tribunal essentially judicial in its character, whose decisions should be final without further reference to Congress."
In rejecting plaintiff's argument that the California statute was invalid because it conflicted with the Treaty of Guadalupe Hidalgo, the Court considered neither the language of the treaty, nor whether a conflict actually existed, nor possible statutory interpretations that would avoid such a conflict. Instead, the Court simply read the statute literally and placed all responsibility for the consequences upon Congress:
[S]o far as the act of Congress is in conflict with the treaty with Mexico, that is a matter in which the court is bound to follow the statutory enactments of its own government. If the treaty was violated by this general statute enacted for the purpose of ascertaining the validity of claims derived from the Mexican government, it was a matter of international concern, which the two States must determine by treaty, or by such other means as enables one State to enforce upon another the obligations of a treaty. This court, in a class of cases like the present, has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disregard.
In retrospect, Botiller marked the decline of judicial activism for the protection of Spanish and Mexican land grants.
CONST. art. VI, cl. 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
Foster v. Neilson 27 U.S. (2 Pet.) 253, 314 (1829)(distinguishing self-excuting treaties from treaties requiring legislative enactment"
California Land Settlement Act of 1851 Act of March 3, 1851, ch. XLI, 9 Stat. 631 (Reducing the treaty's promise of indefinite protection of Mexican claims to a period of merely two years).
Act establishing the Office of the Sureyor General in New Mexico Act of July 22, 1854, ch. 103, 10 Stat. 308 ( Congress created the office of the surveyor general to settle the status of Spanish and Mexican land grants in the Territory of New Mexico).
Teschemacher v. Thompson 8 Cal. 11 (1861) (asserting that land owners in California had been forced to dispose of their property at half its value to pay legal expenses)
United States v. Auguisola 68 U.S. (1 Wall.) 352, 358-59 (1863)(affirming confirmation of Mexican land grant in California).
Minturn v. Brower 24 Cal. 644, 662-63 (1864) (A land grant from the Mexican government--complete and perfect under the terms of Mexican law--was not subject to forfeiture for failure to present the grant for adjudication before the land claims commission)
Botiller v. Dominguez 16 P. 241 (1887), rev'd, 130 U.S. 238 (1889) (reversing the California Supreme Court, the US Supreme Court held "that no title to land in California, dependent upon Spanish or Mexican land grants can be of any validity" unless presented to and confirmed by the board of land commissioners within the time prescribed by statute).
Act establishing Court of Private Land Claims Act of March 3, 1891, ch. 539, 26 Stat.85 (Court was authorized to determine the validity of title and the boundaries of any lands claimed under a Spanish or Mexican grant in the territories of New Mexico, Arizona, and Utah and in the states of Nevada, Colorado, and Wyoming)
Whitney v. United States 167 U.S. 529, 547 (1897) (claimants must prove validity of alleged grant by a fair preponderance of the evidence).
United States v. Percheman