H. R. 6365
IN THE HOUSE OF REPRESENTATIVES
July 13, 2018
Mr. Pearce introduced the following bill; which was referred to the Committee on Natural Resources
To establish the Treaty of Guadalupe Hidalgo Land Grant-Merced Claims Commission and other Federal policies for the restoration of land for hardships resulting from the incomplete and inequitable implementation of the Treaty of Guadalupe Hidalgo, to affirm Land Grant-Merced property rights protected by the Treaty of Guadalupe Hidalgo, and for other purposes.
Short title; table of contents
This Act may be cited as the
Treaty of Guadalupe-Hidalgo Land Claims Act of 2018.
Table of contents
The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
Sec. 4. Treaty of Guadalupe Hidalgo Land Grant-Merced Claims Commission.
Sec. 5. Hearings on qualifying petitions.
Sec. 6. Reports.
Sec. 7. Federal land disposal authority.
Sec. 8. Authorization of appropriation.
Congress finds the following:
The Western and Southwestern United States have a unique history regarding land acquisition and ownership consequent to the substantial number of Spanish and Mexican land grants-mercedes. These land grants-mercedes were an integral part of the colonization and growth of the region before the United States acquisition under the Treaty of Guadalupe Hidalgo.
Under the laws of Spain and Mexico, land grant-mercedes included thousands of acres of land that was owned and used by the communities, within the land grant-merced boundaries, in common. This included guaranteed right to the use of water, forest, pasture, minerals and other natural resources located on the common lands.
The Treaty of Guadalupe Hidalgo as affirmed by the Protocol of Querétaro protects property rights of land grants-mercedes in the territory ceded by Mexico to the United States of America.
Property rights include land, land title, water rights, natural resource rights, mineral rights, and rights to physical access.
Congress has enacted several major public land laws subject to valid existing rights including the Organic Administration Act of 1897 (16 U.S.C. 473 et seq.), the Taylor Grazing Act (43 U.S.C. 315 et seq.), the Multiple Use and Sustained Yield Act of 1960 (16 U.S.C. 528 et seq.), and the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
Various provisions of the Treaty of Guadalupe Hidalgo have not yet been fully implemented in the spirit of the United States Constitution, article VI, section 2.
Serious questions remain regarding the rightful ownership of lands in several western and southwestern States. Certain public lands are the focus of such questions.
The Gadsden Purchase incorporated by reference the property protection provisions of the Treaty of Guadalupe Hidalgo.
Land claim commissions, appointed by Congress, have successfully examined disputed land possession claims.
The United States Government has recognized and upheld usufruct rights for other indigenous groups.
Between 1968 and 1981, the Forest Service recognized the uniqueness of the land tenure history in New Mexico and instituted what became known as the Northern New Mexico Policy for the Southwest Region to address the socioeconomic and cultural needs of the forest-dependent land grant-merced communities in New Mexico.
The United States General Accounting Office Report to Congressional Requesters, dated June 2004, numbered GAO–04–59, and entitled the
Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, found the New Mexico land claims confirmation process was inefficient and caused hardships to claimants. Such report provided the following options for congressional consideration in addressing land grant-merced claims:
Consider establishing a commission or other body to reexamine specific Land Grant-Merced claims that were rejected or not confirmed for the full acreage claimed.
Consider transferring Federal land to communities that did not receive all of the acreage originally claimed for their community land grants.
Consider making financial payments to claimants’ heirs or other entities for the non-use of land originally claimed but not awarded.
The General Accounting Office also noted that
Congress may disagree with the U.S. Supreme Court’s Sandoval 1897 decision and decide that it should be .
legislatively overruled, by addressing the affected land grants in some way or taking other action
The State of New Mexico’s response to such report, dated August 14, 2008, and entitled
Report to the New Mexico Attorney General—A Response to the GAO’s 2004 Report , found the following:
Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico
The Federal Government had a duty to correctly confirm land grants-mercedes in New Mexico and that duty was understated by the analysis of the General Accounting Office.
Most land grants-mercedes were not confirmed by the Federal Government in the correct type of land ownership pattern, as granted by Spain or Mexico to be held in common by the entire community, but rather the vast majority were confirmed as privately owned by the family of a single petitioner or as tenancy-in-common. The tenancy-in-common designation was foreign to Spanish and Mexican jurisprudence and left land grants-mercedes subject to partition suits that resulted in the significant loss of common land. These facts were omitted by the General Accounting Office report.
Most postconfirmation land losses were the direct result of the improper nature of the Federal confirmation, and erroneous Federal confirmations could not be remedied in the court system, contrary to the analysis of the General Accounting Office.
Many land grants-mercedes or their common lands were improperly rejected in their entirety, others lost substantial amounts of acreage by improper application of boundary descriptions, and others were foreclosed from being confirmed by earlier adverse rulings.
The Federal Government in a great many cases did not provide constitutionally sufficient notice of its confirmation activities, which contributed directly to many land grants-mercedes being erroneously misconfirmed.
The Federal Government and various Federal agents and officials involved in the confirmation process helped create a climate in which land speculators were able to undermine the adjudication process to dispossess land grants-mercedes of their common lands.
Compared to their original claims, land grants-mercedes suffered enormous loss of land to the Federal Government and others. This loss negatively impacted the economic, environmental, and social well-being of these communities.
The following land grant-merced priority rights were protected by the Treaty of Guadalupe Hidalgo:
Water rights, including all surface, ground, and runoff water within the former common lands that are now under the management of the Federal Government.
Natural resource rights, including gathering of fuelwood, timber, vegetation, vegetation products, rocks, soils, and grazing and watering of livestock that are now under the management of the Federal Government.
Mineral rights, including any and all surface and subsurface minerals located within the existing and former common lands as well as rights to compensation for minerals extracted from former common lands now under management of the Federal Government.
In this Act:
The term adjudication process—
means the processes required by treaty by which the United States recognized land claims between 1854 and 1904 in the territories ceded under—
the Treaty of Guadalupe Hidalgo; and
the Gadsden Purchase; and
includes the processes provided for in the 1854 Act establishing the Office of Surveyor-General of New Mexico (10 Stat. 308) and the 1891 Act establishing the Court of Private Land Claims (26 Stat. 854).
The term claim means the declaration of property rights protected by the Treaty of Guadalupe Hidalgo vested in a land grant-merced, including—
land, land title, mineral, and natural resource claims; and
The term claimant means a land grant-merced as represented by its governing body or an agent thereof.
Gadsden Purchase means the Treaty of Boundary, Cession of Territory, Transit of Isthmus of Tehuantepec.
The term Governing body means the governing body, as recognized by State law, of a land grant-merced.
The term land grant-merced means—
a community land grant identified in tables 1 and 2 of the General Accounting Office Report #GAO–01–951; or
a community, village, town, or settlement, the land of which was granted by the Government of Spain or by the Government of Mexico, in accordance with the laws, usages, and customs of Spain or Mexico between 1689 and 1854, within the boundaries of the Territory of New Mexico, which now includes the States of New Mexico, Colorado and Arizona, to—
the community, village, town, or pueblo; or
a person for the purpose of founding or establishing a community, village, town, or settlement.
The term qualifying petition means a petition submitted under section 5.
Secretary concerned means the Secretary that administers the relevant Federal land.
Treaty of Guadalupe Hidalgo
The term Treaty of Guadalupe Hidalgo means the Treaty of Peace, Friendship, Limits, and Settlement between the United States and the Republic of Mexico, effective February 2, 1848.
Treaty of Guadalupe Hidalgo Land Grant-Merced Claims Commission
There is hereby established a commission to be known as the Treaty of Guadalupe Hidalgo Land Grant-Merced Claims Commission (in this Act referred to as the
The duties of the Commission shall be to—
conduct a hearing on each qualifying petition and formulate a recommendation on restitution, as described in section 5(c); and
submit to Congress the reports required under section 6.
Number and appointment
The Commission shall be composed of 9 members, appointed by the President of the United States, of which—
1 member shall be appointed in consultation with the Secretary of the Interior;
1 member shall be appointed in consultation with the Secretary of Agriculture;
1 member shall be appointed who has a background in Spanish colonial and Mexican legal history as it applies to the Southwestern United States;
1 member shall be appointed who has a background in Spanish colonial, Mexican, and United States history of the Southwestern United States;
1 member shall be appointed who has a background in international laws pertaining to succession of States and treaties as they relate to property rights, land tenure, and usufruct rights;
1 member shall be appointed who has a background in past and present socioeconomic conditions of the Southwestern United States;
1 member shall be appointed who has a background in cultural geography; and
2 members shall be members of the governing body of a land grant-merced.
Each member shall be appointed for the life of the Commission.
A vacancy in the Commission shall be filled in the manner in which the original appointment was made.
Rate of pay
To the extent or in the amounts provided in advance in appropriation Acts, Members shall each be entitled to receive daily compensation not to exceed the rate of basic pay for level V of the Executive Schedule for each day, including travel days, during which they are engaged in the performance of duties vested in the Commission.
Preparation before hearings
Before the start of the first hearing under section 5, each member of the Commission shall prepare for such hearing by becoming familiar with the history of land grant-merced claims in the United States Southwest. This preparation may include—
the purchase, by the Commission, of pertinent literature on the subject for each Commission member to review; and
requests by the Commission for training and presentations on the subject from appropriate Federal or State agencies, institutions of higher education, and private organizations.
Powers of Commission
Hearings and sessions
The Commission shall, for the purpose of carrying out this Act, hold hearings, sit, and act at times and at a location in the State where the petitioning land grant-merced is located, take testimony, and receive evidence as the Commission considers appropriate. The Commission may administer oaths or affirmations to witnesses appearing before it.
Powers of members and agents
Any member or agent of the Commission may, if authorized by the Commission, take any action that the Commission is authorized to take by this Act.
Gifts, bequests, and devises
The Commission may accept, use, and dispose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of aiding or facilitating the work of the Commission.
The Commission may use the United States mail in the same manner and under the same conditions as other departments and agencies of the United States.
Authority to hire staff
The Commission may hire or contract staff necessary for the Commission to carry out its responsibilities under this Act.
Administrative support services
Upon the request of the Commission, the Administrator of General Services, Secretary of the Interior, and Secretary of Agriculture shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this Act.
The Commission is an agency of the United States for the purposes of part V of title 18, United States Code.
The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to any qualifying petition.
Failure to obey a subpoena
If a person refuses to obey a subpoena issued under subparagraph (A), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to any qualifying petition. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.
Service of subpoenas
The subpoenas of the Commission shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts.
Service of process
All process of any court to which application is made under subparagraph (B) may be served in the judicial district in which the person required to be served resides or may be found.
The Commission shall terminate not later than 180 days after the Commission submits the report required under section 6(b).
Assistance for Commission
Federal agency assistance to Commission
At the request of the Commission, relevant Federal agencies shall make available personnel, equipment, and facilities to assist the Commission in performing its activities under this Act.
State agency assistance to Commission
The Commission may accept assistance from relevant State agencies and institutions of higher education in performing its activities under this Act.
Hearings on qualifying petitions
Qualifying petition hearing
The Commission shall conduct a hearing on each qualifying petition, as described in subsection (b), to formulate a recommendation on restitution to the claimant, of the possible restitutions described in subsection (c).
Designation of location
The Commission shall designate one or more locations in the claimant’s State in which to hold such hearing.
Right to testify
All persons having an interest in the land involved in a qualifying petition shall have the right, upon notice, to be present and testify before the Commission during such hearing.
As part of such hearing, the Commission shall—
review each qualifying petition and receive testimony in order examine—
the impact to the land grant-merced and its associated communities resulting from the failure of the United States to properly recognize, during the adjudication process, a land grant-merced boundary, as it existed in 1854;
the impact to the land grant-merced and its associated communities resulting from the failure of the United States to act on a land grant-merced claim made during the adjudication process;
the impact to the land grant-merced and its associated communities resulting from the rejection of a land grant-merced claim made during the adjudication process;
the impact to the land grant-merced and its associated communities resulting from the incorrect confirmation by the United States of a Land Grant-Merced as a tenancy-in-common;
the impact to the land grant-merced and its associated communities resulting from the incorrect confirmation by the United States of the Land Grant-Merced as a private land grant to an individual;
the impact to the land grant-merced and its associated communities resulting from the United States incorrectly issuing a patent for the Land Grant-Merced to the wrong party;
the impact of prior adjudication decisions made by the United States on the submittal of subsequent land claim petitions with respect to the land grant-merced;
the impact to the land grant-merced and its associated communities resulting from the failure of the United States to provide adequate due process to land grant-merced during the adjudication process;
the impact to the land grant-merced and its associated communities resulting from the failure of the United States to provide adequate representation during the adjudication process, as required by law, for certain protected population located on the land grant-merced; and
the impact to the land grant-merced and its associated communities resulting from the misconduct or direct conflict of interest of United States officials during the adjudication process;
review existing Federal land use policies governing land identified in the qualifying petition;
identify and report all private and public leases on land identified in the qualifying petition, including lease type, term, and owner;
determine the value of revenues generated and resources removed from land identified in the qualifying petition, through sale, lease, permit, and all other means granted to any person not associated with the claimant, during the period it was taken out of control of the claimant until the time of such hearing; and
review and examine existing laws, memorandums of understanding, agreements, and easements relating to the management and use of land identified in the qualifying petition.
When evaluating qualifying petitions, the Commission shall apply international treaty law and laws pertaining to the succession of States. The Commission shall also evaluate qualifying petitions based on Spanish and Mexican civil and customary law, principles of equity, and customs and usages in effect in what is now the Southwestern United States, from 1692 up to the ratification of the Gadsden Purchase in 1854.
Elements of qualifying petition
For purposes of this Act, a qualifying petition is one that—
is received by the Commission not later than the date that is 5 years after the date of the enactment of this Act;
is made pursuant to an official resolution adopted by the claimant; and
includes the following information:
The name and address of the claimant and a name, address, telephone number, and if available, email address of the point of contact for the claimant.
Documentation showing the claimed boundaries of the relevant land grant-merced, including a legal survey or, if a survey is not readily available, a sketch map or geographic information system rendering thereof.
A summary of the claims being made and the requested restitution for each claim.
The Commission may, under subsection (a), recommend as restitution that the Secretary concerned—
convey Federal land to the claimant;
grant the claimant stewardship rights to all or part of Federal land;
grant the claimant priority access and use rights to all or part of Federal lands for—
harvesting of natural resources, such as fuelwood, timber, minerals, rock, soils, vegetation, and vegetation products;
grazing and watering of livestock; or
hunting and fishing;
grant the claimant priority rights to leases, special use permits, and easements on Federal land, which may include placement of land grant-merced infrastructure and community cemeteries;
grant the claimant priority rights to acquire Federal lands that may become available for disposal; and
grant the claimant priority rights to obtain new, unused, or unrenewed grazing allotments on Federal lands.
Protection of non-Federal property
The Commission may not make any recommendation that affects the ownership, title, or rights of owners of any non-Federal lands covered by the qualifying petition.
Protection of existing leases
The Commission may not make any recommendation that affects any lease, permit, or right-of-way held by a person on such land as such lease, permit, or right-of-way existed on the day before the date of the transfer.
Not later than 90 days after the date that the Commission concludes a hearing under section 5 for a qualifying petition, the Commission shall submit a report to Secretary concerned and the claimant that includes the Commissions recommendations and findings with respect to that petition.
Report to Congress
Not later than 10 years after the date of the enactment of this Act, the Commission shall submit a report to Congress that details, with respect to each qualifying petition—
a summary of the claims in such qualifying petition;
the Commission’s recommended restitution with respect to each claim and reasons thereof; and
the Secretary that administers the land identified in the qualifying petition.
Federal land disposal authority
The Secretary concerned may transfer land to the claimant or grant the claimant any rights as is recommended by the Commission in the report required to be issued under section 6(a).
The Secretary concerned shall pay any costs associated with a land transfer under subsection (a).
Protection of acequias
The rights of any acequia located on Federal land on the date of the enactment of this Act shall not be impaired as a result of the enactment of this Act, including the right to use of water by valid water right owners and access to the acequia for necessary maintenance and improvements to the acequia easement and infrastructure.
Management of acequias
Each acequia located on Federal land on the date of the enactment of this Act shall be managed and controlled by the governing body of such acequia in accordance with N.M. Stat. §73–2–12 or C.R.S. §7–42–101.5
In this section the term
acequia means a waterway recognized as an acequia or a community ditch under New Mexico State law, including the diversions, storage facilities, and easements of such waterway.
Authorization of appropriation
There is authorized $1,000,000 for each of the fiscal years 2019 to 2028 for the purpose of carrying out the activities of the Commission.