Tuesday, July 16, 2019

 Jon Michael Haynes

Excerpted From: Saying We're Sorry? New Federal Legislation and the Forgotten Promises of the Treaty of Guadalupe Hidalgo , 3 Scholar: St. Mary's Law Review on Minority Issues 231-264, 232-236 (Spring 2001)(221 footnotes omitted)

Recently in Texas, Mexican-American families have begun to fight for the return of their ancestral lands, lands taken from them throughout decades of injustice at the hands of predominantly Anglo courts. In fact, the entire Southwest has seen a slow but steady rise in the number of active voices calling for accountability and compensation for the theft of land formerly granted under Spanish and Mexican rule. Only a handful of these claims have resulted in successful outcomes for Mexican Americans; and of these, none were based on the seemingly forgotten promises of the Treaty of Guadalupe Hidalgo (the Treaty).

The Treaty of Guadalupe Hidalgo was ratified in 1848, ending the war between Mexico and the United States and effectively handing over control of the modern Southwest from Mexico to the United States. Under the terms of the Treaty, Mexican property holders were to retain full enjoyment and protection of their property as if they were citizens of the United States. Furthermore, where there existed any doubt as to whether property was validly owned or not, the laws under which these grants of land were made were to control. Thus, where there was an issue concerning the title to real property, Spanish or Mexican title should have been sufficient to prove ownership according to the terms of the Treaty. However, as claims began to arise citing the protection of the Treaty, the United States government and judiciary continually managed to deny these claims through a combination of legislation and judicial decisions.

Due to the Treaty's unenforceability and an historic inability to adjudicate claims in American courts under other existing legal doctrines, *233 those bringing land-related claims under the Treaty have recently turned their attention to the federal legislature. To date, there have been only a small number of bills introduced in Congress that examine the validity of these claims and propose some form of restitution to dispossessed landowners and their descendants. In 1997, House Resolution 2538 sought to create a presidential commission to determine the validity of these claims. Additionally, a bill introduced before the Senate in 1998 proposed to acknowledge these property claims outright and to develop a method to compensate the dispossessed families. Neither of these potential measures ascended beyond bill status. Nevertheless, their existence evidences a measure of hope for dispossessed landowners and their descendants as it demonstrates an increasing acknowledgement of the history of these lands by the United States government. Such proposed legislation also signifies the overdue recognition that citizens of the United States have been denied rights guaranteed to them for a period exceeding 150 years. Finally, in 2000, Senate Bill 2022 was introduced in the 106th Congress. In drafting the proposed legislation, Congress *234 made findings which recognized that the loss of property subsequent to the war with Mexico has had serious repercussions in the Mexican-American community in the southwest United States. In addition, the proposed legislation specifically questioned whether the United States fulfilled its obligations under the Treaty. Congress acknowledged that actions taken by the federal government as well as the Territory of New Mexico in the mid to late nineteenth century were central to the dispossession of Mexican American landholders. The findings also indicated a disparity in the outcomes of land grant adjudications in New Mexico when compared to California. Although not directly placing blame, the legislation questioned whether adjudications in New Mexico were fairly and equitably administered. Instead of squarely addressing the issue, however, the bill concludes with a nebulous promise to remedy any "lingering injustice" from the failure of the United States to meet its obligations under the Treaty. The legislation provides that alternative methods will be prepared and the President shall then submit to Congress recommendations to resolve these claims within six months of the submission of the GAO report. The notable caveat is added that "[i]n no *235 event shall these recommendations include the divestiture of private property rights."

While the proposed legislation represents a long overdue acknowledgement of the problem, it does not sufficiently address the root of that problem. The proposed legislation fails to mention the United States' blatant failure to adhere to the provisions of the Treaty and only touches on the long history of social and economic oppression that Mexican Americans have suffered as a result. In addition, it is significant to note that Mexican Americans are the only minority group in the United States, other than Native Americans, to be annexed by conquest and to have their rights allegedly safeguarded by treaty. Therefore, while this overdue progress is necessary, there remains the issue of accountability on the part of the federal government. It is vital that an official apology be issued to those wrongfully and illegally dispossessed of their property. Without this public apology, no measure for righting the wrongs of the past can be considered complete.

A general survey of this era in American history reveals one constant: the United States, through an unwritten policy of territorial expansionism via political and judicial avenues, has denied Mexican Americans their Constitutional rights both as landowners and as citizens in general. In addition, the history of the Treaty and the United States' subsequent failure *236 to adhere to the Treaty's spirit and intent reveals a microcosm of race relations throughout United States history.

This comment illustrates one chapter of this history; a history of accumulated injustices premised upon racist notions and fueled by self-serving political and judicial institutions. In doing so, this comment demonstrates the United States government's culpability for the dispossession of Mexican- American landholders. More specifically, this comment focuses on the federal government's and judiciary's actions subsequent to ratification of the Treaty and the 153 years of inequality under the law that have followed. By tracing the political and legal history of the Southwest, this comment makes evident the underlying force behind this era of injustice--United States economic policy. This comment specifically illustrates the United States' desire to acquire and control land. The war, Treaty, federal legislation, and judicial opinions that followed have all resulted in the dispossession of Mexican-American landholders and the simultaneous enrichment of White America. A survey of the relevant historical, political, and judicial actions during the middle to late nineteenth century demonstrates that the acquisition and control of land was the primary factor behind the disenfranchisement of Mexican Americans at the precise moment that they became a substantial component of the population of the United States.

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