In 1848 the United States and Mexico signed the Treaty of Guadalupe Hidalgo, ending the Mexican American War (Menchaca 1993:584). The United States government stipulated in the treaty that Mexicans who lived within the newly annexed territory of the Southwest would be “incorporated into the Union of the United States” with the “enjoyment of all the rights of citizens” (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Article 9, p. 930). The treaty thus promised to protect the political rights of the conquered population. Tragically, within a year of the treaty’s ratification, the United States government violated these citizenship equality statements and began a process of racialization that categorized most Mexicans as inferiors in all domains of life. I define this process of racialization as the use of the legal system to confer privilege upon Whites and to discriminate against people of color. Under this legal process Mexicans who were White were accorded the full legal rights of United States citizens, while most mestizos, Christianized Indians, and afromestizos were accorded inferior legal rights.
The violation of the Treaty of Guadalupe Hidalgo was yet another stage in the legacy of discrimination that had been part of Mexico’s colonial history. It was part of the drama of empire rooted in power and the role of “the Other” that had been played out under Spanish rule. When the United States government violated the treaty, the Mexican people of the U.S. Southwest found themselves cast in a racialized role that re-enacted the processes of categorization, repression, and domination that characterized the racialization of Mexicans under Spanish rule. The victory experienced by people of color after Mexican independence was short-lived, for the U.S. government breached the treaty and established a racial order that again provided Mexicans of color inferior civil rights.
Through annexation, conquest, and purchase, the United States government acquired Mexico’s northern frontier between 1845 and 1854 (Weber 1982:xv).1 Mexico began to lose its hold over the Southwest when Anglo-American immigrants won the Texas War of Independence and separated from Mexico in 1836 (ibid.). Matters worsened after the United States annexed Texas in 1845 and continued to pursue the conquest of other parts of the Southwest (Menchaca 1999:19). The following year the United States declared war against Mexico, charging that Mexican troops had invaded U.S. territory by crossing the Rio Grande. The dispute centered over where the Texas-Mexico border had been set after Texas obtained its independence. Mexico claimed that the border lay on the Nueces River and did not include South Texas, while the United States charged it was further south along the Rio Grande. The U.S. government declared war, and the Mexican-American War began on 11 May 1846 (Weber 1982:274). Within a year and a half, the professional and well-equipped U.S. military defeated Mexico and easily vanquished the civilian Mexican militia. Before the war, due to financial troubles, the Mexican government had withdrawn most of its military troops from the outposts and garrisons in the Southwest, leaving its citizens to defend themselves (Castañeda 1950; Weber 1982). The citizens had been required to take full responsibility for their military defense and were expected to form civilian militia units. Therefore, the badly armed civilians quickly fell into the hands of the U.S. military during the Mexican American War (Spicer 1981). Although Mexico did send troops to aid its civilians, their numbers were insufficient to fend off a foreign invasion.
The four border states of California, Arizona, New Mexico, and Texas were acquired by the United States. Mexico also lost parts of its northern frontier that today include Nevada, Utah, parts of Colorado, and small sections of Oklahoma, Kansas, and Wyoming; these areas contained no Mexican settlements and remained under the control of indigenous peoples (Weber 1982). Only southern Arizona did not fall into U.S. hands at this time. The Treaty of Guadalupe Hidalgo ended the war. It was executed on 2 February 1848 in the city of Guadalupe Hidalgo, Mexico, and ratified and exchanged at Querétaro, Mexico, on 30 May 1848 (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, p. 922; Tate 1969:2). It stipulated the political rights of the inhabitants of the ceded territories, set the U.S.-Mexico border, and included several binational agreements on economic relations.
Unfortunately, within a year the United States violated the treaty with respect to the citizenship articles and refused to extend Mexicans full political rights on the basis that the majority population was not White (Menchaca 1993). Instead the U.S. government began the process of racializing the Mexican population and ascribing them different legal rights on the basis of race. Mexicans who were White were given full citizenship, while mestizos, Christianized Indians, and afromestizos came under different racial laws. At the time of the ratification of the treaty, U.S. racial laws conferred full political rights only upon free Whites (i.e., individuals who were not indentured servants or criminals), while Blacks and Indians could be indentured or enslaved in most states. People of mixed European and Indian ancestry could not be enslaved, but they could be barred from voting, practicing law, or becoming naturalized citizens, and in many states the selection of their marriage partners was restricted (Konvitz 1946; May 1929; Menchaca 1993). Thus, Mexico’s liberal racial laws were nullified after the Mexican American War, and Mexicans entered a new racial order similar to that practiced by Spain.
The United States chose to violate Treaty Articles 8 and 9, which incorporated all Mexicans as U.S. citizens. Article 8 stated that the United States agreed to extend citizenship to all Mexican citizens who remained in the ceded territories. If these persons did not want citizenship, they had to so indicate within one year; otherwise, they would automatically become U.S. citizens (cited in Tate 1969). Under Article 9 the United States further agreed that Mexicans who chose to become U.S. citizens would have all the attendant rights. Article 9 stipulated that “Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic … shall be incorporated into the Union of the United States, and be admitted at the proper time … to the enjoyment of all the rights of citizens of the United States” (cited in Tate 1969:20).
Almost immediately, the United States government abandoned its federal responsibilities to its new citizens. Within a year of the treaty, the U.S. Congress gave the legislators of the ceded territories and states the right to determine the Mexicans’ citizenship status (Dale 1951:7; Menchaca 1993:587). At this time the states had the power to determine citizenship eligibility requirements, a power given to them by the Constitution of the United States (U.S. Constitution, Article 4, Sec. 2, cited in Hyman and Wiecek 1982:517–531). This move had a severe impact on Mexicans because the state legislators chose not to give most people of color the legal rights enjoyed by White citizens.
After U.S. occupation, Congress racialized the Indians of the Southwest and determined that they were distinct from Mexicans (Bowden 1971:144; Minter 1993:35–36), although it did recognize that some Christian Indian communities deserved part of the rights extended to Mexicans. Indians who were peaceful and lived in towns or villages would be visited by an agent of the Bureau of Indian Affairs (BIA) to determine if they should be extended legal privileges (Dale 1951; see Minter 1993; and Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Chap. 106, p. 383; Chap. 82, p. 519; Chap. 14, p. 587).
Each agent, before making a final report, was expected to consult an ethnologist. To determine whether a Mexican community was actually Indian, the agent would investigate whether it was governed by a tribal council. Communities that had retained a tribal government would be classified as Indian, but would be exempt from the federal laws applied to nomadic Indians. Instead, such communities would be governed by the specific legislation drafted by their respective state or territorial governments. They would immediately come under federal law, however, if they joined political forces with nomadic Indians, as would any Indian who became a vagrant (Heizer and Almquist 1977; Jackson 1903; Lamar 1966). Individuals who lived outside of an Indian community but were culturally identifiable as Indian would also be governed by the laws passed by their state or territorial governments (Minter 1993; Suñol v. Hepburn, 1850; see United States v. Sandoval, 1913). Each state or territory would have to determine if these ethnically identifiably detribalized Indians were part of the population declared citizens of Mexico under the Plan de Iguala and the Mexican Constitution of 1824 and, if so, decide if they were to be protected by the Treaty of Guadalupe Hidalgo.
Nomadic Indians, however, fell under federal jurisdiction, and uniform policies were enacted. They would not be extended any of the political rights enjoyed by the Indians conquered by Mexico. In 1849 the U.S. Congress gave the War Department management over the nomadic Indians of the Southwest and ordered it to relocate them onto reservations (Dale 1951:7). If they refused they would be punished (Forbes 1982; Takaki 1990). Specifically, they came under U.S. congressional legislation outlined under the Indian Intercourse Act of 1834 (Four United States Statutes at Large 1789–1845, Chap. 161, pp. 729–735). The act was based upon previous congressional acts relating to Indian affairs. In Section 1 of the act Congress delineated the boundaries of the areas where Indians were to reside and indicated the locations of future reservations. Section 12 gave the president the authority to extinguish Indian rights over land they claimed and to relocate them forcibly. And in Section 19 Congress gave the president the authority to send the military into Indian country: (1) to maintain the boundaries set forth to contain the Indians, (2) to protect White settlements, and (3) to punish Indians.
Furthermore, Section 29 of the Act of 1834 adopted several inhumane provisions of the Indian Intercourse Act of 1802 (Two United States Statutes at Large, 1789–1845, Chap. 13, pp. 139–146). The purpose of these provisions was to maintain the Indians on the reservations and to sentence them to death if they chose to flee. Section 14 of the Act of 1802, which gave U.S. courts the right to arrest and press criminal charges against people leaving the reservation, and Section 19 of the same act, which prohibited Indians from traveling on roads that connected Indian and White settlements, were reinstated. If Indians broke these provisions, Section 15 of the Act of 1802 gave judicial courts the right to sentence them to death:
And be it further enacted, That the superior courts in each of the said territorial districts, and the circuit courts, and other courts of the United States … are hereby invested with full power and authority to hear and determine all crimes, offenses and misdemeanors against this act … and in all cases where the punishment shall be death, it shall be lawful for the governor of either the territorial districts where the offended shall be apprehended …to issue a commission of oyer and terminer to the superior judges of such district, who shall have full power and authority to hear and determine all such capital cases. (Two United States Statutes at Large 1789–1845, Chap. 13, Sec. 15, p. 144)
In effect, the Indian Intercourse Act of 1834 was designed to contain nomadic Indians on the reservations at all cost, through severe punishment and even death sentences (Dale 1951; Forbes 1982; Takaki 1990).
Thus, after the Southwest became part of the United States the War Department pursued a removal campaign against the nomadic Indians (Jackson 1903; Larson 1968; Spicer 1981). Fortunately, the Christian Indians acquired from Mexico were spared such a disastrous fate, because they had demonstrated their civility by remaining at peace with Spain, Mexico, and the United States. Through these legal mandates Indians were categorized and racialized apart from other Mexican groups.
In California the state constitution of 1849 granted only Whites full citizenship and gave only U.S. males and White Mexican males the right of suffrage; Indians, mestizos, and people of Black descent were ineligible to vote and were gradually stripped of most political rights (California Constitution, 1849, Article 2, Sec. 1, p. 4). California joined the union as a free state and prohibited slavery. Mexican citizens who were afromestizo and free Blacks who had immigrated to California from other parts of the United States were allowed to settle and were not placed in bondage or deported (California Constitution, 1849, Article 1, Sec. 1, p. 3; Heizer and Almquist 1977).2 Christian Indians also retained their freedom of movement, but it became necessary for the state legislature and the courts to clarify their political status, as clear stipulations were needed to distinguish them from the nomadic Indians and the mestizos.
To determine whether the Christian Indians acquired from Mexico merited any constitutional rights, the California Supreme Court ruled in 1850 in Suñol v. Hepburn that emancipated Indians did obtain citizenship under the Plan de Iguala and the Mexican Constitution of 1824. The judges ruled that Mexican citizenship had not granted them any constitutional rights, however, because emancipated Indians had been given the same constitutional status as lunatics, children, women, and other people dependent upon the state (Suñol v. Hepburn, 1850:279). Under this interpretation of the Plan de Iguala, the judges reasoned that the Christian Indians acquired from Mexico had never had, and should not be given, any U.S. constitutional rights.
After the state constitution was drafted, California legislators also had to clarify the blood quantum Mexicans needed to have in order to receive the legal rights of Whites. Likewise, it was necessary to determine when a person should be categorized as a mestizo or mulatto, since it was a well-known fact that most Mexicans were of Indian descent. In 1849 a person with one-half or more Indian blood was considered non-White and a person one-eighth or more Black a mulatto (California Statutes, 1850, Chap. 99, Sec. 14, p. 230; Chap. 142, Sec. 306, p. 455, cited in Perez v. Sharp, 1948:719; Goodrich 1926:93). In 1851 the blood quantum for being White became more restrictive, as people of one-fourth Indian descent were considered non-White (California Statutes, 1851, Sec. 394, p. 114).
These laws remained in operation into the twentieth century and were often used during the 1800s to deny people of color citizenship (see Perez v. Sharp, 1948). A case in point: in 1870 Pablo De La Guerra, a distinguished citizen of Santa Bárbara and one of the delegates to the first constitutional convention of California (Ross Browne 1850), was prosecuted by the state of California for attempting to exercise the rights of a White citizen (People v. Pablo De La Guerra, 1870). He was also a land-grant heir, part of the founding families of California, and after U.S. occupation served as a district judge and state senator (Bancroft 1964:F-G 769). De La Guerra was a person of predominantly Spanish ancestry, yet there was an uncertainty in his blood line. On his father’s side, he descended from a distinguished Spanish family (ibid.). De La Guerra’s father had migrated to Mexico from Spain around 1798 and later married Antonia Carrillo, who was also part of a distinguished family. Though the Carrillos were one of California’s founding families, their genealogy did not derive from Spain; possibly they were mestizos rather than criollos. Doña Maria’s father, José Raimundo Carrillo, was a native of Loreto (Baja California) whose parentage was uncertain (Bancroft 1964:A-E 746; Garrison 1935). He arrived in California as a soldier and a member of the first land expedition. At first Pablo De La Guerra enjoyed the privileges of a White citizen; however, in 1870 the state of California attempted to strip him of this status and treat him as a person of color (People v. Pablo De La Guerra, 1870). De La Guerra, a man of wealth, fought for his right to be classified as White.
In the California Supreme Court hearing, the attorneys for the state argued that Pablo De La Guerra was not a U.S. citizen because the Treaty of Guadalupe Hidalgo had never had the power to make citizens of Mexicans or Indians and because he was not White. In his defense, De La Guerra argued that he was White and was therefore exempt from California’s racial laws. The court records indicate that De La Guerra testified that he “was born at Santa Barbara in 1819, and has ever since resided at that place and is admitted to have been a White male citizen of Mexico” (People v. Pablo De La Guerra, 1870:339).
Although the state supreme court ruled in favor of De La Guerra, concluding that he was White and therefore not subject to Indian jurisdiction laws, it passed a convoluted decision that upheld California’s right to limit citizenship on the basis of race. The court ruled that although De La Guerra was entitled to the full rights of citizenship, non-White Mexicans were not entitled to the same rights. It stated that the government had the power to limit the political privileges for certain types of Mexicans. The court’s concluding statement affirmed California’s right to discriminate against Mexicans of Indian descent:
The elective franchise is denied to certain persons who had been entitled to its exercise under the laws of Mexico. The possession of all political rights is not essential to citizenship. When Congress admitted California as a State, the constituent members of the State, in their aggregate capacity, became vested with the sovereign powers of government, “according to the principles of the Constitution.” They then had the right to prescribe the qualifications of electors, and it is no violation of the treaty that these qualifications were such as to exclude some of the inhabitants from certain political rights. (People v. Pablo De La Guerra, 1870:343–344)
De La Guerra triumphed and escaped the one-fourth Indian blood classification.3
By the 1880s elites like De La Guerra continued to enjoy financial security but had lost all political influence (Pitt 1970:273). Throughout California Mexicans no longer were appointed to judicial positions, and it was rare for a Mexican to be elected to office at the local level.
People of Black descent in California were accorded civil rights similar to those of mestizos. Indeed, for those days this policy was outright radical, as slavery was prohibited in California and people of Black descent were allowed to remain in the state and own property (Heizer and Almquist 1977). Though Mexicans who were afromestizo and U.S. Blacks who had immigrated to California were treated better in comparison to the treatment that Blacks received in other states, they were racialized and came under the laws extended to free U.S. Blacks (e.g., they were prohibited from marrying Whites, from testifying in court against Whites, and from entering certain professions) (California Statutes, 1850, Chap. 140, p. 424, cited in Perez v. Sharp, 1948:719; Larson 1968).
The issue of placing Black people in bondage was discussed during the first constitutional convention of 1849, but was defeated; several Anglo-American delegates were abolitionists and offered convincing arguments on why California had to enter as a free state (Ross Browne 1850). Among the abolitionists were eight Mexican delegates. Antonio María Pico was the most outspoken on this issue and heatedly argued that slavery should not be permitted in California. He was Pío Pico’s uncle, but as discussed earlier he was not part of the family branch which was racially mixed. Unlike Pío Pico, he is described as a White person (Garrison 1935).
The Indian groups who had not been conquered by the Mexican government came under the governance of the War Department after the Treaty of Guadalupe Hidalgo was ratified. They were classified as nomadic Indians and declared enemies of the state. To address the specific problem posed by the nomadic Indians of California, the U.S. Congress commissioned the War Department to clear hundreds of thousands of acres of their homeland in preparation for the arrival of Anglo-American settlers (Dale 1951; Takaki 1990). This resulted in the massive reduction of the Indian population from 310,000 in 1850 to 50,000 in 1855 (Cook 1976:44, 199; Hurtado 1988:2, 125–168). Sadly, only a few nomadic Indian tribes were spared their lives, and most who survived were Christian Indians.
In New Mexico the Mexican constitutional delegates who were in the majority at the first territorial assembly resisted the racialization of the conquered population. From 1850 to the mid-1870s, a period when the Mexican mestizos retained considerable negotiating power, relatively liberal legislation was passed in New Mexico (Larson 1968). New Mexico’s first territorial constitution was drafted on 15 May 1850 and was entitled the Organic Act of New Mexico. Twenty delegates were present at the constitutional convention: eleven Mexicans and nine Anglo Americans (ibid., 18). Father Antonio José Martínez, a schoolteacher of Taos and the author of New Mexico’s first textbook, became the president of the constitutional delegates. The Organic Act conferred full rights of citizenship upon free Whites and those citizens of Mexico who had become citizens of the United States as a result of the Treaty of Guadalupe Hidalgo (First Legislative Assembly 1851:20). Within days, confusion arose over two issues. Were the Pueblo Indians part of the conquered Mexican population that had obtained U.S. citizenship under the Treaty of Guadalupe Hidalgo? If so, did they thereby acquire the right of suffrage? A month after the constitution was drafted, the Cochiti Indians (part of the Pueblo Indians) sent a delegation to Santa Fe, where it met with government officials to discuss the Cochitis’ citizenship status (Larson 1968). The Cochitis were assured that they counted as part of the conquered Mexican population and were therefore eligible to vote, which they did in New Mexico’s first territorial election. Father Martínez was instrumental in this decision, as he advised several Indian groups to assert their rights.
On 5 September 1853, however, the U.S. Congress rescinded the Pueblo Indians’ voting rights (Larson 1968:82). In defense of the Indians’ political rights, New Mexico’s legislators attempted to bypass Congress’s hostile response by giving Pueblo Indians full citizenship rights at the county and township levels (Deavenport 1856:142). New Mexico’s courts also prohibited federal Indian agents from relocating any Pueblo Indian onto a reservation. The courts proposed that because the Pueblo Indians had adopted the Spanish culture and the Mexican township system, they had the right to obtain special privileges not extended to other Indian groups.
In United States v. Lucero (1869), for example, the New Mexico Supreme Court prohibited homesteaders from settling in Pueblo territory. The main purpose of the ruling was to ensure that the Pueblo Indians would not be converted into landless paupers and thus come under the jurisdiction of the Indian Intercourse Act of 1834. Allegedly the Pueblo Indians had become a Mexicanized Indian race that had adopted the culture, names, and traditions of their Mexican neighbors. Therefore, they deserved special privileges because generations of Spanish cultural indoctrination had uplifted them. The court offered the following opinion on the Pueblo Indians’ citizenship and political rights:
At the date of the treaty of Guadalupe Hidalgo the Indian race, in the Spanish sense of the term, were as much and fully citizens of the republic of Mexico as Europeans …. This court … does not consider it proper to assent to the withdrawal of eight thousand citizens of New Mexico …and consign their liberty and property to a system of laws and trade made for wandering savages and administered by the agents of the Indian department …. The pueblo Indians of New Mexico are not within the provisions of the intercourse act [sic] of 1834 …. In the absence of law or decision on the subject, are we not at liberty to conclude from these facts that the laws, the decision of the courts, and the acquiescence of the people, all recognized the pueblo Indians as citizens, as “Mexicans”? We do so conclude. (United States v. Lucero, 1869:422, 432, 441, 456)
In short, the court decided that the Cochitis and other Pueblo Indians were part of the conquered Mexican people, who—though the federal government denied them U.S. citizenship—were entitled to receive some rights under the Treaty of Guadalupe Hidalgo.
The liberal New Mexico Supreme Court ruling and territorial laws were short-lived. In 1876 the U.S. Supreme Court ruled the Pueblo Indians did not obtain any political rights under the Treaty of Guadalupe Hidalgo (Davis and Mechem 1915; United States v. Joseph, 1876). Federal judges stipulated that the Pueblo Indians were not Mexican, as they were part of the U.S. tribes under the jurisdiction of Congress. The dissolution of the Pueblo Indians’ citizenship rights coincided with the growth of the Anglo-American population. In the late 1870s the Anglo-American population gradually increased; by 1880 it had become the majority, numbering over 90,000 (Lamar 1966:475). And with population growth came political power.
The political status of the population of Black descent following the Mexican American War was tragic. Under the Organic Act of 1850, citizenship was extended to all former citizens of Mexico. That year, however, U.S. Congress refused to recognize that Mexico had “ever” extended citizenship to Blacks (Lamar 1966:19). The U.S. Congress also ruled that Blacks could not become citizens anyway since Hispanos had to pledge allegiance to the new government to become citizens and under the new system of law Blacks did not have this privilege. Thus, since Blacks were not allowed to take the oath of citizenship, the Organic Act could not apply to them. Although Congress refused to confer U.S. citizenship upon Blacks, it did uphold the antislavery position passed by New Mexico’s delegates in the first constitutional assembly (Larson 1968:33–34, 312). The delegates appended a statement to the Organic Act entitled To the People of N. Mexico in which they openly expressed hostility toward slavery. This document contained the declaration of rights of the inhabitants of New Mexico. Here the legislators stated:
Slavery in New Mexico is naturally impracticable, and can never, in reality, exist here; wherever it has existed it has proved a curse and a blight to the State upon which it has been inflicted—a moral social and political evil … we have unanimously agreed to reject it—if forever. (cited in Larson 1968:33–34)
As the slavery debate continued throughout the United States, congressmen from Texas and other proslavery states pressured New Mexico legislators to change their position on slavery. New Mexico’s representatives to Congress were issued a warning—unless New Mexico supported slavery, proslavery legislators would vote against New Mexico’s becoming a state. New Mexico citizens were also warned that Washington would withhold all favors until their legislators passed a slave code. In 1856 Miguel A. Otero, the territorial congressional delegate, finally succumbed to the pressure and offered a compromise (Larson 1968:64). New Mexico would not become a slave state, yet it would prohibit Blacks from living in the territory. Blacks would be allowed to continue to live in New Mexico for no more than thirty days. Unfortunately, this is how New Mexico’s legislators confronted the racial problem imposed upon them by Congress.
After the Mexican American War, Mexico only ceded part of Arizona; the southern region where the colonial settlements had been established remained under Mexican rule (Spicer 1981). Only northern and central Arizona came under U.S. occupation and was temporarily governed by the laws of New Mexico. Within a few years after the war the U.S. government became interested in purchasing southern Arizona. One of the main motives was the information contained in a military report identifying the Mexican settlements as excellent locations to establish garrisons from which a successful campaign against the Apaches could be launched (Officer 1987). The second motive was the possibility of constructing a railroad route through the Mexican towns, former missions, and military centers. At that time, a railroad connecting northern Arizona to other parts of the United States could not be built because the Apaches posed a dangerous threat to the workers. The officers reported that, although the Mexican settlements were in disrepair, Mexico had pacified the area and there were many Mexicans and Indians prepared to fight the Apaches (ibid., 276).
On 30 December 1853 Mexico agreed to sell southern Arizona; six months later the transaction was completed when the U.S. Congress ratified the purchase (Tate 1969:33). On 30 June 1854 the Gadsden Treaty was enacted to protect the political rights of the Mexican population remaining in the territory (Officer 1987:391). The treaty also established the boundary between Arizona-Sonora and resolved several international economic issues. The Gadsden Treaty was based on several provisions contained in the Treaty of Guadalupe Hidalgo. Article 5 of the Gadsden Treaty stipulated that Articles 8 and 9 of the Treaty of Guadalupe Hidalgo would be extended to southern Arizona. Mexicans would be given the right to become U.S. citizens, and their property rights would be protected. Article 5 of the Gadsden Purchase Treaty stipulated: “All the provisions of the eight and ninth … articles of the Treaty of Guadalupe Hidalgo, shall apply to the territory ceded by the Mexican republic” (cited in Tate 1969:39).
After annexation, Arizona was temporarily governed by the laws of New Mexico, but in 1863 the United States government gave it separate territorial status (Menchaca 1993:589). Once it was independent, Arizona’s legislators decided to rescind the citizenship clauses passed by New Mexico and instead draft their new constitution based upon the California model. Members of the first territorial convention of Arizona included twenty-seven Anglo Americans and three Mexicans (Wagoner 1970:41). Under Arizona’s territorial constitution only White males and White Mexican males were incorporated as citizens with full attendant rights (Organic Act of Arizona 1863, revised 1864, Chap. 24, Sec. 6, cited in Hoyt 1877:226). No specific legislation was drafted to determine who qualified as a White Mexican male. During the late nineteenth century, however, only White males were allowed to practice law (Menchaca 1993: 593), and between 1864 to 1909 no Mexican acted as district judge (Wagoner 1970:504). Arizona delegates chose to enter the union as a nonslave state, and Blacks were allowed to remain in the territory (Organic Act of Arizona, Bill of Rights, Sec. 3 and Article 20, cited in Hoyt 1877:16, 26). This liberal policy applied to very few people; U.S. census enumerators counted no Blacks in Arizona in 1860 and only twenty-six ten years later (U.S. Census 1872:20).
The Christian Indians were allowed at first to remain in their homes, and specific policies were not enacted (Officer 1987). On the contrary, they were recruited by the military to fight the Apaches and Navajos who resisted forced relocation onto the reservations. In 1873, however, when Anglo Americans began migrating in large numbers, the massive relocation of peaceful and hostile Indians began (Dale 1951:100–101, 115; Lamar 1966:187). Except for some Apache groups who eluded capture, most Indians in Arizona were rounded up and placed on reservations. Relocation was allegedly necessary for the protection of both the Indians and Whites. Many Whites did not respect the rights of the Indians and regarded them as deadly enemies, to be slaughtered without regard for sex and age, while many Indians, in particular the Apaches, were used to a nomadic lifestyle and were unwilling to change. It is uncertain how many Christian Indians were placed on reservations at this time. During the nearly twenty years since Arizona had become part of the United States, Christian Indians had been left alone and given the opportunity to assume a Mexican public identity (Officer 1987; Spicer 1981). Thus, in Arizona the racialization of the Mexican population resulted in the incorporation of Whites as citizens with full political rights, whereas others were ascribed inferior legal rights.
In Texas the racialization of the Mexican population began in 1836, immediately after the Texas War of Independence, and continued after the rest of the Southwest was annexed to the United States. The 1836 Constitution of the Republic of Texas extended the rights of citizenship to free Whites and to Mexicans who were not Black or Indian (Constitution of the Republic of Texas, 1836, Secs. 7, 9, and 10, in Laws of Texas, Vol. 1, p. 1079). When Texas was annexed to the United States (1845), these citizenship clauses were upheld (Weber 1982:272). The U.S. government passed additional stipulations liberalizing policy toward Indians, however, while becoming more restrictive toward Mexican immigrants. To acquire the right of citizenship Mexicans had to have resided in Texas prior to 1845 (Texas Constitution of 1845, Article 3, Sec. 1. pp. 5–6; Padilla 1979); any person migrating after that date who was not White was ineligible for naturalization and thus was prevented from becoming a qualified elector (see Menchaca 1993). At that time only Whites were allowed to apply for naturalization (Naturalization Act of 1790, Chap. 3, Sec. 1; Naturalization Act of 1802, Chap. 28, Stat. 1).
Under the Constitution of 1845 detribalized Indians who owned property and paid taxes became eligible to vote (Minter 1993; Texas Constitution of 1845, Article 3, Sec. 1, pp. 5–6). They could acquire this right only if they had relinquished all tribal affiliations and had somehow obtained property. Though this ruling was very liberal (no other state had extended such privilege to Indians), it affected few people because after Texas’s independence Indians lost all their grant lands. In 1849, when the Texas State Supreme Court passed McMullen v. Hodge and Others, Christian Indians theoretically became eligible to become U.S. citizens, as the legal infrastructure to allow them to claim mission lands was finally passed (Menchaca 1993; Paschal 1874:1364–1366). Under this ruling Indians could claim mission lands if they could prove that they had adopted Mexican culture (Menchaca 1999; see Paschal 1874:1364). To receive such special consideration Indians must prove that they and their ancestors: (1) held no tribal affiliation, (2) had been Spanish subjects or practicing Mexican citizens (e.g., voted, ran for office, practiced the holy Catholic sacraments), (3) spoke Spanish, and (4) (if they were former mission Indians) had passed a two-year secularization probationary period where they were observed to have practiced Mexican traditions (McMullen v. Hodge and Others, 1849:43, 46–47, 82–83, 85–86). Indeed this was a liberal ruling; but, sadly, the Texas General Land Office has no records of Christian Indians having been issued land grants in Texas. McMullen v. Hodge and Others came too late: the mission lands had already been appropriated by others, and this legal infrastructure could not be used by Indians choosing to become U.S. citizens.
Though detribalized Indians received some political rights under U.S. law, such opportunities were not extended to tribal Indians. By the early 1860s most nomadic Indians had been exterminated, and those who survived were placed on reservations or were driven into Mexico (Newcomb 1986:357–360). The Apaches and Karankawas were pushed into Mexico, and the Comanches and Wichitas were placed on Oklahoma reservations (Alonso 1995; Chalfant 1991; Weber 1982). Most of the Caddo Indians were exterminated; those who survived either migrated toward Mexico or moved to reservations outside of Texas.
Only two Indian communities with tribal governments were allowed to remain in Texas, although they were not included among the Indians who could apply for U.S. citizenship. These peoples were the Tiwa of Ysleta in El Paso Valley and the Alabama-Coushatta of northeastern Texas. The area where the Ysleta Indians lived became Texas territory in 1850, two years after the Mexican American War, when the U.S. government acquired El Paso Valley and gave this region to Texas (Metz 1994:33). These two Indian peoples were not driven out because agents of the Bureau of Indian affairs and influential Anglo-American citizens recommended to the state legislature that they not be removed (Bowden 1971; Minter 1993). BIA agents advocated that the people of Ysleta be left alone because in tradition and customs they were Mexican (Fewkes 1902; Stallings 1932). The agents did not recommend they be given citizenship, however, because they refused to relinquish their tribal government. The Alabama-Coushatta had lived in Texas since 1804 and had established several communities under Mexican rule (Minter 1993:50). They had petitioned for Mexican land grants, but did not receive patents because the Texas War of Independence broke out and interrupted the process. Under the Republic of Texas they were removed from their homes, but were not forced to leave Texas. Finally, in 1846, they enacted a treaty with the U.S. government and were subsequently rounded up and placed on two reservations within the state (ibid., 4).
In the case of people of Black descent, Texas was not very kind. Most decisions pertaining to afromestizos who were Mexican citizens and to Blacks who had immigrated to Texas from the United States were made after Texas’s independence and were later ratified by the U.S. government upon annexation. Texas endorsed the practice of slavery as a Republic and later joined the Union as a slave state. The size of the slave population grew enormously, from 2,000 in 1830 to 58,161 in 1850 and to the astounding size of 182,566 by 1860 (Schwartz 1975:27; U.S. Census 1854:160; U.S. Census 1864:486). After independence, people of Black descent were not recognized as part of the Mexican population, who had the right to become citizens of the new Republic (Constitution of the Republic of Texas, Article 6, Sec. 10, cited in Laws of Texas, Vol. 2, p. 1079). Exacerbating matters, on 5 February 1840 the Senate and House of Representatives of the Republic of Texas gave people of Black descent the dubious choice of remaining in Texas and becoming slaves or being deported to Mexico if they wished to remain free (see Schoen 1937b:267). The 1840 act was consistent with the proslavery position adopted in Texas (Schwartz 1975).
Free Blacks, including former Mexican citizens, immediately fought against their deportation and mobilized by asking their White friends and business partners to appeal the act. Legislators received numerous petitions from influential Texans asking Congress to make exemptions for free Black families of good character. Those who lobbied in behalf of free Blacks proposed that hundreds of Black families were racially mixed and for generations had lived prudent and enterprising lives. The most effective lobbying effort was launched by wealthy cattleman Aaron Ashworth, who had become a prosperous rancher during Mexican rule and had fought on the side of the Republic during Texas’s war for independence. Aaron and his family were less than one-fourth Black, and many of the family men were married to White women (Block 1976; Williams 1998). Taking into consideration Aaron Ashworth’s loyalty, the Texas Congress developed the legal infrastructure to exempt some Blacks from deportation (Schoen 1937a). On 12 December 1840 it ruled that some Blacks would be exempt from deportation through the passage of special enabling acts. An “Act for the Relief of Certain Free Persons of Color,” commonly referred to as the “Ashworth Law,” became the first enabling act protecting free Black people from deportation (Act for the Relief of Certain Free Persons of Color, 12 December 1840, cited in Laws of Texas Supplement, 1822–1897, p. 549). For Blacks to be eligible for such consideration they had to prove that during Spanish and Mexican rule they had never been slaves (Schoen 1937b:277).
Although Ashworth’s Law was certainly progressive, it did not suspend the Republic’s deportation orders. On the contrary, the Texas Congress subsequently reduced the amount of time Blacks were given to prove they were free and gave anyone the right to question the status of a free Black person (Schoen 1937b:284–285). Black people had ten days to prove they were free, rather than the two-year period they had initially been given under the original act of deportation. If unable to obtain proof, such a person could be sold into slavery or required to leave Texas under penalty of law.
Though it is uncertain how many Blacks were deported or converted into slaves, we do know that Mexico took the threat seriously and responded by granting land to families who were deported from the United States (Schwartz 1975). We also know of one horrific case so massive in scope that it could not be hidden from public records. Ironically, the account concerns the Ashworth family, the individuals for whom the legislature made the “special exemption law.”
The Ashworth family arrived in Texas between 1831 and 1834 (Block 1976:94). The patriarchs of the family were Aaron, William, Joshua, and Abner. Racially some of the family members were at most “quadroons” or one-fourth Black. All of the brothers were married to White women, or at least their wives appeared to be White. The family settled in empresario Lorenzo de Zavala’s colony, near the outskirts of an Orcoquisac Indian village, in present-day Madison in Jefferson County. The Ashworths were part of a group of immigrant Black families joining Zavala’s colony. One of the brothers, Aaron Ashworth, became a successful cattleman and the wealthiest person in the county (Jackson 1986:607). He owned large tracts of land on which he grazed over 3,000 cattle. His cattle and property alone were worth over thirty thousand dollars. His other relatives were also economically successful. After Texas became a Republic, Aaron and his relatives were exempt from the deportation orders. Unfortunately, several years later many of his White neighbors were not as liberal or sympathetic as the Texas Congress had been.
One tragic day, on 15 May 1856, the good fortune of the Ashworth family was cruelly reversed (Block 1979:11). Samuel Ashworth, a nephew of Aaron, became embroiled in a fistfight with William Blake, a White man. Witnesses accused Samuel of using abusive language against Blake, which was against the law. In those days Blacks in Texas were not allowed to insult White folks. Samuel was immediately arrested, taken to jail, fined, and given thirty lashes (Block 1979). News of the event spread and agitated many White people. Samuel’s neighbors began talking and concurred that the Ashworth clan were a bunch of arrogant troublemakers. A mob of White folks decided to take action. That night a meeting was called for White people from Jefferson and Orange counties. They met outside the jail where Samuel had been detained. In the meantime, one of Samuel’s cousins had helped him break out of jail. Samuel fled to the hills and sought shelter among some Indians. When the angry mob had everything ready to lynch Samuel, they entered the jail and found an empty cell. Frustrated at the perceived social injustice, they decided to seek revenge by forcing all Black people from Orange and Jefferson counties to leave. That night White men went into the homes of Black people and ordered them to leave within twenty-four hours or suffer repercussions (ibid.). Taking the threat seriously, Black people assembled as much property as they could carry in their wagons and within a few hours organized several caravans. Some took a northern route toward Louisiana, while others journeyed south in the direction of the U.S.-Mexican border.
A few months later Samuel Ashworth, accompanied by Indians, boldly resurfaced in Madison. Oddly, no one attempted to lynch or arrest Samuel for his alleged crimes or for the added charge that he had possibly killed a deputy (Block 1979). Samuel found no family members and returned to the hills, where he had started a new life among the Choctaw Indians. Two other members of the Ashworth family also returned to Madison, only to find that White folks were living in their homes and had appropriated their cattle (Jackson 1986). Not much is known about the further welfare of the Ashworth family, except that Samuel stayed among the Indians and during the U.S. Civil War resurfaced as a Union soldier. William Ashworth, who had been a wealthy man, returned to Jefferson County and was not enslaved, but was reduced to being a day laborer for those people who at one time had been his neighbors. It is uncertain why he returned to lead a destitute life.
Now I ponder: was this an isolated incident? Probably not; it was merely a major event that could not be hidden. We know that Ashworth’s Law did not protect those it was designed to help. We are certain that wealth did not protect the Ashworths; on the contrary, their prosperity became a source of envy and resentment. We are also certain that Blacks in Texas, like the Ashworths, lost their Mexican land grants.
Article 8 of the Treaty of Guadalupe Hidalgo was designed to protect the property belonging to Mexicans in New Mexico, California, Arizona, and parts of Texas:
Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States, shall be free to continue where they now reside … retaining the property which they possess in the said territories …property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States. (Treaty of Guadalupe Hidalgo, Article 8, in Nine U.S. Statutes at Large and Treaties of the United States of America, 1845–1851, pp. 929–930)
Unfortunately, though the treaty guaranteed the property rights of all Mexicans, the new sovereign power chose to violate its agreement. The U.S. Congress held the power to interpret Article 8 and chose to deny Mexican Indians U.S. citizenship. Under this interpretation, Congress had the power to draft land policy for Mexican Indians because it had obtained this authority under the Northwest Ordinance of 1787, and this right was later expanded in subsequent Indian Intercourse Acts and Federal Supreme Court rulings (Johnson v. McIntosh, 1823; Minter 1993; United States v. Rogers, 1846). Under the Northwest Ordinance, Congress had ruled that Indians did not own the land they inhabited and extinguished all their property rights. Congress, however, took on responsibility to ensure that Indians lived on reservations or had a place to live. On reservations it had the option to give Indians a patent or sole occupancy rights. Thus, after the Mexican American War, Congress held full authority to validate or extinguish all land grant agreements that Spain and Mexico had made with Mexican Indians, including the mission Indians.
In the area of land policy mestizos and people of Black descent were also affected by racially prejudicial federal and state policies. Each state and territory passed different types of property laws, which affected people of color in diverse ways. Likewise, state and territorial legislatures had the freedom to interpret federal property laws according to their political views. The racialized category of Mexicans highly influenced whether people could validate their claims and whether they could enjoy the benefits of other state or territorial property laws.
Congress did pass one land act that affected all people of color in a similar way. Under the Homestead Act of 1862 Congress allowed homesteaders throughout the United States to claim 162 acres of public lands (Twelve Statutes at Large, Treaties, and Proclamations of the United States of America, 1859–1863, Chap. 75, pp. 392–39). In the Southwest there was plenty of land available, because vast tracts of land had not been colonized by Mexicans and property inhabited by Indians was declared public and eligible for distribution. Congress required the petitioner to be a citizen of the United States or an immigrant eligible for naturalization, however. This stipulation, though appearing to be “race neutral,” was not and disqualified a large number of Mexicans. In California and Arizona the Homestead Act discriminated against native-born Mexicans, since both states restricted citizenship to Whites. At the national level only free White immigrants were eligible to become citizens in those days, so many Mexican immigrants of color were disqualified (Naturalization Act of 1790, Chap. 3, Sec. 1; Naturalization Act of 1795, Chap. 20, Stat. 2, Sec. 1; Naturalization Act of 1802, Chap. 28, Stat. 1).4 Sadly, all racial restrictions prohibiting non-White Mexicans from obtaining citizenship were not removed until 1898 (see Chapter 9; In re Rodriguez, 1897; U.S. v. Wong Kim Ark, 1898).
In 1878 Seymour D. Thompson asserted in his classic study A Treatise on Homestead and Exemption Laws that when Congress drafted the Homestead Act of 1862 it only envisioned Whites as its beneficiaries. Its intent was to create and preserve a free White citizenry, independent from landlords:
Accordingly we find that the benefits of most of the exemption laws of those states were limited to free white persons. Under such a statute, defining the person entitled to the benefit of the homestead exemption as “a free White citizen of this state,” it was presumed in the absence of countervailing proof, that the person claiming the exemption was a person of this description. (Thompson 1878:83)
Thompson did qualify his critique and argued that in 1878 a few legal theorists like himself were in the process of developing arguments to extend the Homestead Act to non-Whites. Later, historians Douglas Monroy (1990) and Herbert Brayer (1949), among others, concurred with Thompson and added that the Homestead Act was largely developed to populate the Southwest with White settlers. The intent of the act was not to allot land to the native populations. The Homestead Act of 1862 remained in effect until 1889 (Twenty-five Statutes at Large, Treaties, and Proclamations of the United States of America, 1887–1889, Chap. 381, Sec. 1, p. 854).
People of Black descent were discriminated against by other land policies besides the Homestead Act. Their racialized category also nullified their opportunity to claim land in New Mexico and Texas. These accounts are discussed in the next section, which examines how Mexicans fared in the land-grant confirmation process of each state and territory. For now I must qualify my critique by acknowledging that in some cases the U.S. Congress and state legislatures passed special enabling acts to exempt people from the country’s property laws. The exemptions clearly reflect the liberal racial views held by some representatives and state legislators. In many cases, officials and judges argued in favor of allowing all Mexicans to keep their homes.
Furthermore, based on U.S. property records, it is clear that many Mexicans had their land grants confirmed, indicating that Congress upheld the Treaty of Guadalupe Hidalgo in many cases. That is, a person had the opportunity to validate a claim as long as s/he was considered to be part of the people protected by the treaty and was able to complete all congressional stipulations. Under congressional orders all eligible claimants were to present to the regional land surveyor’s office a petition accompanied by corroborating evidence (see Bowden 1971; Van Ness 1976). A deed was the best method of proving ownership. If a deed was lost, ownership could be proven by presenting a survey approved by a Mexican official or by submitting a certified copy of the deed and proving it was on file in a Mexican or Spanish government land office. A claimant was also responsible for proving that the land had been continuously occupied by the grantees, heirs, or tenants; otherwise the grant would be considered abandoned. Only land vacated as a result of Indian raids did not have to be continuously occupied. As part of the petition, the claimant also had to submit a current survey conducted by an authorized U.S. surveyor and to fulfill the specific requirements of each state and territory. Once all requirements were met, the regional land office assessed the petition and offered a recommendation. The report was submitted to the General Land Surveyor Office, which in turn prepared another report to Congress. Congress then approved or rejected the petitions.
If a petition did not reach Congress because it was rejected by the regional office, a claimant could appeal to the judicial branch of government and possibly have to follow the case until it reached the U.S. Supreme Court. Mexicans who could complete this procedure were assured a patent. By 1891 thousands of cases were still pending, so Congress established the Court of Private Land Claims. Claimants were to take their petitions or appeals directly to the court. Any land grant not confirmed became the property of the federal government (Van Ness and Van Ness 1980).
In Texas the confirmation of the Spanish and Mexican land grants began in 1836 under the Constitution of the Republic of Texas and proceeded after the Mexican American War. During the Republic, Article 6 of the constitution decreed that all persons residing in Texas on the day of the declaration of independence were entitled to the land they occupied and would be granted property if they did not possess any. This decree, however, exempted Indians and Black people. Article 6 stipulated:
All persons (Africans, the descendants of Africans, and Indians excepted) who were residing in Texas on the day of declaration of Independence, shall be considered citizens of the republic, and entitled to all privileges of such. All citizens now living in Texas, who have not received their portion of land, in like manner as colonists, shall be entitled to their land. (Constitution of the Republic of Texas, 1836, Article 6, Sec. 6, cited in Laws of Texas, Vol. 2, p. 1079)
After the decree was issued, an “Act to Establish a Land Office for the Republic of Texas” was passed in 1838 (Act of 1838, Sec. 21, cited in Laws of Texas, Vol. 1, p. 1276). Its purpose was to confirm or reject the land claims issued under Spanish and Mexican rule. It was in the congressmen’s best interest to develop an infrastructure to validate the Mexican land grants that they and other Anglo Americans had received quickly and with deliberate speed. To confirm a land grant, a person needed to have a deed or a survey or to have had the claim registered by the Mexican government. The Texas General Land Office reviewed the claims pertaining to the internal provinces, a term used for those regions obtaining independence in 1836. The final decision was rendered by the Republic’s congressmen. Landless people could claim public land as long as they were not Black or Indian.
After the United States annexed Texas and replaced the Republic’s congressional structure with a state legislature, special commissions were established by the legislature to review new claims (Bowden 1971). This became a very important task, because in 1850 the U.S. Congress gave Texas jurisdiction over El Paso Valley and present South Texas (Metz 1994:33). The state legislature was given full authority to interpret Article 8 of the Treaty of Guadalupe Hidalgo. Legislators did not need congressional approval for any decision pertaining to property. When the Republic of Texas joined the Union, the U.S. Congress gave the Texas legislature control over public land and the confirmation of land grants acquired after the Mexican American War—a unique privilege not extended to the other southwestern states and territories. Congress only retained authority over federal land reserves used for national defense. To verify a Spanish or Mexican grant in Texas, people followed a procedure similar to the practice prior to annexation.
Though the application procedure throughout Texas’s history appears to have been fair, for many Mexicans of color it was an ordeal, particularly in the case of Black people and Indians. After the Republic of Texas nullified the land grants belonging to Blacks, later verification of claims under U.S. occupation was a moot point because Blacks had already been dispossessed of their land. Only nine Black men are known to have received an exemption, and this occurred during the Republic (if others did validate their claims, they were not identifiably Black). The men were Emmanuel J. Hardin, Robert Thompson, James Richardson, Samuel McMullen, John T. Weber, Greenborg Logan, Levi Jones, Samuel Hardin, and Hendrick Arnold (Texas General Land Office, file “Afro-Americans in Austin’s Colony”). Apparently, all of these men were part of Stephen Austin’s colony and obtained their grants under Mexico’s 1824 General Colonization Law. They were issued deeds as a reward for their military services during the Texas War of Independence. With the exception of Greenborg Logan, who was a successful Mexican immigrant, very little is known about the men.
Logan immigrated to Texas in 1831 and settled in present Brazoria County, in the region known as “Chocolate Bayou” (ibid.).5 This area was part of one of Stephen Austin’s colonies. Though Austin was very generous in allowing Blacks to join his colonies, he only gave them one-quarter of the land traditionally allocated to other settlers. During the Texas War of Independence, Logan fought on the side of the rebels, only to find afterward that his land rights were rescinded. On his behalf, twenty-three prominent Anglo-Texans petitioned Congress to exempt him from the Republic’s property law. On 21 June 1838 his petition was endorsed. His Mexican land grant, however, was not reinstated; instead he was issued a “Donation Certificate” (a special homestead) for 640 acres and a bounty grant for 320 acres (a land grant for military service). His new grants were located in present Brower and Callahan counties. Indeed, Logan was compensated quite well for his participation during the war of independence.
Besides the Black men who fought on the side of the rebels, there is one other account of a Black person owning property after independence. William Goyen did not retain his Mexican land grant, yet he was able to protect the land he had purchased. Goyen was a Mexican citizen who moved to Texas during the Spanish period; upon Mexican independence he was part of the population declared a citizen. The Goyen case illustrates that a Black person who had not been deported after independence and had purchased property had a better opportunity to keep it. Of course, the property owner had to have the means to have the case litigated. William Goyen was a successful businessman who settled in Nacogdoches in 1820 (New Handbook of Texas History 1996:296). He was a free Black immigrant from Moore County, North Carolina. Goyen became an important citizen of Nacogdoches. He acted as a conciliator in local lawsuits and during Mexican rule was appointed as agent of Indian affairs. Goyen was also a successful blacksmith, wagon maker, and businessman. He often traveled to Louisiana to trade merchandise. During Mexican rule, he married Patty Sibley, a White settler.
After Texas obtained independence, Goyen was unable to confirm his grant, yet he was able to validate the property he had purchased four miles west of Nacogdoches. This site came to be known as Goyen’s Hill. There he built a large two-floor mansion and expanded his business to include a sawmill and gristmill. His remarkable success infuriated many White neighbors. Despite their continuous efforts to take Goyen’s Hill, they lost all court battles. To protect his rights, Goyen employed the best attorneys in Nacogdoches, including Thomas J. Rusk and Charles S. Taylor. He retained his property on the basis that it had been purchased.6 In those days Blacks and detribalized Indians could own property if they had bought it. Goyen died on 20 June 1856 and was buried at Aylitos Creek. His case illustrates that wealthy Black people did have a chance to retain their property if they had influential friends and the money to litigate a costly case. Even then, however, not all wealthy Black people kept their property. We must remember the Ashworth incident, when Black people in Orange and Jefferson counties were forced to leave Texas (Block 1979; Jackson 1986). The wealth and influence of the Ashworth family was insufficient to control the anger of a White mob determined to dispossess Black people of the property that they deemed rightly belonged to them.
Most Indians, like Black people, lost their homes and property after Texas’s independence. As previously noted, Indians in Texas who had not been under the governance of Mexico were chased out or exterminated; if they tried to remain in Texas, they were rounded up and placed on federal Indian reservations in Oklahoma (Chalfant 1991; Newcomb 1986). Only detribalized Indians were allowed to live among Mexicans and White people as well as in two tribal Indian communities. After Texas’s annexation, the state supreme court theoretically developed the legal infrastructure for Indians to claim mission lands under McMullen v. Hodge and Others in 1849, but the ruling did not benefit any Indian. It was a moot point, because mission lands were already occupied. The Texas General Land Office has no record of any private land claim being awarded to Christian Indians, including the fourteen families from Mission Espada who had held Mexican deeds (see Chapter 7; TGLO-SMTT; Texas General Land Office 1988).7
Though Indians lost their land after Texas’s independence, partial exceptions were made in the case of two federally recognized Indian communities, the Tiwa of Ysleta and the Alabama-Coushatta. As noted, because both peoples were recognized to be peaceful they were spared their lives and allowed to remain in Texas. During Texan rule, the Alabama-Coushatta were not removed as a result of Sam Houston’s appeals to Congress (Minter 1993). Houston argued that the Alabama-Coushatta had proven to be law-abiding people by complying with the laws of Spain and Mexico. They also had shown their loyalty to the Republic by assisting the military to capture hostile Indians. In 1865 the Texas legislature finally gave them a 263-acre reservation, and they became the only tribe in Texas given such a privilege (ibid., 5). Prior to that date they were shifted from one place to another; wherever they were relocated, they were soon forced to leave.
The Tiwa Indians of Ysleta were the second group to be given some property. Their land tenure history helps to explain why they received a partial exemption (Metz 1994:33). Ysleta is located ten miles outside the city limits of present El Paso, and the residents have retained a tribal government to this day. Under Spanish rule the people of Ysleta received a land grant of approximately 4,000 acres to establish a town consisting of civic buildings, house lots, and a communal zone designated for small family gardens (Bowden 1971:141). Under Mexican rule the grant was confirmed and additional acreage was awarded to several families, where they established a communal ranch. In total the Tiwa of Ysleta owned over 17,712 acres (Metz 1994:14–15). After the Mexican American War, the U.S. federal government categorized the people of Ysleta as an Indian community and rescinded their land grant rights (Bowden 1971:171–175). They were allowed to remain in their homes, however. In 1850 the federal government gave the Texas legislature jurisdiction over Ysleta (Metz 1994:33). Four years later the legislature offered the opinion that the people of Ysleta were a bicultural people deserving some of the privileges extended to Mexicans and confirmed one of their grants. The township grant was confirmed, yet the land grant to the communal ranch was rejected.8 In the transaction over 11,000 acres were lost, which later were granted to the trustees of the Pacific Railway Company and to other prominent Anglo Americans with close connections to the legislature (Bowden 1971).
In 1871 Ysleta was incorporated as a town by the Texas legislature and its status as an Indian community dissolved (Minter 1993:25). The residents of Ysleta could not vote against the incorporation because as Indians they did not have the right to vote. The federal government could not intervene because it did not have jurisdiction over Texas. When Ysleta became a town, property boundaries were redrawn; anyone wishing to live there had the right to settle and claim land. Sadly, the Texas legislature did not set a limit on how much land one person could claim. It also did not require people who owned land in Ysleta to live there. Within months, most of Ysleta fell into the hands of a few Anglo Americans. Though the people of Ysleta lost most of their land, its members held on and retained a cohesive community. Within a few decades they were able to gain federal support to be reincorporated as an Indian town.
Ysleta is a prime example of how the racialization process affected bicultural Mexicans who were classified as Indian. Without the protection of the Treaty of Guadalupe Hidalgo, their chances to keep their land were minimal. If they had been granted citizenship, like other communities in El Paso Valley, they would have had a better opportunity to defend their land or at least to profit from holding a perfect land title. For example, the people of Socorro shared a similar bicultural Mexican-Indian heritage. They were of partial Piro, Tano, and Jemez descent. Like the people of Ysleta, they obtained a Spanish land grant and later became secularized Indians (Bowden 1971:151–154; Metz 1994). Unlike the people of Ysleta, they were classified as Mexican citizens by the Bureau of Indian Affairs. In 1858 the Texas legislature upheld the Treaty of Guadalupe Hidalgo and confirmed Socorro’s land grants (Bowden 1971). Thus, the people of Socorro, by not being categorized as Indians, fared better under U.S. occupation. Like other Mexicans throughout Texas, however, many people in Socorro eventually lost their property. After assessing the financial problems of litigating their cases, many Mexicans chose to sell their land grants, rather than pursue cases which they could potentially lose. They did at least profit financially from holding perfect land titles.
Mexicans fared well in the land confirmation process in comparison with people categorized as Black and Indian. Mexicans submitted 1,157 claims for review (Bowden 1971; Texas General Land Office 1988; TGLO-SMTT). Of these claims, 896 (77.4 percent) were confirmed and 261 (22.5 percent) were rejected or withdrawn by the applicants. The acceptance rate is comparatively lower than for Anglo Americans, yet it remains impressively high. Out of 3,420 claims submitted by Anglo Americans, 2,932 were confirmed, an acceptance rate of 85.7 percent (TGLO-SMTT). In addition to these grants, Mexicans and Anglo Americans acquired land through other means. During Texas’s stage as a Republic, congressmen confirmed the town charters of five towns established during the Spanish and Mexican periods. San Felipe (Austin), Liberty, San Patricio, Victoria, and San Antonio were recertified as towns (TGLO-SMTT; Act of 4 December 1837, cited in Lewis v. San Antonio, 1851:289–291). Each town was given title to the vacant and unappropriated land within its boundaries. The town government held title in trust for the inhabitants. Because land was entrusted to the local officials, however, they had the power to retain or redraw new boundaries dividing house lots. Only if residents previously had been issued title to a lot was their property outside the legal jurisdiction of the town assembly. Many disputes between residents and town assemblies soon followed and had to be settled in the courts (see Lewis v. San Antonio, 1851:288).
After Texas was annexed to the United States, the town charters of Laredo, Ysleta, Socorro, and San Elizario were recertified and many residents were allowed to keep their house lots (Bowden 1971; “An Act to Quiet the Land Titles in the Towns of Socorro, Ysleta, and San Elizario,” 2 April 1889, Chap. 16, cited in the Laws of Texas Supplement, 1822–1897, pp. 1371–1372; Texas General Land Office 1988). To this date a study has not been conducted on the ethnic breakdown of the subdivision of the town lots. We are uncertain whether all Mexicans were treated the same and whether Blacks and detribalized Indians were also given town lots. This is an important issue because in San Elizario during Mexican rule over 1,200 Apaches became Mexican citizens (Hendricks and Timmons 1998:50–59).
Moreover, a regional breakdown of the land grants indicates that Mexicans fared differently depending on where they lived in Texas. The petitions submitted by Mexicans in South Texas were confirmed at the astonishing rate of 89.2 percent, since 364 claims were submitted and 325 confirmed (Texas General Land Office 1988). In contrast, Mexicans in El Paso Valley experienced the highest rejection rate: 8 applications out of 14 submitted (57 percent) were rejected (Bowden 1971; Metz 1994). Only a few petitions were submitted because most grants were communal and each petition represented a group of claimants. This extremely high rejection rate was uncommon in the rest of the state. The high rejection rate in El Paso Valley is related to the way the Texas legislature interpreted the Treaty of Guadalupe Hidalgo. Legislators agreed that the treaty would be respected; however, they also concurred that grants issued by Mexico between 1836 and 1847 were invalid. The legislators believed that following Texas independence El Paso Valley rightfully belonged to them (Bowden 1971). Fortunately, only private land grants were affected by the ruling, as the communal grants were issued prior to Texas independence.
In the internal provinces, the regions north of the Nueces River, 565 of the 779 Mexican land grants reviewed were confirmed and 214 rejected, a 72.5 percent validation rate (TGLO-SMTT). The regions with the highest rejection rates in the internal provinces were present Liberty, Jefferson, and Nacogdoches counties, areas with a history of being settled by Blacks. Paradoxically, it is astonishing that prominent residents of Nacogdoches such as former Mexican mayors and justices of the peace like Domingo Y’Barbo, José Y’Barbo, and José Caró did not receive land grants (Nacogdoches Archives, Boxes 2Q307, 2Q306, 2Q301, 2Q299, Center for American History collection; cf. TGLO-SMTT; Texas General Land Office 1988). They were native residents of Nacogdoches and had lived there before the U.S. occupation.
Furthermore, the Spanish and Mexican land grants on the northern border of Nacogdoches were void by a special act passed by the Republic’s congressmen (Act of 9 January 1841, cited in Laws of Texas, Vol. 2, p. 641). The Act of 9 January 1841 eliminated peoples’ land rights unless their appeal was reversed within a year after the act’s passage.
Alan Minter (1993), former Texas assistant attorney general, concludes that the confirmation rate for Mexican grantees was quite high. He contends, however, that a bleaker picture emerges if we look at the total acreage rather than the number of grants. In total 17 million acres (10 million based on Spanish land grants and 7 million on Mexican land grants) were claimed by Mexicans and Anglo Americans (ibid., 36). All Spanish land grants were held by Mexicans, and most of these grants were rejected. Excluding South Texas, most Spanish land grants were converted to vacant or unappropriated land. Minter posits that a large part of the rejected acreage was also occupied by Indians, such as the people of Ysleta and the Alabama-Coushatta.
Minter’s analysis is supported by an 1852 study conducted by the Mexican government’s General Commission for U.S.-Mexico Relations, entitled “Agencia mexicana ante la comisión general de reclamaciones entre México y Los Estados Unidos—Reclamaciones mexicanas.” Mexican officials found that 440 Mexicans had complained that their grant applications had been withdrawn or not allowed for submission and a few had been rejected (cited in Garza 1980:13).9 The complaints came from throughout the state, with the highest number from Nacogdoches, Goliad, Liberty, Travis, Nueces, Starr, Cameron, and Reynosa counties. El Paso Valley was not surveyed in the study. Why so many people were not allowed to participate in or complete the land grant process is uncertain. We do not know if the Texas Land Office or the special land commissions reviewing the petitions asked people to withdraw their applications or if the grantees did so voluntarily.10 We can only hypothesize that some of the complaints may have been related to the laws prohibiting Blacks and Indians from owning property. Another explanation may be the international border laws passed by the Republic. The Act of 9 January 1841 decreed all grants located within twenty leagues of the Republic’s northern border void (Laws of Texas, Vol. 2, p. 641). This explanation is plausible but dubious, since many Anglo-American settlers obtained exemptions from this law. Though it is uncertain what actually happened after the Mexican government presented its complaint, many Mexicans did obtain patents, and there is no account of entire Mexican communities being uprooted and chased out of Texas as in the case of the Ashworth family and their neighbors.
On the contrary, after Texas was annexed by the U.S. government in 1853 the Texas State Supreme Court passed a ruling prohibiting anyone from treating Mexicans in the same way the Ashworth extended family was mistreated. Under Cook v. Garza (1853), the state supreme court justices ruled that only the U.S. government could deny Mexicans their property rights and that no person had the right to force Mexicans to vacate their homes. Once again we see a progressive position taken by Anglo Americans.
The Texas Supreme Court justices ruled that Cook and his friends acted illegally when they intimidated and forcibly evicted Mrs. de la Garza and her infant from their home. The problem began in 1853, in the town of Victoria, when William Cook and the Harper boys told Antonio de la Garza to abandon his ranch and turn over all of his belongings. Mr. de la Garza owned a ranch, a cow pen, and household furnishings. In court Cook alleged that de la Garza had agreed to do as he was told; therefore when he and the Harper boys entered the premises they were merely carrying out the oral agreement. De la Garza denied he had made such a ludicrous agreement. He did concede that Cook made several visits and without using violence told his family to leave the ranch. The court clerk descriptively transcribed the proceedings and noted: “It was in evidence that defendant Cook, in company with others, went to the house of the plaintiff, and asked him if he would give him possession; to which the plaintiff replied he would not” (Cook v. Garza, 1853:359).
Dissatisfied with the de la Garza family’s response, Cook waited until the ranch was left unprotected. One night Mr. de la Garza took a trip. Cook and his friends immediately took advantage of the situation, trespassed onto the ranch, walked into the house, and began removing property. Mrs. de la Garza tried to stop them, but was physically and violently restrained. She was unable to fight back because she was trying to protect her infant son. The court reporter described the shameful scene:
The defendant [Cook] … returned in the evening with the witness and the three Harpers. The plaintiff being absent, they requested his wife to go out of the house; which she refused to do. They then removed the furniture and effects, which were in the house, into the yard. Cook and one of the Harpers then took hold of the plaintiff’s wife, each taking her by an arm, and led her out of the house; she having an infant in her arms and resisting. They then pulled down one side and end of the house; they also pulled down the cattle pen and let out the cattle. The house and cow pen were of little value. The Harpers remained in possession for a time …. (Cook v. Garza, 1853:359–360)
When Antonio de la Garza returned to Victoria, he sought help from the local law authorities; together they forced the Harpers to vacate his house. The dispute entered the courts, reaching the Texas Supreme Court. The justices clearly ruled in favor of Antonio de la Garza and admonished Cook and the Harpers for their cowardly behavior toward Mrs. de la Garza. Cook asked for a retrial and a change of venue on the grounds that the justices were swayed by the Mexican community’s outcry for vengeance. His request was denied. In sum, the de la Garza case is an important ruling; however, it is also a commentary on Mexican-Anglo relations in Texas. How frequent were events of this kind, and why was it necessary for the courts to admonish such behavior and warn White people to leave Mexicans alone? Indeed this ruling evokes a bleak picture of Texas regarding disputes over property. Sadly, this was not an isolated incident: in Santa Paula Water Works et al. v. Julio Peralta (1896) the California State Supreme Court had to issue a similar warning to Anglo Americans.
Land policies in New Mexico followed a similar allocation process as in Texas. Indians, Black people, and those classified as Mexican came under separate land policy confirmation processes. Genizaros were classified as Mexicans rather than Pueblo Indians, and their villages came under the property laws affecting Mexicans (see Brayer 1949; Leonard 1943).11 In New Mexico Indians fared better in the land grant confirmation process than other Mexican groups. They were protected by a unique judicial interpretation of the Treaty of Guadalupe Hidalgo and by federal and state laws. Blacks fared the worst. They were prohibited from living in New Mexico; thus their property rights became a moot point (Larson 1968). Mexicans also experienced devastating losses, as most did not possess private land grants and were unable to retain their farms. The best-case scenario was the experience of the Pueblo communities.
After the Mexican American War, the U.S. Congress did not break up the Pueblo villages and redistribute their lands. It instead commissioned the Bureau of Indian affairs to study their land tenure situation. In the meantime the New Mexico State Supreme Court offered an unprecedented opinion on Pueblo lands. In 1869, in United States v. Lucero, the justices ruled that Pueblo lands were protected by the Treaty of Guadalupe Hidalgo and prohibited homesteaders from filing claims. The court ruled that Indian wards were included as part of the population whose lands were protected by the Treaty of Guadalupe Hidalgo. This was an unusual opinion that was not replicated in any subsequent court ruling in the Southwest.
Pueblo lands were further protected by recommendations issued to U.S. Congress by the Bureau of Indian Affairs. Throughout the 1870s, the agents for New Mexico recommended against implementing the relocation policies contained in the Indian Intercourse Act of 1834 (Dale 1951:129–130). The bureau warned Congress that the Pueblo Indians were a civilized people; if placed on federal reservations they would join the 5,000 uncaptured Apaches roaming in New Mexico. It was advisable to leave the Pueblo communities alone and instead offer them federal protection as a means of avoiding Indian uprisings (Hall 1989). This was necessary to maintain territorial peace and thus generate the environment to attract Anglo-American colonists. Congress followed the recommendation of the BIA and treated Pueblo lands as “Indian Country”; though Congress reduced the amount of land, it protected the reserved land from homesteaders. The Pueblo Indians were not given title at this time, however. Sadly, such consideration was not extended to Apaches. Instead the War Department treated them as enemies of the state. By 1886 most Apaches had been killed, and those who survived sought refuge in Chihuahua, Mexico, or were removed from their homes and placed on reservations (Alonso 1995:132–144; Dale 1951:111, 116). Their former lands became open for homesteading or were converted into national forest reserves.
Apparently, the exceptional status given to the Pueblo Indians allowed them to remain on their land and thus ensured the growth of their communities. The BIA reported that for two generations following the Mexican American War the size of the Pueblo Indian population remained stable at approximately 40,000 (Dale 1951:58; Lamar 1966:92). Furthermore, because they were not restricted to the Indian villages, thousands chose to live in the Mexican towns as their ancestors had done for generations. In 1880 the Census Bureau reported that 9,772 Indians in New Mexico lived outside the Pueblo communities (U.S. Census 1882:379).
Though Pueblo lands came under congressional protection, a wealthy Anglo-American land speculator challenged federal law when he perceived his legal right to claim Indian lands to be thwarted by state and federal laws (Brayer 1949). Anthony Joseph was born in Taos, New Mexico, in 1846. He attended Webster College in Missouri and later returned to New Mexico, where he served in several local and territorial government posts, becoming a well-known politician, and was once elected to Congress. During his tenure as a politician, he became a land speculator (Brayer 1949). Joseph was a corporate real estate businessman speculating in the purchase of cheap property and reselling it for higher prices. His corporations advertised throughout the United States that cheap land was available in New Mexico. This news was used to attract thousands of settlers.
When Joseph challenged the Pueblo Indians’ property rights and attempted to lay claim to a parcel of their land in 1874, he was fined by government agents and evicted from Pueblo lands. He refused to pay the fine, and the dispute was finally resolved in court. He lost the trial at the territorial level (United States v. Joseph, 1874) but appealed to the U.S. Supreme Court. In United States v. Joseph (1876) he argued that the Pueblo Indians had no legal right to land in New Mexico because they were not U.S. citizens. The justices ruled that although the Pueblo Indians were not U.S. citizens their land was protected from homesteaders. Disillusioned with the outcome of the case, Joseph pursued his real estate plans by purchasing a large percentage of the Mexican land grants in the Chama Valley and in the genizaro community of Ojo Caliente (Brayer 1949). Attempts to strip most Pueblo Indians of their land were futile, because by 1886 the U.S. Congress had given nineteen of the twenty Pueblo villages ownership (Dale 1951:120).12
Federal interpretation of the communal land grant system had an adverse impact on the Mexican citizenry. After the Mexican American War, the U.S. Congress did not issue specific policies instructing Mexicans how they should validate their communal grants. People therefore assumed that as long as they held a deed or their land had been registered by the Mexican government the Treaty of Guadalupe Hidalgo protected their claim (Ebright 1980). Within a few years, Mexicans were alarmed when Congress announced that communal land grant patents did not necessarily constitute a valid claim. Only people whose names appeared in the original communal deed were recognized to hold a valid claim. Since most people in New Mexico did not have their names recorded, this meant that they needed to find alternate means of establishing ownership. Legal historian Malcolm Ebright (1980, 1991) and anthropologist John Van Ness (1976) propose that because communal ownership was an alien concept in U.S. law the government chose to treat communal lands as unappropriated public domain. The U.S. government claimed that Spain and Mexico had only given the grantees temporary occupation rights and had not issued all communal members ownership. Congress, therefore, had the right to evict most residents from public lands.
In 1854 the U.S. Congress established the Office of Surveyor General of New Mexico to investigate land grant claims and to offer recommendations to Congress (Rock 1976:55). The surveyor was to assess all claims meticulously and gather all possible documents that had been produced by Spain and Mexico. As part of the investigation he had to hold hearings, take testimony under oath, and collect and translate all documents. Congress allegedly instituted this very slow process because the communal grants were enormous and such a pace was necessary to investigate fraudulent claims.
Furthermore, before grantees could be issued title, the district and state courts had the responsibility of adjudicating overlapping claims and grantee disputes over titles. In 1855 Pino v. Hatch (cited in Rock 1976:56–59) became the first land grant case to reach the New Mexico Supreme Court and thus set the legal precedent followed in later decisions. Under Pino v. Hatch the justices reaffirmed Congress’s position that only people who were mentioned in the communal deeds or registries had the right to file a claim. The court also ruled that land was to be subdivided only among those who could prove ownership. Legal historian Michael Rock (1976:57) succinctly summarizes the court’s decision:
… the New Mexico Supreme Court has held that the interest the residents of a community land grant have in the common land of their grant vary [sic] according to the legal nature of the patentee …. The patentee could be an unincorporated association, a New Mexico corporation, or an individual.
Under this ruling, however, the court did provide an escape clause giving people in unique cases the opportunity to prove ownership. If people could prove they or their ancestors were members of a corporation mentioned in a deed (for example, when a deed was issued to a business association, a family corporation, or a corporate political group), this could be used to establish proof of inclusion.
While the land grant process followed a snail’s pace, many Anglo-American real estate investors arrived in New Mexico and took advantage of the situation. They correctly assessed the problem faced by the grantees—most people did not have funds to litigate a case or retrieve documents from Spain and Mexico. Investors such as Anthony Joseph and his corporate business partners proceeded to purchase grants from people that had a valid claim (Brayer 1949). Many farmers, distressed over their inability to obtain the needed documents, sold their portion of the grant rather than embarking upon a legal battle they would very likely lose. The investors gave the grantees a lump sum and in return obtained their interest in the grant. Often people negotiated the right to keep their house lots if their grant was confirmed. As part of the agreement, the grantees agreed to sell their grants at a low market value; in return for such a cheap price, the investors agreed not to sue the grantees if Congress rejected the claims. In pursuing a claim, investors had to pay for application fees, surveys, travel expenses, and the legal costs of arbitration until it reached Congress. Among the most active investors were English financier William Blackmore, politician Anthony Joseph, and land claim attorney Thomas Catron.
Between 1854 to 1870, 1,000 claims were submitted to the New Mexico surveyor general; 150 were recommended for confirmation, and only 71 were validated by Congress (Morrow 1923:25). Many of the successful claims were owned by investors. Though most grants were rejected on the basis that the claimant held only a communal land grant agreement, many private grants to individuals were also rejected under the suspicion that Mexican authorities had issued fraudulent documents (Ebright 1980:82). Sadly, neither the grantees nor their attorneys could dispute the decisions; only the government had access to the Spanish and Mexican archives, and it did not allow the grantees to review the documents. Usually, only wealthy individuals had the funds to search for corroborating documents in Spain or Mexico and thus challenge the government’s claim (ibid., 79; Rock 1976:56).
The people of New Mexico were once again adversely affected when the U.S. Congress restructured its procedures to validate land grant claims and established the Court of Private Land Claims in 1891 (Van Ness and Van Ness 1980:10). The court, composed of five judges, chose to employ the Congressional Act of 1873, which limited all communal land grants to 17,712 acres, regardless of the actual size of the grant issued by Spain or Mexico (Brayer 1949:334). As a case in point, the genizaro town of San Miguel del Vado was reduced from over 400,000 acres to 5,024 (Leonard 1943:39). The claimants retained only their house lots. Between 1891 and 1904 the court reviewed over 300 claims affecting New Mexico, California, and Arizona involving 34,653,340 acres; 32,718,354 acres were rejected, or over 94 percent, and the land fell under congressional control (Ebright 1980:82; Van Ness and Van Ness 1980:10).13 In New Mexico, at the closure of the court’s commission, only 126 grants had been validated, making a total of 197 grants confirmed in the history of New Mexico (see Engstrand 1978:329; cf. Van Ness and Van Ness 1980:10). Only 12 of these New Mexican grants were communal.
The communal lands appropriated by Congress came under the administration of the Bureau of Land Management. Mexicans, however, were allowed to buy their farms back; if they were unable to purchase them, they could lease part of the property if it had not been sold to someone else (Ebright 1980). Land that was not bought back was subsequently sold, issued to homesteaders, or converted into national forests. Why Mexicans in New Mexico did not use the Homestead Act of 1862 to reclaim their grant land is uncertain. A study on this theme has not been conducted. Exacerbating the ordeal of this displacement, people also lost lots in the towns because most of them did not hold deeds. Though most towns were recertified under U.S. occupation, the government only confirmed the lots where the civic buildings stood (Rock 1976:56). Most people consequently lost their homes.
In many cases the people who did have their land confirmed eventually lost it by the turn of the century through failure to pay property taxes. For example, the successful claimants from Mora, Antón Chico, and La Joya obtained congressional approval only to lose their parcels for failing to pay taxes (Knowlton 1991; Leonard 1943). The irony in the government’s action was that it had not required the families to pay taxes because their land rights were in question, yet once their titles were clear they were required to pay back taxes even if they had not been in control of their property.
The land displacement experienced by most Mexicans in New Mexico resulted in the conversion of small farmers into landless wage workers. By the late 1890s many found employment on the farms owned by Anglo Americans (Kutsche and Van Ness 1986). The newcomers had become the landed elite by purchasing land from real estate investors or acquiring it through congressional grants (Lamar 1966). Once the transfer of titles was complete, Anglo Americans established farms and offered employment to the now landless Mexican farmers. A new economic structure emerged in which the ruling class was predominantly White and Anglo American.
In Arizona the racialization of the population into distinct racial groups does not appear to have had a profound impact on the division of land, because there were only a handful of people eligible to apply for grant confirmation. It did not matter whether a person was White or not, since most people did not have the opportunity to file a claim. Racialization did affect people’s ability to claim land under the Homestead Act of 1862 (Twelve Statutes at Large, Treaties, and Proclamations of the United States of America 1859–1863, Chap. 75, Sec. 1, p. 392). The act disqualified people of color, because Arizona restricted citizenship to Whites (Menchaca 1993:589). The act also discriminated against immigrants of color, as in those days a person had to be White to become a naturalized citizen (Naturalization Act of 1790, Chap. 3, Sec. 1; Naturalization Act of 1795, Chap. 20, Stat. 2, Sec. 1; Naturalization Act of 1802, Chap. 28, Stat. 1).
The legal land restrictions placed upon Mexicans began in 1854 when the Gadsden Treaty was ratified (Tate 1969:43). Under Article 6 the United States government agreed to protect the land rights of the Mexican population; however, it only agreed to confirm tracts with legal titles. Article 6 clearly stipulated that occupancy was insufficient to claim ownership:
No grants of land within the territory ceded … bearing date subsequent to the day—twenty-fifth of September … will be considered valid or be recognized by the United States, or will any grants made previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico. (Gadsden Treaty, Article 6, cited in Tate 1969:40)
Article 6 effectively destroyed the land rights of most people in Arizona, except for a handful of elites who had acquired titles and surveyed their property (Mattison 1946). We do not know why the Mexican government accepted such an unjust provision and failed to include specific protectionist legislation in the Gadsden Treaty. What is certain is that Mexico abandoned its citizens and left them to negotiate their own futures, without creating legal policies that they could use to defend their homes and ranches.
After the purchase, the Mexican government acknowledged that Mexicans potentially could lose their homes if they were unable to fulfill treaty stipulations. In a half-hearted attempt to assist the Mexican population, Comandante Joaquín Comadurán was commissioned to certify and register property occupied by Mexican citizens. The registry would be archived in Mexico and a copy handed over to the United States government. The purpose of the registry was to create a legal document that could be used by Mexicans to support their land claims. Comadurán left Arizona in 1856, when all Mexican personnel were ordered to leave (Officer 1987:281–284). While in Tucson he certified surveys, registered sales transactions to generate deeds, and issued certificates of continuous occupancy when residents brought corroborating evidence, such as witnesses testifying that families had continuously occupied a tract. In any case, the Mexican government’s attempt to help its citizens appears today to have been a mockery; it was at best a futile attempt since the registrations occurred after 25 September 1853, the date when land grants and certificates issued by Mexico became void (Tate 1969:40).
Anglo-American settlers began migrating to southern Arizona immediately after the treaty was signed. Most pioneers were businessmen prepared to purchase land grant titles that could withstand a land commission review. A few Anglo-American families arrived at this time, most settling in Tucson. A military camp was also established in Tubac. The soldiers’ families eventually joined them, and within a few years Tubac became a lively Anglo-American settlement (Officer 1987). By 1870 thousands of Anglo Americans and European immigrants had arrived in Arizona; the state had nearly 10,000 residents, including the Mexican population (Lamar 1966:475; U.S. Census 1872:xvii).
To confirm the Spanish and Mexican land grants in Arizona, the U.S. Congress commissioned a surveyor general to investigate claims (Mattison 1946). In turn, local surveyors were hired to examine claims and arrive at decisions about both the extent and the validity of the purported grants. The surveyor general authored and submitted recommendations to the secretary of the interior, who prepared a report to Congress, where final decisions were rendered. Because Article 6 of the Gadsden Treaty stated that only land grants surveyed and issued title were eligible for consideration, the heirs of only fifteen of the sixteen grants issued by Spain and Mexico submitted petitions. The Tumacácori grant was not eligible for consideration because it had been issued to Indians and such grants were void (Mattison 1967; Johnson v. McIntosh, 1823). Within a few years the surveyor general rendered a favorable decision on thirteen cases and rejected two (Mattison 1946:290). Congress, however, delayed their confirmation for decades. By 1888 Congress had not confirmed a single grant. In the meantime, Anglo-American settlers arrived in large numbers and settled upon the grant lands (Officer 1987:293). This further delayed the confirmation process because grants could not be confirmed until all overlapping homestead claims were settled.
Due to congressional delays, thirteen of the grantee families sold their titles to Anglo-American investors. It was a wise decision, as the grants were enormous and the funds acquired from the transactions helped several families secure economic stability. Descendants of the Elías González family as well as the Otero, Robles, Carrillo, and Aro y Aguirre families negotiated successful contracts and were able to obtain sufficient funds to retain their elite status under U.S. occupation (Engstrand 1992: 275–276; cf. Mattison 1946). Congress finally rendered a decision on most of the grants by the turn of the twentieth century, after taking thirty-five to fifty years to resolve matters (Mattison 1946). Though the surveyor general approved thirteen grants, Congress confirmed only eight, containing 116,540 acres of the 837,680 acres under review (Mattison 1946:291; Officer 1987:293). It was a devastating economic loss for the investors, because two of the confirmed grants belonged to wealthy Mexican families.
Homesteaders also did quite well: when the Mexican grants were rejected, their overlapping claims could finally be approved by Congress. Moreover, eighty-one of the thousands of families who applied for land under the Homestead Act of 1862 were Mexican applicants (Soza 1994a: 13–14). Only thirty-one of them successfully completed all requirements and eventually obtained patents (ibid., 15–20). Why so few Mexicans obtained patents is uncertain.14
Though few Mexicans filed land claims, many families were able to retain their homes through other means. In 1862 Union army major David Ferguson registered the claims of 129 Mexican families from Tucson and several others living within a three-mile radius (Officer 1987:288). He also validated the claims of forty Anglo-American families who had recently settled in Tucson. The major did this to stop the ongoing violence between families disputing over property boundaries. This became the legal basis for families to take their claims to the surveyor general. Furthermore, in 1864, under the Compiled Laws of the Territory of Arizona (Chap. 47, Sec. 1, cited in Hoyt 1877:55), the territorial legislators ruled that settlements with a population of over 300 people would be incorporated as towns. Town boundaries would be settled by the state, and the responsibility for distributing house lots was entrusted to the local assemblies. Furthermore, in an unprecedented liberal stance congressmen decided in 1875 that Mexicans in Arizona who had become citizens under the Treaty of Guadalupe Hidalgo or the Gadsden Treaty and who were prohibited by U.S. property laws from obtaining patents to their town lots would be issued patents if they could prove continuous residence for twenty years (Eighteen United States Statutes at Large 1873–1875, Chap. 34, Sec. 1, p. 305). These were indeed liberal decisions, but once again it is uncertain how race and ethnicity affected the confirmation process, as a study on this theme has not been conducted.
Anthropologist James Officer (1987) suggests that it is likely that a large percentage of the Christian Indians faded into the Mexican population and obtained the political privileges of Mexican mestizos. For several generations after the Gadsden Purchase was ratified the military left the Christian Indians alone, so that they had the opportunity to assume a Mexican identity. Considering the politics of the period, Officer argues that it is likely that many Christian Indians passed as Mexican in public, in particular after the forced relocation policies began.
Historians Howard Lamar and Edward Dale offer corroborating arguments. Lamar (1966:187) states that by the mid-1870s, after the Apache no longer posed a major problem, the territorial government changed its policy toward all Indians. People who were identifiably Indian were placed on reservations by either force or inducement, and with few exceptions Indians were allowed to live among Anglo Americans and Mexicans. Dale (1951:117, 119) notes that only a few groups of Papagos and the Indians living near Mission San Xavier del Bac were allowed to live outside of the reservations. The 1890 census indicates that 28,469 Indians lived on reservations, while 1,512 lived among the colonists (U.S. Census 1894:41). Dale adds that to induce Indians to remain on the reservations, the government gradually gave them ownership of their lands; by 1887 most reservations were owned by Indians (Dale 1951:119). Such “generous” land policies were necessary because the non-Indian population had increased to 60,000 by 1890 and by popular opinion wanted them segregated (U.S. Census 1894:2). When Indians were placed on the reservations, their place of residence was fixed, and they were under the supervision of Indian agents and the military. Mexicans, however, did not have similar restrictions on their freedom of movement and often had the opportunity to keep their homes.
After the Mexican American War, Mexicans in California were racialized and placed in different legal categories in relation to property rights. Indians, with few exceptions, were allowed to keep their property, whereas Mexicans who were of White, mestizo, or Black descent were given the opportunity to file land petitions. Treating people of Black descent the same way as mestizos was a progressive ruling in accord with the antislavery position taken by California’s state government (California Constitution of 1849, Article 1, Sec. 1, p. 3). Mestizos and people of Black descent were discriminated against under federal law, however, because the Homestead Act of 1862 required citizenship, and in California people of color were not granted such a privilege. In spite of these problems, the property laws in California were relatively liberal, and most people who were not Indians could keep their homes. The worst-case scenario was the situation of the California Indians.
During the first years of U.S. occupation, the Indian population of California continued to decline steadily and quickly. In 1849 the U.S. War Department received orders from Congress to place Indians on reservations or exterminate them if they refused (Dale 1951:7). By 1853 the military had only been able to place a few thousand Indians on reservations; thousands of White settlers began to descend upon California, resulting in the massive destruction of Indian villages (Hurtado 1988:143). In 1850 there had been around 310,000 Indians; by 1855 they had declined to 50,000 and by 1870 to 29,025 (Cook 1976:44, 199; U.S. Census 1872:21). Of the surviving Indians in 1870, census enumerators estimated that 13,500 remained uncaptured, 5,784 had been placed on reservations, and 7,241 were living peacefully among Anglo and Mexican colonists (U.S. Census 1872:21).
Historical demographer Sherburne F. Cook (1976) proposes that the reduction of the Indian population is no doubt primarily based on the extermination campaigns. He argues that the loss in population of the Christian Indians is also related to their integration into the Mexican community, however. Christian Indians were not required to live on reservations, but being an Indian was still very dangerous, particularly after a series of property laws left most identifiable Christians Indians homeless (Acuña 1972; Haas 1995; Monroy 1990; Pitt 1970).
Some of the most convincing arguments have been presented by legal historian Chauncey S. Goodrich and anthropologists Robert F. Heizer and Alan F. Almquist, who point to state legislation as prime evidence. They argue that after most of the Indians living among the settlers lost their homes, the legal infrastructure was created to convert them into indentured slaves. Under California’s Act of 1850, commonly known as the Indentured Act, Indian vagrants and orphaned minors could be placed in indentured servitude (Goodrich 1926:93; see also Heizer and Almquist 1977:46–51). Indian paupers who committed any punishable offense could be placed in bondage. In 1860 the Indentured Act was amended: if an Anglo American lodged a complaint against the moral or public behavior of an Indian (that is, loitering, strolling, or begging) within twenty-four hours, that Indian could be placed in bondage and sold at auction (Goodrich 1926:94). Thus, the racialized category assigned to Christian Indians in California placed them in a legal position to become indentured servants—and this indeed was an incentive to assume a Mexican public identity. Many Indians probably did assume a Mexican identity, although it is difficult to determine how many did so. It is unlikely, however, that many nomadic Indians passed for Mexican, probably both because they had not acquired the cultural knowledge to hide their ethnicity and because they chose not to do so.
I certainly do not contend that most southwestern Indians passed for Mexican after U.S. occupation. Rather, I propose that many former mission and Christian ranchería Indians were pressured to change their public ethnic identity in order to avoid being killed, placed in bondage, reduced to paupers, or relocated to reservations. There was also a property incentive—Mexicans had the opportunity to submit land grant confirmation petitions, whereas Indians did not. Furthermore, acculturation may also be a factor in explaining why Christian Indians may have chosen a Mexican public identity in many cases. For centuries the Catholic Church and the governments of Spain and Mexico had pressured Indians to acculturate. This form of indigenous cultural erasure affected all Mexicans in the aftermath of the conquest, not only the mission and ranchería Indians (Borah 1983; Graham 1990). In the Southwest some Indians became acculturated as early as 1598, while others were undergoing this process in 1848. It is important to acknowledge that the mission program lasted close to 250 years; during that period, generations of mission and ranchería Indians underwent the same cultural pressures as did the Indians of the interior of Mexico. The policy of the governments of Spain and Mexico had been to transform the indigenous peoples into subjects and later citizens of the state with a common religion and national culture. Following the Mexican American War of 1846–1848, Christian Indians had accommodated to the culture of the colonists (in particular the culture prescribed and proscribed by the Catholic Church). After U.S. occupation, pressures to become “culturally Mexican” increased.
Cook (1976) concurs with this acculturation thesis and adds that in the case of the mission Indians their social networks contributed to furthering their Mexican acculturation. California mission records and interviews that Cook conducted with descendants of mission Indians in 1940 indicate that by 1848 most mission Indians were related to Mexican colonists and intermarriage was common. Cook notes that after the Mexican American War the relations between the mission Indians and the Mexicans were not severed, as most continued to live together.
Though the demographic question of how many mission and ranchería Indians chose to assume a Mexican public identity is beyond the scope of this book, the Epilogue elucidates this theme by providing auto/ethnographic accounts of people who are of bicultural Mexican and Chumash ancestry, focusing on my affinal relatives from Santa Inés and Santa Bárbara. My husband Richard, our children, and his consanguineous relatives are part of the California Indian populations with roots in the missions, presidios, Christian rancherías, and colonial towns. After the Mexican American War, his ancestors took different paths. Some lived in the towns, others remained in the Indian villages, and others chose to be relocated to the reservations. Regardless of their choices, my husband’s family networks were not ruptured, and they retain contact to this day. Currently, some identify as Chicanos, others as Mexicans, others as Americans, and many as Chumash. My point in presenting this case study is to illustrate that after the Mexican American War there were strong pressures and rewards for Christian Indians to assume the public identity of Mexican mestizos.
As previously discussed, under U.S. congressional orders and the U.S. Supreme Court ruling Johnson v. McIntosh (1823) Indian tribes did not own the property they inhabited unless they had purchased it or if a special agreement was extended to them by Congress. Though Christian Indians in California were not removed, their property rights were severely limited by state law.15 Under Suñol v. Hepburn (1850) the California Supreme Court ruled that emancipated Indians (the legal term used for Christian Indians) could not retain title of the land grants given to them under Spanish or Mexican rule. The justices upheld federal opinion and addressed specific issues pertinent to Mexican Indians. The deeds of Christian Indians were nullified on the basis that they did not have the mental capacity to manage or develop property. Although the justices recognized that Christian Indians were among the peoples who acquired citizenship under Mexican rule, this status was interpreted to pertain merely to wardship.
This decision was unlike the New Mexico State Supreme Court ruling, where the justices offered a similar opinion on citizenship yet upheld the Pueblo Indians’ property rights. In California the justices chose not to give Indians similar consideration, and the land commission implemented the orders. California land grant records indicate that fourteen Indians attempted to have their land grants confirmed; thirteen petitions were rejected and one confirmed (Cowan 1977). Only Lupe Iñigo, the wife of Robert Walkinshaw, a successful Anglo-American businessman, was issued an exemption (Ayers 1886:13; Cowan 1977:62). The land grant was confirmed in the name of Lupe and her spouse.16
Two years later the state legislature passed a more grievous assault against the Indians and converted most identifiable Christian Indians into landless paupers. The Preemptive Act of 1853 formally decreed that all Indian lands were public domain and were open for homesteading (Haas 1995:59). Land inhabited by the secularized Indians of the mission communities in San Antonio, San Carlos de Monterey, Santa Cruz, San Rafael, San Francisco de Asís, and San Francisco Solano immediately became available to homesteaders (Cowan 1977). Oddly, the U.S. Congress allowed state legislators to evict most Indians from their homes, although it was legally responsible for protecting Indian country against state legislation which could leave Indians homeless (Johnson v. McIntosh, 1823).17 Congress merely responded by reserving some land in areas where the land was arid and inadequate to sustain farming communities. It also commissioned the military to prevent the relocated families from leaving the reservations (Hurtado 1988).18 In 1853 Edward F. Beale, superintendent of Indian affairs in California, offered a scathing critique of Congress’s failure to protect Indians under the Treaty of Guadalupe Hidalgo (Heizer and Almquist 1977:79). In his report to the commissioner of Indian affairs he provided ample documentation of the devastation caused by the Preemptive Act. Beale wrote of California Indians “who are reduced to despair—their country, and all support, taken away from them; no resting place, where they can be safe, death on one hand from starvation, and on the other by killing and hanging” (cited in Heizer and Almquist 1977:79).
Why was it necessary for the state legislature to dispossess Indians of their homes—and, more importantly, why did Congress fail to protect them? The answer lies in demographics. After all, these were the Gold Rush days in California: thousands of Anglo Americans and European immigrants were moving West. By 1849 nearly 100,000 settlers had migrated to California in search of gold and land, and these people needed permanent homes (Grodin, Massey, and Cunningham 1993:9). The Preemptive Act was necessary if Anglo-American homesteaders were to be accommodated, particularly because the Christian Indians were in possession of some of the best coastal lands in California.
Prior to the passage of the Preemptive Act Christian Indian communities had been identified by federal agents but had not been ordered to vacate their homes. On the contrary, Congress passed “An Act to Ascertain and Settle the Private Land Claims in the State of California,” commonly known as the California Land Act of 1851 (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Chap. 41, Sec. 16, p. 634). The act reassured all Californians, including Christian Indians, that deeds were not necessary if occupied tracts were located in previously incorporated towns or villages.19 As long as a town or village had a corporate body which was authorized by the community members to file a petition, Congress would confirm all plots and civic property. Under the Land Act of 1851 Congress did not add any stipulations excluding Christian Indians. Sadly, two years after the act was passed Congress shunned its federal responsibilities and did not rule California’s Preemptive Act illegal when it clearly went against federal property law.
Although thousands of Indians were forced to abandon their homes, Christian Indians refused to move to reservations (Haas 1995; Hurtado 1988). Many moved to Los Angeles, where employment was available (Weiss 1978), while others resisted forced eviction and instead chose to rent homes near the villages of their birth. Christian Indians refused to abandon their communities in Sabobá, Temecula, Pala, San Pascual, in several neighborhoods in San Juan Capistrano, and in the villages of San Luis Obispo and Santa Inés (Bean and Shipek 1978; Engelhardt 1986; Grant 1978a; see Photograph 35).
Since Christian Indians became among the poorest people in California, they were forced to develop creative ways of supporting themselves financially. Allegedly, many former mission Indians were stealing, entering embezzlement schemes, and gambling (Grodin, Massey, and Cunningham 1993; Jackson 1903; Monroy 1990). They had produced an illegal underground economy that was a nuisance to others. Many Anglo Americans perceived this to be a problem and asked the state government to respond to their concerns. In 1865 the state government attempted to rescind the Christian Indians’ freedom of movement and include them as part of the population that had to be placed on federal reservations (People v. Juan Antonio, 1865). The California Supreme Court acknowledged the state government’s concern, but ruled against its removal recommendation. In People v. Juan Antonio (1865) the justices ruled that emancipated Indians were peaceful people and would be allowed to continue living outside the reservations.
Photograph 35. Mission Indians Who Refused to Disperse: General José Pachito and the Captains at a Meeting at Mission San Antonio de Pala, 1885. Courtesy of the University of Southern California, on behalf of the USC Library Department of Special Collections.
In 1873 a federal Indian agent again offered the opinion that the Preemptive Act was a disaster and the federal government needed to address the problems produced by the state of California (Engstrand 1991:42–43; Haas 1995:59). John G. Ames reported that most Indian villages had been dismantled and that the Christian Indians were living in severe poverty. Some six years later, due to increasing public concern, the U.S. Congress was forced to address the plight of the California Indians. It once again earmarked land for reservations and in 1879 established a Mission Agency to address the particular problems of the mission Indians (Dale 1951:87). A few mission Indian families joined other tribal Indians and agreed to move to the reserved lands. All families were given wagons and plows to help them farm. California Indian agents, however, reported that most mission Indians refused to leave their communities because the reserved lands were nearly impossible to farm.
In 1881 Helen Hunt Jackson wrote A Century of Dishonor: A Sketch of the United States Government’s Dealings with Some of the Indian Tribes (Dale 1951:91). This book and other ongoing articles on the mission Indians’ poverty critiqued the legal procedures used to dispossess Indians of their land grants (Jackson 1903). In particular, Jackson damned Congress and asked people to demand that something be done in behalf of the mission Indians. Public opinion was aroused, and Congress finally responded by reserving fertile land near Los Angeles and San Diego as well as opening boarding schools for Indian children. Sadly, Congress made these reserves temporary and only gave families occupancy rights. People refused to move without being given deeds, Indian agents reported, because they knew very well that they would soon be forced to leave. It was better for them to continue living on their own and finding ways to become financially secure.
Though Congress refused to relinquish title to public lands, many Christian Indians fought back and attempted to keep their ranches by appealing to the courts, where they had received better treatment. In Byrne v. Alas et al. (1888) twenty Christian Indian families associated with Mission San Luis del Rey claimed the right to retain former mission lands on the basis that they were Mexican. The families included former mission Indians as well as Christian ranchería Indians. The California State Supreme Court ruled in their favor, arguing that the Treaty of Guadalupe Hidalgo protected their property rights because Mexico had made them citizens. It was an astonishing victory for the Christian Indians of California and a resounding reversal of Suñol v. Hepburn (1850) and the Land Act of 1851. Unfortunately, the following year the federal government intervened and overturned all cases with similar rulings (Goodrich 1926). In Botiller v. Dominguez (1889), the U.S. Supreme Court ruled that Spanish and Mexican land grantees could only have their grants confirmed if they had filed a claim under the California Land Act of 1851. This decision was immoral; at best, it was a hypocritical ruling since California laws had prohibited Indians from filing land claims.
Historian William W. Robinson (1948) proposes that although land grants held by Christian Indians were void some Indians probably did retain their ranches by claiming Mexican citizenship. This is plausible, since during the Mexican period the government did not record the race of the grantees. During the Anglo-American period, the grants of Indians who could convince others that they were Mexican could be confirmed. Robinson suggests that a few of the confirmed grants held by Mexicans may have belonged to acculturated Mexican Indians. For example, he found that patent to Rancho Huerta de Cuatí in Los Angeles was granted to Victoria Reid. After investigating Reid’s ethnicity, Robinson found that she was an Indian married to Hugo Reid, an Anglo American. Reid was presumed to be a mestiza and was given title to 128 acres (Ayers 1886:8; Cowan 1977:31).
By the turn of the twentieth century, Congress had refused to give most reservation Indians ownership of their communities. They lived on land owned or leased by the government. By 1903, 2,552 California Indians lived on twenty-seven reservations (Dale 1951:94), ranging in size from 280 acres to 38,600 acres. Less than fifteen reservation communities had been issued a patent.
Any persons wishing to validate their land grant could do so, as long as they were not identifiably Indian. Mexicans and Anglo Americans submitted 813 petitions; 604 of these were confirmed (89 belonging to U.S. citizens or European immigrants, the rest to Mexican citizens), a 75 percent confirmation rate (Morrow 1923:144).20 Of the grants reviewed, 190 were rejected and 19 were withdrawn (it is uncertain whether these petitions were rejected upon submission or whether the applicants withdrew them). In total the land grants confirmed by Congress contained 9 million acres (Morrow 1923:144).
In addition to the grants confirmed by Congress, Mexican and Anglo-American residents living within the boundaries of a town also had their house and ranch lots confirmed. The California Land Act of 1851 established the procedure to confirm town dwellings, even if a person did not hold a deed (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Chap. 41, Sec. 14, p. 634). Unlike the situation in New Mexico, where Congress refused to confirm town lots unless a person held a deed, in California U.S. congressmen did not issue a similar requirement. With the exception of Santa Cruz, and of course all the Indian towns and villages, the former Mexican township charters were confirmed. In most cases, however, the federal government took possession of a large part of the town’s unused land and opened it for homesteading (Robinson 1948:41).
Though many Mexicans were able to retain their homes, hundreds lost a great deal of land when hundreds of thousands of Anglo Americans flooded California. By 1860, due to migration, the non-Indian population in California had grown to over 379,994 (U.S. Census 1864:34). These newcomers needed a place to live, and Congress developed the legal infrastructure to accommodate their needs by passing the Homestead Act of 1862. Settlers now had the right to claim vacant and public lands (Twelve Statutes at Large, Treaties, and Proclamations of the United States of America, 1859–1863, Chap. 75, Sec. 1, p. 392). As part of the act, Congress redefined vacant land as property that was not in use. If a homesteader could prove a Mexican grantee had abandoned his/her property or was not using part of it, Congress could extinguish the grantee’s title (Morrow 1923). This became a serious problem for all grantees, as a large part of the ranch lands were used for pasture and not for farming (Acuña 1972; McWilliams 1968). Furthermore, because Congress had previously ruled under the Land Act of 1851 that it would not confirm any grant that had an overlapping claim, this policy delayed the confirmation process (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Chap. 41, Sec. 13, p. 633).
Under the Homestead Act of 1862 any person age twenty-one or over who was a U.S. citizen or was eligible to be naturalized and was in possession of a tract of land could file a homestead claim with the California Land Commission (Twelve Statutes at Large, Treaties, and Proclamations of the United States of America, 1859–1863, Chap. 75, Sec. 1, p. 392). This process, however, excluded all non-White people. Homesteaders who filed an overlapping claim could not be evicted unless the state or federal courts instructed them to leave. If a homesteader filed a claim that was challenged by a grantee, the dispute entered the courtroom. The grantee’s litigation expenses increased if the case was not settled by a district court or when multiple overlapping claims were filed. The cost of litigation also increased if the case had to be appealed because the land commissioners had handed the homesteader a favorable decision. Under California’s Land Act of 1851 grantees were responsible for paying all litigation costs if they challenged the commission’s ruling (Nine Statutes at Large and Treaties of the United States of America, 1845–1851, Chap. 41, Sec. 10, p. 633). In such cases the grantee was often left bankrupt, even if the suit was eventually won. For example, former general Mariano Vallejo won cases at the district level, but because they were appealed to the U.S. Supreme Court he had to pay for the litigation costs. These expenses eventually left Vallejo bankrupt (United States v. Vallejo, 1859; United States v. Vallejo, 1861a; United States v. Vallejo, 1861b). At Vallejo’s death the only property he owned was the house he lived in (Bancroft 1964:R-Z 757–759).
Similar problems were experienced by former governor Pío Pico and his relatives. The titles of their enormous land grants were challenged by homesteaders, and several cases reached the U.S. Supreme Court (United States v. Francisco Pico and Others, 1859; United States v. Andres Pico, 1859; Pico v. United States, 1864). Pío Pico was reduced to being a town dweller with sufficient money to lead a life of leisure but no longer being part of California’s elite (Bancroft 1964:I-Q 778). His brother Andrés, who became a political broker, did much better under U.S. occupation (Monroy 1990). In 1853 Andrés won a favorable decision against the land commission when the U.S. Supreme Court ruled that Rancho Santa Margarita y Las Flores was not vacant property (Rush 1965:93–100). The California Land Commission had tried to appropriate the ranch and allegedly convert it to a land reserve. Andrés questioned the commission’s intent, because the property was sought by many San Diego real estate developers. He won by submitting a perfect title and surveys and proving that Indian tenants lived on the ranch. This favorable ruling left his property protected against future homestead claims. In 1862 Andrés sold the ranch to Pío Pico, who in turn sold half of the ranch to his brother-in-law, John Forster (ibid., 95). Homesteaders did not pose a legal problem for Forster.
The privileges that newcomers obtained under the Homestead Act also adversely affected Mexicans from San Francisco. Land was scarce in the downtown area, and only public land on the outskirts of the city was available for distribution. Needless to say, the U.S. Congress stepped in and developed the legal infrastructure to give land to the incoming settlers. A similar problem did not occur in other Mexican towns because after the Indians were evicted from their homes there was sufficient land to accommodate the new settlers. In San Francisco the redistribution of property began in 1852, when Anglo Americans began settling in the city (Robinson 1948:230). Many of the newcomers were families who had failed at farming or had not struck it rich in the gold mines of northern California. Instead they chose to settle in a city and work for a living.
In 1854 the California Land Commission recommended to Congress that San Francisco had enough residents to be incorporated as a city. It also suggested that the local assembly be allowed to submit recommendations for confirmation of grants, to subdivide tracts, to distribute new lots, and to survey all city tracts (ibid., 229–245). At this time San Francisco’s Mexican population was in the majority and would have been the main beneficiaries of the land commission’s recommendation. Though the local assembly was pleased with part of the decision, it disputed the redrawing of the city limits. The commissioners recommended that the city’s Mexican land grant be reduced from sixteen square leagues to four. The confiscated property would then be distributed among the incoming homesteaders. The dispute immediately entered the courtrooms. It began at the district level and reached the U.S. Circuit Court.
While the suit was being litigated the Homestead Act was passed, and San Francisco was flooded by thousands of newcomers searching for permanent homes. Many came from the southern states in an attempt to escape the hardships of the U.S. Civil War and its aftermath. As San Francisco became crowded, people began fighting for prime lots. Often Mexicans found several families squatting in their yards and were unable to evict them, because it was against the law. Oddly, in 1866, after thousands of homesteaders had filed petitions for lots in San Francisco, Congress stepped in and rescinded the land commission’s recommendation, approving the original sixteen-square-league petition submitted by the local assembly (Robinson 1948:231, 236). Prior to that date, Congress had refused to intervene. On the contrary, while Mexicans were in the majority it prevented the land commission from issuing patents to any city lot, even if the residents held a Mexican deed. Congress’s reason for choosing to delay the confirmation process is blatantly clear. It was not ready to confirm the tracts when San Francisco was predominantly a Mexican city, when the homesteaders would not have had any right to set a claim. As long as a title was in question, the land was up for grabs. When San Francisco was finally issued a patent, everyone who was a resident was eligible to receive a tract of land. The city held title in trust for the residents and was responsible for redrawing boundaries.
By 1879 Anglo Americans from throughout the United States had continued to settle in California and the non-Indian population had increased to over 865,000 (Grodin, Massey, and Cunningham 1993:9). In many cases the newcomers settled on vacant land, only to find that they could not file a claim because it belonged to a Mexican or to an eastern capitalist who had purchased the grant (see Photograph 36). This often led to violence; when the homesteaders were in the majority, the landowners were vulnerable (Acuña 1972; McWilliams 1968). Homesteaders knew that there was power in numbers and that federal and state law protected them.
Photograph 36. Anglo-American Railroad Workers’ Tent City, near Ventura, California, 1887. Courtesy of the Ventura County Museum of History and Art.
Two cases in Ventura County exemplify this point: the battles over the Sespe and Peralta ranches. On 24 March 1877 serious disputes over land erupted between the More family, the owners of Sespe Ranch, and a large crowd of homesteaders who had just arrived (Triem 1985:36). The Mores were part of an eastern capitalist family who arrived in Ventura County after the Mexican American War and purchased the land grant rights of local Mexican families. Upon their arrival in Ventura County, homesteaders found that the Mores and other wealthy investors had bought many of the Mexican land grants and that the land was now for sale rather than available for homesteading. The most violent encounter occurred between the homesteaders and the owners of Sespe Ranch. One night the homesteaders set fire to the Mores’ barn; as Thomas More raced to rescue his animals, he was ambushed and shot to death (Stuart 1879). Although the More family had previously sold a large part of their Ventura County property to the incoming settlers, many others decided to take possession of Sespe Ranch. In response to the violence, the More family sold and gave away a large part of the ranch.
Rancho Peralta, adjacent to Sespe Ranch, was also the site of a violent takeover. The rancho was located in what is currently the northeast section of the city of Santa Paula, where I grew up. I have previously narrated this account in my book Mexican Outsiders: A History of Marginalization and Discrimination in California, where I offer a historical ethnography of race relations in Santa Paula (Menchaca 1995). Julio Peralta was a wealthy landowner who remained economically stable after the Mexican American War. He was the last Mexican in Santa Paula to keep his ranch; other Mexicans had lost their claims, and the Indians had been evicted from their villages by 1857 (Davidson et al. v. United States Government, 1857). When the U.S. government required Mexicans to settle their land claims, Peralta had sufficient resources to pay the costs of confirming his grant. Between 1869 and 1896 Peralta hired at least ten attorneys to defend his claims (Menchaca 1995:13–18). He originally tried to perfect his title by filing a petition with the California Land Commission. It was accepted on the basis of two points. First, Peralta held an indisputable and perfect land grant title. Second, he filed a claim under the Homestead Act of 1862 to strengthen his title. This gave him the right to own the ranch irrespective of whether or not his Mexican land grant was valid.
Unfortunately for Peralta, his victory was short-lived. In 1867 Santa Paula experienced a mass influx of Anglo-American migrants and several families settled near Peralta’s ranch (Menchaca 1995:13). At first, his neighbors were friendly and accorded him respect as a prominent citizen of Ventura County. A few years later, however, Peralta’s neighbors became annoyed with him. Soon they began terrorizing him and demanding that he leave Santa Paula. They also began to usurp and cultivate part of his land, in spite of his continuous protests (Santa Paula Water Works et al. v. Julio Peralta, 1893; Santa Paula Water Works et al. v. Julio Peralta, 1896). To frighten Peralta, his neighbors often shot at him and his hired hands. They also shot at his farm animals and killed several of them. When violence proved ineffective, the neighbors decided to challenge Peralta’s land claim and thereby evict him legally. In 1893 the homesteaders filed an overlapping land dispute case in the Ventura County Superior Court, alleging that Peralta had sold them his ranch and later refused to move (Santa Paula Water Works et al. v. Julio Peralta, 1893). They testified that an oral agreement had been transacted with Peralta and to support their allegations presented as evidence a contract drawn and signed only by them. Peralta denied making any type of agreement and questioned the legality of the contract because he had not signed it. His statement was corroborated in that the contract submitted to the court by the homesteaders did not have his signature.
The homesteaders also argued that Peralta had never held legal title to the land because his grant was situated on mission property and thus was public domain. Peralta advanced documents proving that was not the case. Furthermore, he argued that the homesteaders’ allegations were a moot point because under the Homestead Act of 1862 he was the legal owner. The superior court ruled that Peralta was the owner of the ranch but was obliged to share with others the water that ran through his property.
The dispute lasted for years, as the homesteaders ignored the court’s decision and continued to inhabit the disputed property. In 1896 Peralta’s neighbors appealed the superior court decision to the California Supreme Court (Santa Paula Water Works et al. v. Julio Peralta, 1896). W. H. Wilde and Orestes Orr, the attorneys representing Peralta’s neighbors, argued that Peralta had no legal right to the ranch or to the water flowing through his property. To support their allegations, Wilde and Orr argued that Peralta was not a U.S. citizen because under immigration law he was not eligible to be naturalized or to own property. To contest the arguments advanced by the plaintiffs’ attorneys, Peralta hired seven attorneys, Mr. Daly, Mr. Toland, Mr. Shepard, Mr. Eastin, Mr. Gottschalk, R. F. Del Valle, and J. L. Murphy. Their main counterarguments were that (1) the Ventura County Superior Court had previously ruled that Peralta was the legal owner of the land and (2) the state supreme court had ruled that Peralta was a United States citizen; therefore he was eligible to enjoy the full political rights of a citizen.
After listening to both sides, the state supreme court justices upheld the Ventura County Superior Court decision. Justice Britt, who wrote the opinion, also admonished the plaintiffs for their actions in this entire affair. He stated that no one in Santa Paula had the right to dispossess Peralta of his civil rights because they did not believe he was a citizen. Only the U.S. government had the right to investigate the citizenship status of individuals and determine if they had the right to own land. In closing, Justice Britt ordered that Peralta be allowed to resume his life on the ranch and ordered his neighbors to stop terrorizing him. Suffice it to say that although Peralta retained legal ownership of his property, he lost everything. The Ventura County sheriffs did not enforce the court order. Peralta’s neighbors ignored the court ruling and used violence to chase him out of town (Santa Paula Water Works et al. v. Julio Peralta 1893–1898).21 In any event, the homesteaders eventually became members of the prominent “founding families” of Santa Paula (see Photographs 37 and 38).
Photograph 37. Businessmen in Santa Paula, California, 1890s. Courtesy of the Ventura County Museum of History and Art.
Though Peralta was chased out of town in Ventura County, a few Mexican elites were treated much better. The Oliva, del Valle, López, Ortega, de la Guerra, and Menchaca-Camarillo families kept their ranches and continued to prosper (Triem 1985:37–45). Moreover, the Menchaca-Camarillo family remained one of the wealthiest in Ventura County. They were not devastated by the war; on the contrary, they mixed well with local Anglo-American elites and established profitable business partnerships. Among their holdings were several ranches in the county, one of which specialized in raising fine Arabian and Morgan horses. In 1893 the Menchaca-Camarillo family had one of the largest estates in the county, with a Queen Anne–style home, a racetrack, and astonishing gardens (see Photograph 39). Though the Menchaca-Camarillos maintained their wealth into the twentieth century, the other ranching families were only able to maintain their elite status until the end of the nineteenth century (Menchaca 1995; Triem 1985:45). They were forced to sell their homes to pay their debts.
Photograph 38. Interior of a Hardware Store in Santa Paula, California, 1880s. Courtesy of the Ventura County Museum of History and Art.
The devastating economic downturn of the Mexican community did not occur until the 1880s, when 70 percent of them were reduced to laborers (Haas 1995:69). This occurred in relation to two convergent events: the financial bankruptcy of the Mexican ranchers and increased migration to California, which produced an oversupply of labor. In the 1870s many Mexicans began selling their ranches after a series of droughts killed their livestock and ruined their fields (Haas 1995:64). Small farmers could not withstand the economic losses or the economic stress imposed upon them by the homesteaders who were treating Mexican ranch lands as public domain (Monroy 1990; Pitt 1970). Families like the Peraltas and Menchaca-Camarillos could withstand the economic pressures because they were financially secure, but the small-scale farmers were forced to sell their ranches before the homesteaders took their land by force.22
Photograph 39. Adolfo Menchaca-Camarillo Estate, Camarillo, California, 1893. Courtesy of the Ventura County Museum of History and Art.
Exacerbating matters, a decade later employment became more competitive.23 Between the 1860s and 1880s over 12 million immigrants entered the United States, and hundreds of thousands migrated to California—where land was plentiful (Feagin and Feagin 1999:77, 82, 135, 163). Employers took advantage of the situation by lowering wages and instituting a peonage system in the farms and a two-tier labor system in nonfarm occupations (Higham 1987; Reisler 1976; Takaki 1990). A large portion of the Mexican labor force became part of a peonage system in which farmers provided housing and food for their workers in lieu of wages (Almaguer 1979; Galarza 1964; Menchaca 1995). It was common to give farm employees only a few dollars a month.24 In nonfarm employment, a segmented labor market emerged in which the best jobs were reserved for Whites. People of color were relegated to unskilled jobs paying the lowest wages (Gonzalez 1990; Menchaca 1995; Reisler 1976). Sadly, Mexicans could not join labor unions to protect themselves, because in those days they and other racial minorities in California and throughout the United States were prohibited from joining (Feagin and Feagin 1999; Takaki 1990). On the contrary, union leaders favored a two-tier labor system in order to restrict Mexicans and other minorities from competing for the higher-paying jobs.
This two-tier labor system continued into the twentieth century. A study conducted by the Dillingham Commission of the federal government found that by 1911 Mexicans were paid the lowest wages in the country in comparison to other ethnic groups. The commission concluded that on the average a Mexican farm worker was paid $1.42 per day, while members of other ethnic groups were paid at a minimum 50 cents more (Dillingham Commission, 1911, pp. 36–37, cited in Reisler 1976:19). The commission also found that in the railroad industry it was a common practice to pay Mexicans lower wages. For example, since 1908 the Southern Pacific Railroad had paid Greek labor $1.60 per day, Japanese $1.45, and Mexicans $1.25 (Dillingham Commission, 1911, pp. 13–19, cited in Reisler 1976:4). Once Mexicans lost the ranches, they also lost economic control of their lives and were forced to enter a labor system where people of color were discriminated against.
After the Mexican American War, the racial reforms enacted by Mexico were nullified and the conquered population embarked upon a new racial era in which they were distinguished on the basis of race and ascribed different legal positions. I have called this process racialization. Indians experienced heightened forms of racial discrimination because they were not protected by the Treaty of Guadalupe Hidalgo. The Pueblo Indians of New Mexico were the only Indians who were allowed to use the treaty in their self-defense.
Although Mexicans who were mestizo and White also experienced various forms of racial discrimination, the U.S. government allowed many of them to keep their homes and ranches, which protected them from the devastations experienced by most Indians. Indeed, having a place to live was a major advantage and became an incentive for Christian Indians to assume the public identity of a Mexican mestizo. Though the issue of land was an incentive, I do not presume that all Christian Indians took the path of mestizaje. My point is to argue that Christian Indians were well acquainted with Mexican traditions and practices and therefore had the ability to find ways out of their legal categories—if they chose to.
This narrative includes detailed accounts of the experiences of the Christian Indians, mestizos, and White Mexicans following the Mexican American War, but my observations on the afromestizos have been limited. The federal government instituted a new racial project after the war and placed afromestizos under the legal mandates applied to U.S. Blacks. Theoretically, this made afromestizos part of the Black communities, and it is difficult to discern what happened in practice. Nonetheless, in my search to understand the history of the afromestizos I found countless sources in archives. I am convinced that this silenced history can be retrieved and am currently engaged in that task. For now, however, this endeavor is beyond the scope of my narrative. I do, however, want to add concluding comments and share my theoretical inquiries.
We know that in 1850 the U.S. Census counted 59,540 Black people residing in the Southwest (U.S. Census 1854: 160). Most of these people lived in Texas, and 58,161 of them were slaves. Free Blacks numbered 965 in California, 17 in New Mexico, and 397 in Texas (ibid.). In Arizona census enumerators did not identify any slave or free Black. Five years after the U.S. Civil War ended, in 1870, the size of the Black population of the Southwest had increased to 257,945 (U.S. Census 1872:20). Most of these people resided in Texas and were emancipated slaves. At that time California had a Black population of 4,272, New Mexico 172, and Arizona 26 (U.S. Census 1872:20).
My point in reviewing these demographic data is that following the Mexican American War a large number of Black slaves were transported to Texas and many free Blacks settled in California; these internal population movements obscure the history of the Mexican afromestizos. In Texas we are uncertain whether afromestizos became slaves, were deported, or continued to live among Mexicans. And in New Mexico we do not know whether they were deported or sought refuge in the Mexican or Indian towns. Likewise, since afromestizos in California obtained a legal position similar to that of mestizos it is uncertain whether they remained among Mexicans or mixed with U.S. Blacks. It is possible, however, that throughout the Southwest afromestizos sought refuge in the Mexican towns since they were after all Mexican and spoke Spanish rather than English (Forbes 1968:16, 1966:243–245). We must also not forget that afromestizos were racially mixed, and after the Mexican American War it was difficult to distinguish fair-complexioned afromestizos from darker Indians and mestizos. This certainly gave them an opportunity to pass for people of other races.
We also need to consider how afromestizos and other Mexican racial groups reacted to U.S. racial norms and were subsequently affected in the selection of marriage partners—especially since being Mexican and Black in the United States carried a double stigma. To complicate matters, perhaps the highly criticized observation made by Claude Lévi-Strauss (1982) in his classic book Elementary Structures of Kinship may be useful in evaluating this hypothetical quandary. According to Lévi-Strauss, regardless of a society’s marriage taboos beautiful women are always sought after and lead men to break the marriage prohibitions of their families and communities. Keeping this thought in mind, and postmodernizing this structuralist analysis by changing the reference group from beautiful women to beautiful people, one can confidently presume that many people continued crossing racial boundaries.
This was quite possible, because after the Mexican American War U.S. marriage laws allowed afromestizos and most Mexicans to continue marrying each other—that is, as long as the Mexicans were not White. Following the war, Black people were permitted to marry Indians in California, Arizona, and Texas, but were prohibited from marrying Whites, including Mexicans placed in this legal category (California Stats., 1850, Chap. 140, p. 424, cited in Perez v. Sharp, 1948, p. 719; California Civil Code Sec. 69, cited in Perez v. Sharp, 1948, p. 712; Penal Code of the State of Texas, Vol. 1, Art. 492; Arizona CC 3837, cited in May 1929:47). Mexicans who were mestizos were permitted to marry Blacks in Texas, Arizona, and New Mexico, but not in California. California’s antimiscegenation laws were very strict, and Mexicans who were one-half White could not marry Blacks (Perez v. Sharp, 1948). New Mexico did not have antimiscegination laws (May 1929). Thus, excluding California, the marriage laws in the Southwest gave afromestizos the opportunity to continue marrying most Mexicans. The question, however, still remains: what community did afromestizos become part of?
Regardless, it is certain that afromestizos were among the founders of the first cities in the Southwest and that many Mexican Americans share that heritage. The myth that Black people never founded any major city in the United States should also be laid to rest, as it is clear that afromestizos were part of the population that founded Nacogdoches, San Antonio, Laredo, La Bahía, Albuquerque, Los Angeles, and Santa Barbara.
