One Hundred Fifty Years of Solitude.

Ruiz Cameron, Christopher David

Christopher David Ruiz Cameron [*]

REFLECTIONS ON THE END OF THE HISTORY ACADEMY'S DOMINANCE OF SCHOLARSHIP ON THE TREATY OF GUADALUPE HIDALGO

"Science has eliminated distance," Melquiades proclaimed. "In a short time, man will be able to see what is happening in any place in the world without leaving his house."

Gabriel Garcia Marquez [1]

I. Introduction: The Treaty of Guadalupe Hidalgo as History

For most of its one hundred fifty years, the Treaty of Guadalupe Hidalgo has been the scholarly province of history rather than of law professors. Whereas members of the history academy have produced a rich English-language literature describing both the terms of the Treaty and their interpretation in many of the reported cases, [2] members of the law academy, until now, have produced but a handful of significant law review articles attempting to do likewise. [3]

To be sure, receiving wisdom about the Treaty from historians instead of law scholars has been a blessing. We in the law academy owe a tremendous intellectual debt to historians, especially the Chicano Studies scholars, whose pioneering work on the Treaty has set the standard by which we evaluate the document's influence on law and policy regarding persons of Mexican ancestry in this country. [4] The historians have enriched our understanding of this most important of laws affecting U.S.-Mexico relations by offering at least three distinct ways of ascribing meaning to the document.

The first way that historians ascribe meaning to the Treaty is by what I shall call the traditional perspective: the notion that the Treaty is a sort of recorded deed of the biggest "land grab" in American history, [5] the crowning achievement of an unjust war incited and waged by a stronger, richer, whiter nation against its weaker, poorer, browner neighbor. [6] From the traditional perspective, the Treaty merely codifies as terms of surrender the frustrated diplomatic objectives that the United States went to war to achieve. So it is no surprise that American courts interpreting the Treaty issued decisions that, for example, tended to resolve doubts about the validity of Spanish and Mexican land titles against Mexican grantees and in favor of Anglo claimants. [7]

The second way that historians ascribe meaning to the Treaty is by what I shall call the revisionist perspective: the notion that the Treaty provided real protections for the civil and property rights of Mexicans, but that these protections were eroded by the cultural shock waves that rolled over land claimants when Mexico's continental-style civil law system clashed with the United States' Anglo-American common law tradition. [8] From the revisionist perspective, the tribunals that adjudicated Treaty rights generally were fair to Mexicans, and even produced significant results favoring them. If Mexicans lost their properties anyway, then factors other than the Treaty, or the institutions charged with interpreting it, were to blame.

The third way that historians ascribe meaning to the Treaty is what I shall call the reclamation perspective: the notion that the Treaty is a "living" document that not only guaranteed the human rights of displaced Mexicans in 1848, but also guarantees them in 1998. [9] From the reclamationist perspective, Treaty rights have been systematically ignored, or at least have lain dormant, for too long, but could be reclaimed by use of litigation and organizational tools to aid the descendants of the original Mexican settlers of the Southwest and their more recently arrived kin. [10] Thus the Treaty has been a kind of tableau upon which numerous Chicano Studies scholars have projected their hopes for vindicating a whole range of historic claims, including land grant recognition, civil rights, affirmative action, and even bilingual education.

Despite the blessings conferred by these historical perspectives, the dominance of Treaty discourse by historians has also been, in some cases, a curse. Like Melquiades's proclamation that "[s]cience has eliminated distance," the proclamations of traditionalists, revisionists, and reclamationists contain much insight--but also suffer from much oversimplification. Distance has not quite been eliminated. Nor has legal doctrine, whose role in informing, if not manipulating, the decisions of the courts and land commissioners who were charged with implementing Treaty rights is all too often misunderstood. Of course, explaining the more complex truths behind the law and its institutions is the province of law professors, whose participation in Treaty discourse is long overdue.

This article seeks to supplement our understanding of how the Treaty of Guadalupe Hidalgo became the legal document it is today by shedding light on the critical role that legal doctrine--especially the manipulation of that doctrine by legal actors--has played in its interpretation. To understand this role more precisely, I draw on two distinct, but related, themes from the burgeoning literature of Latino Critical ("Lat Crit") Legal Theory: the inherent indeterminacy of rules of law, and the tendency of the law to make Latinos invisible. In so doing, I attempt to build on the path-breaking, yet incomplete, work done by historians, and to develop the complexities that have informed the choices of lawgivers and legal institutions who framed the Treaty and its jurisprudence.

II. Lat Crit Theory: The Treaty of Guadalupe Hidalgo as Law

A. Indeterminacy

A wide range of legal thinkers, including legal realists, [11] pragmatists, [12] and critical legal scholars, [13] have argued that the law is indeterminate in the sense that legal materials--constitutions, treaties, statutes, and the court decisions interpreting them--often permit a judge to justify multiple outcomes to lawsuits. [14] The indeterminacy of the law has permitted jurists to manipulate legal doctrine to produce outcomes adverse to the interests of Latinos, especially Mexican Americans. George Martinez has pointed out that, in cases dealing with bilingual education, public accommodations, restrictive covenants, racial slurs, school desegregation, and, for my purposes, Spanish and Mexican land titles analyzed under the Treaty of Guadalupe Hidalgo, the text of the applicable legal rule was so general that the court, far from being "bound" by precedent to decide against the Mexican American litigant, "could have gone the other way." [15]

Traditionalists, revisionists, and reclamationists each discuss reported decisions on land titles under the Treaty. Whereas revisionists [16] typically attribute Anglo victories and Mexican defeats to the contrast between "exact, clear, and precise" rules of Anglo-American land and the "vagueness" of corresponding Mexican laws, and whereas traditionalists [17] contend that subsequent legislation enacted by Congress to implement the Treaty "was in reality a violation" of the document, reclamationists argue that courts helped make the Treaty "meaningless over the past century and a half." [18] As I demonstrate with the aid of Professor Martinez's work, the truth is more complex. Neither traditionalists, revisionists, nor reclamationists fully appreciate the role that indeterminacy played in shaping the outcomes of cases in which Treaty rights were litigated. I offer two examples: (1) the significance of deleting Article X of the original Treaty and substituting for it the Protocol of Queretaro, and (2) the imp lementation of Treaty rights in the California Land Act of 1851.

1. Article X and the Protocol of Queretaro

The Mexican and American representatives who negotiated the Treaty "knew well that most of the Mexican citizens occupying land grants in the ceded territories did not have perfect title to their lands and that the majority were still in the process of fulfilling the requirements of Mexican law." [19] In large measure, this was due to changes in the enforcement of land grant policy, if not changes in the policy itself, that accompanied the instability of Mexican federal governments in the years after Mexico broke from Spain in 1821; the notorious slowness of the Mexican bureaucracy; and of course the individual hardships that attended the citizens of the sparsely populated northern territories of Arizona, California, New Mexico, and Coahuila Texas who tried to follow the rules drawn up by unseen authorities in faraway Mexican capitals. [20] Nowhere were these problems more serious than in Texas, where from 1836 to 1845 the short-lived independent Republic of Texas declared so many lands to be in the public dom ain and purported to grant them to soldiers, settlers, and speculators, thereby creating clouds over Spanish and Mexican land titles.

Anticipating litigation over who owned what in the soon-to-be-ceded territories, Treaty negotiators working in Mexico drafted Article X, which read:

All grants of land made by the Mexican government or by the competent authorities, in territories previously appertaining to Mexico ... shall be respected as valid, to the same extent if said territories had remained within the limits of Mexico. But the grantees of Texas ... [who] may have been prevented from fulfilling all the conditions of their grants, shall be under the obligation to fulfill the said conditions within the periods limited in the same respectively; such periods to be now counted from the date of the exchange of ratifications. [21]

The language "respected as valid, to the same extent if said territories had remained within the limits of Mexico" would have made it clearer that Mexican civil law, not Anglo-American common law, governed the adjudication of land titles. And the language giving more time to "the grantees of Texas" to perfect their claims would have extended the protections of the Treaty to TeXADo claimants, many of whom had fled Texas for Mexico after Anglos declared independence in 1836. But the administration of President James K. Polk would have none of Article X. At President Polk's insistence, the Senate deleted Article X before ratifying the Treaty. To add intrigue to the proceedings, upon a motion by Senator Sam Houston of Texas, the chamber voted to conduct its deliberations in secret; as a result, there are no official records of the debate. [22]

Secretary of State James Buchanan summarized the administration's views on Article X when he said that if it were part of the Treaty "it would be a mere nullity" and "the Judges of our courts would be compelled to disregard it." [23] Insisted Buchanan:

It is to our glory that no human power exists in this country which can deprive the individual of his property without his consent and transfer it to another. If the grantees of lands in Texas, under the Mexican government, possess valid titles, they can maintain their claims before our courts of justice. [24]

Officials of the Mexican government sought clarification of what was intended by the Senate's deletion of Article X and modification of other parts of the Treaty. [25] The result was a document called the Protocol of Queretaro, which provided, among other things, that in deleting Article X the U.S. government "did not in any way intend to annul grants of land made by Mexico in the ceded territories." [26] The Protocol was signed by U.S. and Mexican representatives at Queretaro, where the Mexican government had set up provisional headquarters to escape the U.S. troops that occupied Mexico City during the Treaty negotiation and ratification processes.

But the Polk administration did not like the Protocol any better than it had liked Article X. Secretary Buchanan declared that the document had "no value"; it was merely a record of conversations between diplomats and lacked the force or effect of law. [27] President Polk kept the Protocol secret and did not send it along with the other Treaty documents to the Senate for the ratification vote. When political opponents discovered the Protocol some six months after the president had declared the ratification process to be completed, there ensued a vigorous debate over whether the document had restored the protections of deleted Article X. Democrats in the administration maintained that it had not; Whigs in Congress, not to mention the Republic of Mexico, maintained that it had. In the end, the Polk administration's position became the official U.S. view and created a dispute with Mexico that persists to this day. [28]

The twin ironies of Buchanan's earlier statement should not be missed. The first irony, as noted in the analysis of Supreme Court decisions interpreting land grant cases presented above, is that even though "no human power exists in this country which can deprive the individual of his property without his consent and transfer it to another," some form of power managed to make this happen all the same. As I explain below, between 1854 and 1930, Mexican litigants or their heirs prevailed in just one-quarter of all cases presenting land title claims decided by the Court during the period. The opinions in these cases demonstrate that, far from being "exact, clear, and precise," U.S. land law in the absence of Article X was so indeterminate as to permit tribunals "to have gone the other way."

For example, in 1865, the Court held that tide to church lands at Mission San Jose, California, had passed to the claimant by various mesne conveyances from Catholic Bishop Joseph Alemany of Monterey. [29] The result was curious because Bishop Alemany's claim had been based on "ecclesiastical law" and "actual and undisturbed possession" from 1797 through the date of the U.S. conquest, rather than on any "deed or writing" from Spanish authorities of the type that was so important to the courts in other cases. [30] Yet during the same year, in a separate case, the Court held that tide to a tract in Northern California had passed into the public domain even though Maria de Valencia and other heirs of Teodora Peralta had produced the original expediente containing all papers necessary to document a grant by then-Governor Pio Pico. [31] The trouble seemed to be the claimant's failure adequately to explain why the expediente was found in her possession rather than in the official archives, which "contained no reco rd or trace whatever" of Pico's grant to Peralta. [32] According to the Court, following passage of the California Land Act of 1851, which prescribed the procedures by which Spanish and Mexican grantees were to seek patents confirming their tides, there "commenced a struggle ... to flitter away the act of Congress, and substitute parol evidence for record evidence. [But w]e have refused to allow oral testimony to prevail when archive evidence was necessary [under Mexican law]." [33]

The second irony is that, despite Buchanan's suggestion that "the grantees of lands in Texas ... [could] maintain their claims before our courts of justice," TeXADos were not permitted to litigate those claims under the Treaty for over 50 years. In 1856, just two years after the first Treaty cases raising land claims reached the Court, the Justices held that the extant provisions of the Treaty--specifically Article VIII, which deals with the property rights of Mexicans "not established" within the ceded territories--"did not refer to any portion of the acknowledged limits of Texas." [34] Thus were Manuel and Pilar Saviego advised that the Treaty of Guadalupe Hidalgo had nothing to do with their right to inherit two and a half leagues of land in Goliad and Refugio Counties from Pilar's mother Gertrudis Barrera. According to the Court, Barrera, who had acquired the land in 1834, "abandoned" it by relocating to Matamoros, Tamaulipas, to escape the Texas rebellion in 1835, and dying there in 1842. [35]

It is evident that the text of the Treaty did not dictate the outcomes in these cases. In deciding any of them, the Supreme Court could have "gone the other way." That it did not reflects the indeterminacy that the United States insisted upon before the Senate would ratify the Treaty of Guadalupe Hidalgo.

2. The California Land Act of 1851

Article VIII of the Treaty sought to protect the property rights of Mexicans who had left or otherwise were "not established" in the ceded territories. It provided:

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. [36]

Similarly, Article IX of the Treaty sought to protect the property rights of Mexicans who remained in the ceded territories and who became U.S. citizens rather than "preserve the character of citizens of the Mexican Republic." It provided:

The Mexicans who ... 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 according to the principles of the Constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property.... [37]

In the ceded territories, California became the first battleground over which Mexican and Anglo land claimants fought to sort out their respective rights. This prominence was due in no small measure to the discovery there of gold, which quickly attracted thousands of Anglo-American and other settlers, and in just two years' time transformed California into our thirty-fifth state. Even before these events, the leading opponent of Treaty ratification in the Mexican Congress had called Alta California "our priceless flower" and "our inestimable jewel." [38] At any rate, Mexican grants encompassed over 10 million acres and included "some of the best land suitable for development." [39]

As the Supreme Court tells the tale, Congress, "[t]o fulfill its obligations" to Mexican property holders under Articles VIII and IX, and to provide for "an orderly settlement of Mexican land claims," [40] passed the California Land Act of 1851. [41] The Act set up a "comprehensive settlement claims procedure": [42] a board of land commissioners was established to decide the rights of "each and every person claiming lands in California by virtue of any right to title derived from the Spanish or Mexican government"; [43] a claimant was required to present her claim within two years (a period later extended to five years) or be forever barred from asserting it; [44] the board was to decide the validity of any claim according to the "laws, usages, and customs" of Mexico; [45] a decision of the board could be appealed to federal district court for a de novo determination of rights; [46] final appellate jurisdiction was vested in the Supreme Court; [47] and the final decree of the board, or any patent issued unde r the Act, constituted a conclusive adjudication of the rights of the claimant as against the United States, but not as against the interests of a third party holding superior title. [48]

Traditionalists, [49] and to a certain extent, reclamationists, [50] regard the California Land Act as "in reality a violation of the Treaty of Guadalupe Hidalgo," "an instrument of evil," and the basis for "needless persecution of the grant holders" by representatives of the federal government and by the district courts. Their views seem to be based mainly on a layman's reading of the U.S. Constitution's Supremacy Clause, which declares that "all Treaties [of the United States] shall be the supreme Law of the Land." [51] The reasoning goes something like this: if the Treaty had already conferred property rights on Mexican land grant holders, then Congress should not have created obstacles to the enforcement of these rights by enacting a statute that, among other things, established a board of land commissioners with the power to screw things up. [52] Under the Act's procedures, including its preservation of appeals to the federal courts, claimants were "considered guilty until they had proved them innocent." [53] Hubert Howe Bancroft, whose multi-volume history of California remains a standard in the field, thought "it would have been infinitely better to confirm promptly all the claims, both valid and fraudulent," [54] than to put California land grant holders to the test of litigation before the board and the courts.

Of course, revisionists reject these conclusions. Paul Gates, who has written extensively about U.S. land policy in general and the treatment of California land claims in particular, suggests that the California Land Act actually worked a much-need reform of the inefficient procedures that had been used to patent land titles in previously acquired territories, including Florida, Illinois, Louisiana, and Missouri. [55] Professor Gates also defends both the Act and the judges who interpreted it as more than fair to the property interests of Mexicans. [56] Taking on Bancroft and other traditionalists, he writes: "Such denunciation of the Land Act of 1851 and of the subsequent history of adjudication under it reveals an astonishing failure to appreciate the careful protection Anglo-Saxon American law has given private property." [57]

Neither the traditionalists, the reclamationists, nor the revisionists have it quite right. As for the view espoused by traditionalists and reclamationists that the Treaty makes the California Land Act of 1851 illegitimate, at least two bodies of law governing the enforcement of treaties in the U.S. courts suggest that there is plenty of room for disagreement: the "later in time" doctrine and the law of "self-executing" treaties.

The "later in time" doctrine holds that, although U.S. treaties are the supreme law of the land, they nevertheless must give way to other supreme laws of the land with which they conflict, such as congressional legislation, that are enacted after the treaty is ratified. [58] So even if we assume that the California Land Act of 1851, with its short statute of limitations and other traps for the unwary, is in actual conflict with Articles VIII or IX, we should not necessarily conclude that the Act is in reality a violation of the Treaty of Guadalupe Hidalgo.

The law of "self-executing" treaties, which "has been correctly described as 'the most confounding [doctrine] in treaty law,"' [59] is even more troublesome for traditionalists and reclamationists. This "law" [60] distinguishes between self-executing treaties, which may be enforced immediately in federal court, and non-self-executing treaties, which are executory in nature and must first be implemented by legislation. [61] Although treaty law experts unanimously agree that a non-self-executing treaty "is unavailing to the litigant relying on it in court," [62] they sharply disagree, as do the courts, over how to tell the difference between a self-executing and a non-self-executing treaty. [63] Even Chief Justice John Marshall, who first elaborated the self-execution doctrine in 1829, changed his mind in 1833 about whether the identical language in the same treaty governing Spanish land claims in Florida was self-executing or non-self-executing. [64] There is no reason to suppose that the task would be any ea sier in the case of the Treaty of Guadalupe Hidalgo.

As for the view espoused by revisionists that the Act worked a welcome reform, or that it was fair both on its face and as applied, a few scratches reveal some serious shortcomings just below the surface. The Act certainly represented an improvement over the pork-barrel politicking that characterized the confirmation or rejection of land tides prior to 1851. But surely Professor Gates places too much faith in civil litigation when he calls the statute "a major step forward in the adjudication of land claims" because it "placed full authority for their final determination in the courts." [65] The very structure of the Act ensured that it would take a claimant years of expensive litigation to obtain his patent. In this regard, the short statute of limitations and the lack of Spanish-speaking agents available to assist the board with its work interpreting Mexican statutes and documents, as others have noted, [66] were the least of claimants' problems. Instead, the Act's true evil lay in its formality, which ens ured delay, which in turn ensured costly litigation. To negotiate the three levels of adjudicatory apparatus (board, district court, and Supreme Court), a claimant could ill afford to proceed without counsel, who often took a mortgage in the disputed tide as part of the fee. And even if a claimant successfully completed this obstacle course, the patent was conclusive only as to the United States; it did not quiet tide in the holder, who could be exposed to yet more lengthy, and potentially unsuccessful, litigation with third party claimants in the state courts. [67] Finally, the value of California lands sharply increased with the influx of settlers, which drove up not only land prices but also the property taxes of grantees and their heirs. Small wonder, as Professor Gates notes, that:

[i]t was to take years before the last claims were confirmed. By that time some owners or their heirs either had lost their rights through tax delinquency, mortgage foreclosures, or intra-family litigation, or the tides bad been fragmented into so many parts as to make division and sale of the land difficult. [68]

Moreover, the key example offered by Professor Gates to support the notion that the judiciary "leaned so far in the direction of leniency" so as to demonstrate "the greatest readiness ... to accept any substantial evidence" [69] to confirm Mexican grants--the case of American pioneer and Bear Flag revolt leader John C. Fremont [70]--supports rather than undermines the notion that Mexican grantees suffered discrimination in tribunals adjudicating Treaty rights. On the one hand were claimants like Fremont, an Anglo who possessed questionable papers documenting dubious tide. Still the Supreme Court gave him the benefit of the doubt and confirmed his patent. [71] On the other hand were claimants like Dominga Dominguez, a Mexican who possessed unquestionable papers documenting perfect title. Yet the Court brushed aside her claim because she had failed to make a timely application for a patent with the board of land commissioners, and refused to eject the French and Anglo squatters who had overrun her lands east of Mission San Gabriel, California. [72]

In short, the indeterminate nature of the Treaty, and U.S. laws purporting to implement it, could be manipulated to promote the claims of grant holders when it suited the courts and to extinguish them when it did not.

B. Invisibility

Traditionalists view the adjudication of Spanish and Mexican land grant claims by U.S. courts as an unmitigated disaster. In California, "most Californio landholders lost their lands because of the tremendous expense of litigation and legal fees." [73] In New Mexico and Texas, similar fates awaited Mexican grantees. [74] Although there were periods during which the courts seemed more disposed toward the claims of Mexican grantees and their heirs, by 1930 Mexican Americans, through legal defeat, fraud, or financial exhaustion, had been all but wiped out as a landholding class in the Southwestern United States. Their transformation from masters into servants had been completed, and set the stage for a new chapter in U.S.-Mexico relations: the exploitation of low-wage, migratory Mexican and Mexican American labor. [75]

But revisionists view adjudication as having been a great success for persons who asserted tide under Spanish and Mexican land grants. For example, from 1852 to 1854, the first three years that the board of land commissioners was in business, 292 claims were confirmed and 103 claims were rejected--a winning percentage of nearly 74 percent. [76] Revisionists assign blame for the occasional failures on "the careless manner in which owners had handled their tides." [77] And failure, when it occurred, was an equal opportunity outcome; by the time that the board had finished its work in 1857, 43 claims asserted by non-Mexicans, covering over 584,000 acres, had been rejected. [78] With some measure of satisfaction, Professor Gates points out that 346 of the 812 claims presented to the board were submitted by non-Mexicans: Americans, English, Scots, Irish, Germans, and members of other nationalities. [79] Among the "poor Californians" who lost all or part of their litigated claims, he notes, were early California e mpire builders such as Thomas O. Larkin, John C. Fremont, and even John Sutter, at whose mill the gold that started all the trouble was first discovered. [80]

All of which proves precisely the point I wish to make here: that there is more than one way for the law and its institutions to make Mexicans "disappear," to become invisible. In post-conquest California, Mexicans became conspicuous by their absence among not only the landholding class but also the land claimant class. Why this was so is surely due to a complex combination of many factors, including fraud by non-Mexicans, carelessness by California grantees and their heirs, and the financial distresses mentioned earlier. But the fact of their invisibility, which I have explored elsewhere, [81] is noteworthy all by itself and deserves further study. It is one of the great curiosities of life in California, as it is throughout the Southwest, that the names of the former grantees Alvarado, Bandini, Carrillo, Castro, Cota, Estrada, de la Guerra, Lugo, Martinez, Ortega, Pico, and Vallejo, to name but a few [82] are today affixed to cities, streets, and waterways, but no longer to the recorded deeds of the lands in which these points of interest are located. At least one reclamationist has decried this "invisibility" of Mexican Americans for whom the protections of the Articles VIII and IX of the Treaty of Guadalupe Hidalgo were supposedly drafted. [83]

One need look no further than the Supreme Court's docket to find Mexicans becoming invisible. Accordingly, I attempt to answer two related questions about Treaty cases: (1) who won, and lost, land grant claims; and more importantly, (2) who litigated them?

1. Who won, and lost, land grant claims?

From 1854 to 1930, the Supreme Court published decisions in at least 91 cases raising the question whether the Spanish or Mexican land grant of one or more claimants should be upheld or not upheld under the Treaty of Guadalupe Hidalgo and its implementing legislation. [84] Although the litigants in these cases included individuals, families, partnerships, railroads, utilities, land and mining companies, and government agencies, I have classified them into just two racial groups: "Anglos," which includes all non-Mexican persons, entities, or owners of entities; and "Mexicans," which includes Mexicans, Mexican Americans, and Mission Indians and other Indian groups. [85] The Court decided the cases of these groups as set forth in Table 1:

Table 1 shows that the 91 cases produced 75 total decisions either upholding or not upholding the grant; the remaining 16 cases produced no decision as to the validity of the grant. Table 1 also shows that, in the 75 decisions, the Court upheld 41 grants but did not uphold 34 others. These outcomes did not seem to differ markedly by race. As to the 41 grants that were upheld, Anglos won 52.4 percent while Mexicans won 47.6 percent--a fairly close spit. As to the 34 grants that were not upheld, Anglos lost 44.3 percent while Mexican lost 52.7--a slightly poorer set of outcomes for Mexicans, but given the sample spread of only 3 cases, not outrageously so.

On the surface, then, Table 1 would seem to support the revisionist view: when we examine who won, or lost, land grant cases decided under the Treaty, Anglos did not fare substantially better than Mexicans, and Mexicans did not fare substantially worse than Anglos.

2. Who litigated land grant claims?

Focusing on the 75 cases in which the Court reached a decision as to the validity of the grant, Table 2 summarizes who litigated these claims:

Table 2 shows that just over half of all land grant claims reaching the Supreme Court were asserted by Mexicans. On the surface, this fact does not seem to be remarkable; rather, it seems to suggest that the Court was even-handed in its treatment of Anglo and Mexican claimants. But upon closer inspection, this development must be seen as truly curious. Surely the overwhelming majority of original grantees were Mexican. In fact, by Professor Gates' count, at least 73.7 percent of all claimants who filed claims with the board of land commissioners in California alone were Mexican citizens or former Mexican citizens. [86] Therefore, we should expect to find that the overwhelming number of the claimants litigating in the Supreme Court were Mexican. Instead, what we find is that just half of them were Mexican; the other half were Anglo. What happened to the Mexicans? Apparently, they became invisible.

When the territories that now constitute the states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and parts of Wyoming were ceded to the United States, some 120,000 Mexicans occupied scores of millions of square miles of granted lands. How odd it is that, in the decades following annexation, so few Mexican claimants participated, much less succeeded, the litigation process required to protect those claims.

Ill. Conclusion

Until 1998, the history academy enjoyed 150 years of solitude in the study of the Treaty of Guadalupe Hidalgo. To be sure the traditional, revisionist, and reclamation perspectives have enriched our understanding of the Treaty and its interpretation. We in the law academy are especially indebted to Chicanos Studies scholars, whose pioneering work on the Treaty has reinforced its relevance even today. Nevertheless, "science has not yet eliminated distance"; each of these views tends to oversimplify the complex role that law and legal institutions have played in the adjudication of Treaty rights. The time is long overdue for the law academy to fill this void. I hope this Article, by drawing on the themes of indeterminacy and invisibility from Lat Crit Theory, contributes to the project of doing so.

(*.) Many thanks are due to the folks who inspired this project, especially Rudy Acuna, Arturo Gandara, Regan Grilli, Richard Griswold del Castillo, Cruz Reynoso, Leigh Taylor, and Russ Trice, and to the folks who reviewed and commented on earlier drafts, especially Joe Baca, Kevin Johnson, Guadalupe Luna, George Martinez, and Carlos Vazquez. Generous financial support was provided by the Trustees of Southwestern University School of Law. Valuable research assistance was offered by Matthias Wagener (Class of 1999).

Notes

(1.) GABRIEL GARCIA MARQUEZ, ONE HUNDRED YEARS OF SOLITUDE (Harper Collins 1st ed. 1991).

(2.) See, e.g., 6 HUBERT HOWE BANCROFT, HISTORY OF CALIFORNIA (1888); MALCOLM EBRIGHT, LAND GRANTS AND LAWSUITS IN NORTHERN NEW MEXICO (1994); PAUL GATES, LAND AND LAW IN CALIFORNIA: ESSAYS ON LAND POLICY (1991); RICHARD GRISWOLD DEL CASTILLO, THE TREATY OF GUADALUPE HIDALGO: A LEGACY OF CONFLICT (1990); DOUGLAS MONROY, THROWN AMONG STRANGERS: THE MAKING OF A MEXICAN CULTURE IN FRONTIER CALIFORNIA (1990); JIM BERRY PEARSON, THE MAXWELL LAND GRANT (1961); LEONARD PITT, THE DECLINE OF THE CALIFORNIOS (1970); WILLIAM W. ROBINSON, LAND IN CALIFORNIA (1948); AARON M. SAKOLSKI, THE GREAT AMERICAN LAND BUBBLE (1932); WILLIAM W. MORROW, SPANISH AND MEXICAN PRIVATE LAND GRANTS (1923); Paul W. Gates, The California Land Act of 1851, 50 CALIF. HIST. Q. 395 (1971); Rodolfo O. de la Garza & Karl Schmitt, Texas Land Grants and Chicano-Mexican Relations: A Case Study, 21 LAT. AM. RES. REV. 123 (1986); Robert D. Shadow & Maria Rodriguez-Shadow, From Repatriation to Partition: A History of the Mora Land Grant, 1835-1916, 70 N .M. HIST. REV. 257 (1995).

(3.) See Federico M. Cheever, A New Approach to Spanish and Mexican Land Grants and the Public Interest Doctrine: Defining the Property Interest Protected by the Treaty of Guadalupe Hidalgo, 33 UCLA L.REV. 1364 (1986); Richard D. Garcia & Todd Howland, Determining the Legitimacy of Spanish Land Grants in Colorado: Conflicting Values, Legal Pluralism, and Demystification of the Sangre de Cristo/Rael Cases, 16 CHICANO-LATINO L. REV. 39 (1995); Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 NAT. RESOURCES L.J. 1039 (1985); Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M. L. REV. 201 (1996); Guadalupe T. Luna, Chicana/o Land Tenure in the Agrarian Domain: On the Edge of a Naked Knife, 3 MICH. J. RACE & L. 39 (1998); Guadalupe T. Luna, "Agricultural Underdogs" and International Agreements: The Legal Context of Agricultural Workers Within the Rural Economy, 26 N.M. L. REV. 9 (1996); Peter Reich, The "Hispanic" Roots of Prior Appropriation in Arizona, 27 ARIZ. ST. L.J. 649 (1995).

(4.) See Kevin R. Johnson & George A. Martinez, Three Cheers for Chicana/o Studies and the Emergence of Lat Crit Theory: Some Thoughts on the Roots of a Movement (based on papers presented at 1998 Sixth Annual Western Law Teachers at Color Conference, sponsored by Universiry of Oregon) (1998).

(5.) Lalo Lopez, Legacy of a Land Grah, HISPANIC MAO., Sept. 1997, at 23.

(6.) See, e.g., GRISWOLD DEL CASTILLO, supra note 2, at xii ("With an arrogance born of superior military, economic, and industrial power, the United States virtually dictated the terms of the settlement. The treaty established a pattern of inequality between the two countries, and this lopsided relationship has influenced Mexican American relations ever since.").

(7.) See, e.g., 6 BANCROFT, supra note 2, at 576-81; [cfs]John Walton Caughey, California 309 (1964);ROBERT GLASS CLELAND, HISTORY OF CALIFORNIA: THE AMERICAN PERIOD 411-12 (1922);JOSIAH ROYCE, CALIFORNIA FROM THE CONQUEST IN 1846 TO THE SECOND VIGILANCE COMMITTEE IN SAN FRANCISCO 360-83 (1948) [cfn].

(8.) See, e.g., GATES, supra note 2, at 51 (Anglo-American law respecting land titles is "exact, clear, and precise and does not allow for the vagueness of the Mexican land system in California."); see also MORROW, supra note 2, at 15; [cfs]Robinson, supra note 2, at 109 (1948).

(9.) See, e.g., ARMANDO B. RENDON, CHICANO MANIFESTO: HISTORY AND ASPIRATIONS OF THE SECOND LARGEST MINORITY 81 (25th Anniversary ed., Ollin & Associates 1996) (1971). ("The Treaty of Guadalupe Hidalgo is the most important document concerning Mexican Americans that exists. From it stem specific guarantees affecting our civil rights, language, culture, and religion."); see also PATRICIABELL BLAWIS, TIJERINA AND THE LAND GRANTS 37 (1970); RICHARD GARDNER, GRITO! REIES TIJERINA AND THE NEW MEXICAN LAND GRANT WARS OF 1967 (1970); Fernando Chac6n G6mez, The Intended and Actual Effects of Article VIII of the Treaty of Guadalupe Hidalgo: Mexican Treaty Rights Under International and Domestic Law[cfn] (unpublished Ph.D. dissertation), in Griswold del Castillo, supra note 2, at 145-46.

(10.) See Lopez, supra note 5, at 24.

(11.) See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 7 (1936); KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 122-23 (1962); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 833 (1935); Roscoe Pound, The Call for a Realist Jurisprudence, 44 Harv. L. Rev. 697, 707 (1931).

(12.) See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 23 (1990).

(13.) See, e.g., DAVID A. KAIRYS, THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 140, 160-61 (1982); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 819 (1983).

(14.) See, e.g., H.L.A. HART, THE CONCEPT OF LAW 132 (1961).

(15.) George A. Martinez, Legal Indeterminacy, Judicial Discretion, and the Mexican American Litigation Experience: 1930-1980, 27 U.C. DAVIS. L. REV. 555, 557-60 (1983); see, e.g., Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 85 CAL. L. REV. 1347, 1385-86 (1997) (discussing role that Tide VII indeterminacy plays in decisions adjudicating challenges to "English-only" as national origin discrimination); see also George A. Martinez, Some Thoughts on Law and Interpretation, 50 SMU L. REV. 1651, 1653-62 (1997) (discussing distinctive role that interpretation plays in law).

(16.) Gates, supra note 2, at 51.

(17.) 6 BANCROFT, supra note 2, at 576-81.

(18.) See, e.g., CHACON GOMEZ, supra note 9, at 197, in GRISWOLD DEL CASTILLO, supra note 2, at 145.

(19.) GRISWOLD DEL CASTILLO, supra note 2, at 48.

(20.) Id.

(21.) 5 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA 242 (Hunter Miller ed., U.S. Gov't Printing Off. 1937).

(22.) Exec. Doc. No. 52, 30th Cong., 1st Sess. 9 (1848).

(23.) 5 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA, supra note 21, at 255.

(24.) Id.

(25.) Indeterminacy was also injected into the civil and property rights law affecting Mexicans who chose to remain in the U.S. and become citizens. Originally, in Article IX, Treaty negotiators agreed on the following language:

The Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding Article, shall be incorporated in the Union of the United States as soon as possible.... In the meantime, they shall be maintained and protected in the enjoyment of their liberty, their property, and the civil rights now vested in them according to the Mexican laws. With respect to political rights, their condition shall be on an equality with that of the inhabitants of the other territories of the United States.

Treaty of Peace Friendship, Limits and Settlement Between the United States of America and the Mexican Republic, Feb. 2, 1848, U.S.-Mex., art. IX, 9 Stat. 922, 929; hereinafter Treaty of Guadalupe Hidalgo, reprinted in 9 TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA, 1776-1949, 791, 797 (Charles I. Berans ed., 1972).

(26.) Protocol of Queretaro, art. 2, reprinted in GRISWOLD DEL CASTILLO, supra note 2, at 182; see also Geoffrey Mawn, The Treaty of Guadalupe Hidalgo or the Protocol of Queretaro?, 14 J. of the West, 57, 58 (1975) (discussing Protocol and its background in detail).

(27.) GRISWOLD DEL CASTILLO, supra note 2, at 54; Mawn, supra note 26, at 59.

(28.) GRISWOLD DEL CASTILLO, supra note 2, at 54; Mawn, supra note 26, at 59.

(29.) Beard v. Federy, 70 U.S. (3 Wall.) 478, 489 (1865).

(30.) Id. For my understanding of both the tide confirmation process and the formalities of Spanish and Mexican land law that are an essential component of that process, I am indebted to Professor Luna, whose thorough scholarship on the Treaty has made her its leading expert in the law academy. See, e.g., Luna, supra note 3.

(31.) Peralta v. United States, 70 U.S. (3 Wall.) 434, 440 (1865).

(32.) Id. at 435.

(33.) Id. at 440.

(34.) McKinney v. Saviego, 59 U.S. (18 How.) 235, 240 (1855).

(35.) Id. at 237.

(36.) Treaty of Guadalupe Hidalgo, art. VIII, reprinted in 9 TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA, 1776-1949, supra note 25, at 796.

(37.) Treaty of Guadalupe Hidalgo, supra note 25, art. IX, codified at 9 Stat. 922 (1948), reprinted in 9 TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA, 1776-1949, supra note 25, at 797.

(38.) Manuel Crescendo Rejon, Observations on the Treaty of Guadalupe Hidalgo, in PENSAMIENTO POLITICO 127, 133 (UNAM ed., 1968), quoted in GRISWOLD DEL CASTILLO, supra note 2, at 50 & n.16.

(39.) Summa Corp. v. California ex rel. State Lands Commission, 466 U.S. 198, 202 (1984).

(40.) Id. at 203.

(41.) Act of Mar. 3, 1851, ch. 41, 9 Stat. 632 (1851).

(42.) Summa Corp., 466 U.S. at 203.

(43.) Act of Mar. 3, 1851, ch. 41, [ss] 8.

(44.) Id. [ss] 13; see, e.g., Botiller v. Dominguez, 130 U.S. 238, 246 (1889).

(45.) Act of Mar. 3, 1851, ch. 41, [ss]11.

(46.) Id [ss]9; see, e.g., Grisar v. McDowell, 73 U.S. (6 Wall.) 363 (1867).

(47.) Act of Mar. 3, 1851, ch. 41, [ss]10.

(48.) Id. [ss]15.

(49.) See 6 BANCROFT, supra note 2, at 576-81; CAUGHEY, supra note 7, at 309; CLELAND, supra note 7, at 411-12; ROYCE, supra note 7, at 360-83.

(50.) See, e.g., RENDON, supra note 9, at 81 (calling upon Chicanos to learn of the "exact processes by which the Treaty of Guadalupe Hidalgo was made meaningless over the past century and a half"); Chacon Gomez, supra note 9, at 197 (contending that, due to New Mexican judges' ignorance of local tradition, "the century-old concept of flexibility of the common law may indeed have been 'bastardized'"), quoted in GRISWOLD DEL CASTILLO, supra note 2, at 145.

(51.) U.S. Const. art. VI, cl. 2.

(52.) See generally GRISWOLD DEL CASTILLO, supra note 2, at 76-77.

(53.) Bancroft, supra note 2, at 576-577.

(54.) Id. at 579.

(55.) See Gates, supra note 2, at 395, 398. Until 1851, the usual procedure for testing the validity of land claims in newly acquired U.S. territories, including the former French territories of the Louisiana Purchase and the former Spanish territories of Florida, was to establish a board of land commissioners to pass upon claimants' written and oral documentation in the first instance but to reserve for Congress the job of confirming or rejecting titles in the final analysis. Too often, Congress played its role inefficiently or not at all. At the urging of persistent lobbyists, individual bills to confirm or reject titles were passed and sometimes repealed; committees of representatives spent "countless hours" sifting through documents they often did not read or understand; Congress sometimes resorted to "blanket confirmations" of smaller claims that received no serious consideration. Concluded Professor Gates: "By 1851 experience had shown the advisability of placing the burden of adjudication on the court s rather than on Congress." Id. at 397-98.

(56.) 1f anything, Professor Gates argues, the courts gave Mexican grantees the benefit of the doubt. He reads the opinions of Justice Stephen J. Field, the great exponent of liberty and property rights under the Fourteenth Amendment, and himself a California lawyer, as disregarding Mexican law when doing so would favor the claimant. He also singles out Judges Ogden Hoffman and I.S.K. Ogier, two of Justice Field's colleagues on the federal district bench in Californian, for their "leniency" toward the claims of grant holders. See Id. at 402, 405.

(57.) Gates, supra note 2, at 405.

(58.) See Klein, supra note 3, at 217; see also, e.g., Ainsa v. Arizona & N.M. RR. Co., 175 U.S. 76, 83-84 (1899); United States v. Sandoval, 167 U.S. 278, 293-94 (1897); California Power Works v. Davis, 151 U.S. 389, 394-95 (1894); but see LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 156-57, 163-64 (1971) (acknowledging rule but challenging its legitimacy).

(59.) Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1121 (1992) (quoting United States v. Postal, 589 F.2d 862, 876 [5th Cir. 1979], cert. denied, 444 U.S. 832 [1979]).

(60.) Professor Vazquez has explained that the sometimes incoherent law of self-executing treaties actually consists of four distinct "doctrines" that are "masquerading as one." Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695, 695 (1995).

(61.) See Vazquez, supra note 59, at 1117.

(62.) Id at 1121.

(63.) See Id. at 1117-23.

(64.) Compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 310, 314 (1829) (rejecting treaty-based claim to title on ground treaty merely provided that Spanish grants "shall he ratified and confirmed") (emphasis added), with United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833) (embracing treaty-based claim to title on ground Spanish text of treaty provided such grants were to "remain ratified and confirmed") (emphasis added). Neither Article VIII nor Article IX of Treaty of Guadalupe Hidalgo even uses words self-executing terms "ratified" or "confirmed," but non-self-executing term "shall be" appears several times).

(65.) Gates, supra note 2, at 398.

(66.) See, e.g., George A. Martinez, Dispute Resolution and the Treaty of Guadalupe Hidalgo: Parallels and Possible Lessons for Dispute Resolution Under NAFTA, 5 Sw. J. of L. & Trade 147 (1998),

(67.) [cfi] See, e.g., Phillips v. Mound City Land &Water Ass'n, 124 U.S. 605, 610-12 (1888) (dismissing for want of a federal question under California Land Act of 1851 an action for partition brought by one private claimant against another in state court).

(68.) Gates, supra note 2, at 398.

(69.) Id. at 404.

(70.) Fremont v. United Stares, 58 U.S. (17 How.) 542 (1855).

(71.) Id. at 565.

(72.) Botiller v. Dominguez, 130 U.S., at 255.

(73.) GRISWOLD DEL CASTILLO, supra note 2, at 73-74.

(74.) Id. at (78.), 83-84.

(75.) See, e.g., JUAN GOMEZ-QUINONES, MEXICAN AMERICAN LABOR, 1790-1990 45 (1994); MARY ROMERO, MAID IN THE U.S.A. 9-10 (1992); Luna, Agricultural Underdogs, supra note 3, at 14-15. For a general discussion, see RODOLFO ACUNA, OCCUPIED AMERICA (3d ed. 1988).

(76.) Gates, supra note 2, at 401-02.

(77.) Id. at 398.

(78.) Id. at 408.

(79.) Id.

(80.) Id. at 408, 410.

(81.) See Cameron, supra note 15, at 1372-73.

(82.) See Gates, supra note 2, at 408.

(83.) Chacon Gomez, supra note 9, at 197, in GRISWOLD DEL CASTILLO, supra note 2, at 145. The "invisibility" of Latinos in many walks of American life is a theme that runs strongly in the critical literature of the academies of both history, see, e.g., LA RAZA: FORGOTTEN AMERICANS (Julian Samora ed., 1966); George I. Sanchez, Forgotten People (1967), and law, see, e.g., Kevin R. Johnson, Los Olvidados: Images of the Immigrant Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. Rev. 1139; Juan F. Perea, Los Olvidados: on the Making of an Invisible People, 70 NYU L. Rev. 965 (1995).

(85.) With some trepidation, I have assigned litigants to these categories based on their surnames, and to a lesser degree, their descriptions, as set forth in the Supreme Court's reported decisions. I am well aware that this method has its limits; for example, it could exclude many persons of Mexican heritage like me. See, e.g., Cameron, supra note 15, at n. 73. But given the limited data provided by these cases and their historical distance from us, I am satisfied that this method offers a useful sketch of who the litigants were.

(86.) See Gates, supra note 2, at 408 (noting that 133 of 812 claims presented to board of land commissioners were brought by naturalized Mexican, and presumably Anglo, citizens).

Appendixes

United States Supreme Court Cases Regarding Land Claims Under the Treaty of Guadalupe Hidalgo, 1854-1940

Appendix A

Cases Upholding Anglos' Land Claims

1. Beard v. Federy, 3 Wall. 400 (1864)

2. Cessna v. United States, 169 U.S. 165 (1898)

3. Crespin v. United States, 168 U.S. 208 (1897)

4. Gwin v. United States, 184 U.S. 669 (1902)

5. Hayes v. United States, 170 U.S. 637 (1898)

6. Interstate Land Co. v. Maxwell Land Grant Co., 139 U.S. 569 (1891)

7. Lockhart v. Johnson, 181 U.S. 516 (1901) [*]

8. Palmer v. United States, 65 U.S. (24 How.) 125 (1860)

9. United States v. Bassett, 62 U.S. (21 How.) 412 (1858)

10. United States v. Bolton, 64 U.S. 341 (1859)

11. United States v. Cambuston, 61 U.S. 59 (1857)

12. United States v. Galbraith, 63 U.S. 89 (1859) [*]

13. United States v. Knight's Administrator, 66 U.S. 227 (1861)

14. United States v. Nye, 62 U.S. (21 How.) 408 (1858)

15. United States v. Rose, 64 U.S. (23 How.) 262 (1859)

16. Whitney v. United States, 181 U.S. 104 (1901)

(*.) Split decision

Appendix B

Cases Upholding Mexicans' and Indians' Land Claims

1. Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80 (1893)

2. Bergere v. United States, 168 U.S. 66 (1897)

3. Botiller v. Dominguez, 130 U.S. 238 (1889)

4. Castro v. Hendricks, 64 U.S. 438 (1859)

5. Chavez v. United States, 175 U.S. 552 (1899)

6. De Guyer v. Banning, 167 U.S. 723 (1897)

7. De la Paz Valdez de Conway v. United States, 175 U.S. 60 (1897)

8. Fuentes v. United States, 63 U.S. 443 (1859)

9. Lockhart v. Johnson, 181 U.S. 516 (1901) [*]

10. Luco v. United States, 64 U.S. 515 (1859)

11. Peralta v. United States, 70 U.S. (3 Wall.) 434 (1866)

12. Pueblo of Zia v. United States, 168 U.S. 198 (1897)

13. Romero v. United States, 68 U.S. 721 (1863)

14. San Pedro & Canon Del Ague Co. v. United States, 146 U.S. 120 (1892)

15. United States v. Castillero, 67 U.S. 17 (1862)

16. United States v. Castro, 65 U.S. 346 (1869)

17. United States v. Ortiz, 176 U.S. 422 (1899)

18. United States v. Sandoval, 167 U.S. 278 (1897)

19. United States v. Vallejo, 66 U.S. 541 (1861)

(*.) Split decision

Appendix C

Cases Not Upholding Anglos' Land Claims

1. Barker v. Harvey, 181 U.S. 481 (1901)

2. Ely's Administrator v. United States, 171 U.S. 220 (1898)

3. Fremont v. United States, 58 U.S. (17 How.) 542 (1855)

4. Henshaw v. Bissell, 85 U.S. 255 (1873)

5. Hornsby v. United States, 77 U.S. 224 (1869)

6. Miller v. Dale, 92 U.S. 473 (1875)

7. More v. Steinbach, 127 U.S. 70 (1888)

8. Newhall v. Sanger, 92 U.S. 761 (1875)

9. Summa Corp. v. California ex rel. State Land Commission, 466 U.S. 198 (1984)

10. Thompson v. Los Angeles Farming Co., 180 U.S. 72 (1901)

11. Townsend v. Greeley, 72 U.S. 326 (1866)

12. United States v. Galbraith, 63 U.S. 89 (1859) [*]

13. United States v. Green, 185 U.S. 256 (1902)

14. United States v. Johnson, 68 U.S. 326 (1863)

15. United States v. Larkin, 59 U.S. 557 (1855)

16. United States v. O'Donnell, 303 U.S. 501 (1938)

17. United States v. Pendell & Escobar, 185 U.S. 189 (1902) [*]

18. United States v. Reading, 59 U.S. (18 How.) 1 (1855)

19. United States v. Ritchie, 58 U.S. 525 (1854)

20. United States v. Throckmorton, 98 U.S. 61 (1878)

21. United States v. Title Insurance Trust Co., 265 U.S. 427 (1923)

(*.) Split decision

Appendix D

Cases Not Upholding Mexicans' and Indians' Land Claims

1. Ainsa v. New Mexico & Arizona R.R. Co., 175 U.S. 76 (1889)

2. Boquillas Land & Cattle Co. v. Curtis, 213 U.S. 339 (1909)

3. Cramer v. United States, 261 U.S. 219 (1923)

4. Rodriguez v. United States, 68 U.S. 582 (1863)

5. United States v. Augisola, 68 U.S. (1 Wall.) 352 (1863)

6. United States v. Camou, 184 U.S. 572 (1902)

7. United States v. Cervantes, 59 U.S. 553 (1855)

8. United States v. Coronado Beach Co., 255 U.S. 472 (1921)

9. United States v. D'A'guirre, 68 U.S. 311 (1863)

10. United States v. De Arguello, 59 U.S. (18 How.) 539 (1855)

11. United States v. Heirs of Berreyesa, 64 U.S. 499 (1859)

12. United States v. Moreno, 68 U.S. (1 Wall.) 400 (1864)

13. United States v. Pacheco, 69 U.S. (2 Wall.) 587 (1864)

14. United States v. Pena, 175 U.S. 500 (1899)

15. United States v. Pendell & Escobar, 185 U.S. 189 (1902) [*]

16. United States v. Pico, 72 U.S. (5 Wall.) 536 (1867)

17. United States v. Rocha, 76 U.S. 639 (1869)

18. United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339 (1941)

19. United States v. Sutherland, Guardian of Las Pedrorenas, 60 U.S. 363 (1856)

(*.) Split decision

Appendix E

Cases Reaching No Decision Regarding Land Claims

1. Board of Trustees of Sevilleta do la Joya Grant v. Board of Trustees of Belen Land Grant, 242 U.S. 595 (1916)

2. California Power Works v. Davis, 151 U.S. 389 (1894)

3. Devine v. City of Los Angeles, 202 U.S. 313 (1906)

4. Grisar v. McDowell, 73 U.S. (6 Wall.) 363 (1868)

5. Heirs of Yturbide, 63 U.S. 290 (1859)

6. Hooker v. Los Angeles, 188 U.S. 314 (1903)

7. Los Angeles Milling Co. v. Los Angeles, 217 U.S. 217 (1910)

8. Phillips v. Mound City Land & Water Ass'n, 124 U.S. 605 (1888)

9. Stoneroad v. Stoneroad, 15 S.Ct. 822 (1895)

10. United States v. Baca, 184 U.S. 653 (1902)

11. United States v. Circuit Judges, 70 U.S. 673 (1865)

12. United States v. Coe, 155 U.S. 76 (1894)

13. United States v. Fossatt, 62 U.S. (21 How.) 445 (1869)

14. United States v. McLaughlin, 127 U.S. 428 (1888)

15. United States v. Sepulveda, 68 U.S. 104 (1863)