The Bill - H.R. 505: The legislation requires the Attorney General to investigate whether the United States failed to implement provisions of the Treaty of Guadalupe-Hidalgo which pertain to community land grant claims in New Mexico. The bill directs the U.S. Attorney General to report back to Congress within one year on any failures to implement the Treaty. If the Attorney General concludes that the United States failed to protect land grant claims, the report must outline actions the U.S. government could take to redress grievances. Senator Domenici and former northern New Mexico Republican Rep. Bill Redmond have repeatedly suggested the solution is to privatize public lands.

History: The 1848 Treaty of Guadalupe-Hidalgo which ended the Mexican War originally included Article X protecting the validity of Spanish and Mexican land grants in territories ceded to the United States. However, the U.S. Senate rejected the specific protections of Article X while affirming, in other provisions of the treaty, the same protection of general property rights held by all U.S. citizens. Subsequate legislative actions and court ruling required that land grant claimants submit their land claims to U.S. courts for validation. This was frequently a long and expensive process and often ended in sale of the land to pay court costs. Delays and misunderstanding resulted from the fact that land grants were established under one legal system (Hispanic customary law) and adjudicated under another (Anglo common law). Utimately, 82 grants in New Mexico received congressional confirmation which represented only about six percent of the total area sought by land grant claimants.

Politics: There were five attempts in the 1970's to establish a commission similar to one proposed by Domenici and Bingaman to review treaty compliance. These efforts were spearheaded by liberal Democrats such as Henry Gonzales (D-TX) and Ron Dellums (D-CA) and included the consideration of private property. They were easily defeated in Congress because federal investigations into land tenure unsettled powerful commercial and speculative interests in New Mexico and elsewhere.

   The current focus on public lands is consistent with the privatization agenda of the congressional Republican majority. Also, Republican efforts to appear proactive on the emotional issue of loss of patrimony has obvious political appeal given the growing influence nationwide of the Hispanic vote. Democrats have called these Republican overtures a sham to mask their anti-Hispanic policies. Former northern New Mexico Republican Rep. Bill Redmond pushed a land grant bill through the House last year with the support of only 12 Democrats. The bill later died in the Senate. Democrat Tom Udall defeated Redmond in the last election with strong support from Hispanic voters and, not surprisingly, the first bill Udall introduced was a land grant bill nearly identical to Redmond's.

Problems with the Bill: This rider is being pushed through the Senate without public hearings or debate. Because of the enormous impact privatization could have on public lands in northern New Mexico, it is vital that this legislation be introduced as a free standing bill subject to full public scrutiny. The potential for environmental degradation is significant. Scholars believe the Forest Service has done a better job of protecting land than privately managed land grants. Existing community land grants in New Mexico often fail to adequately to protect wildlife habitat, clean water and long-term productivity.

Some of the issues that must be addressed include: 1) Important federal environmental laws would not apply to privatized land. In the absence of these laws, which provide for public oversight and access and mandate the maintenance of viable wildlife populations, commodity production would prevail over the protection of wilderness, endangered species and clean water 2) There is nothing in the bill which exempts wilderness areas from being privatized. In fact, nearly every Forest Service wilderness area in northern New Mexico is subject, in part, to land grant claims 3) There is nothing in the bill to prevent speculation and development on newly privatized lands 4) The Attorney General and the President are given far too little time to adequately review the complex legal history of land grants (Redmond's bill called for the report to be completed in ten years while the Domenici/Bingaman bill shortens it to one year).

Forest Guardians' Recommendations: We believe the principle of no net loss of public lands should guide efforts to administer justice in this case. Two wrongs don't make a right. The privatization of millions of acres of public lands would deny public access, hasten the degradation of resources and deny future generations their heritage.

   However, if injustices can be well documented and the only way to address grievances to the satisfaction of land grant claimants is to transfer ownership of public lands, then such actions should only be taken to the extent that private lands of comparable or greater ecological value be acquired for inclusion in the public domain. The Land and Water Conservation Fund has billions of dollars available for this purpose. In no case, however, would we support the privatization of wilderness areas, habitat areas critically important for the recovery of endangered species or areas containing streams that meet the highest protection standards of the Clean Water Act. 
 
 

 SAM HITT
Forest Guardians
Santa Fe, N.M.
Sep. 15, 1999

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