Properties of Violence

Law and Land Grant Struggle in Northern New Mexico

David Correia, Deborah Cowen, Melissa Wright, Nik Heynen

• Publisher: University of Georgia Press
• Year: 2013
• Print ISBN: 9780820345024, 9780820332840
• eBook ISBN: 9780820345826
• Topic: History
• Subtopic: North American History
• Index: History

Through a compelling story about the conflict over a notorious Mexican-period land grant in northern New Mexico, David Correia examines how law and property are constituted through violence and social struggle.

Spain and Mexico populated what is today New Mexico through large common property land grants to sheepherders and agriculturalists. After the U.S.-Mexican War the area saw rampant land speculation and dubious property adjudication. Nearly all of the huge land grants scattered throughout New Mexico were rejected by U.S. courts or acquired by land speculators. Of all the land grant conflicts in New Mexico's history, the struggle for the Tierra Amarilla land grant, the focus of Correia's story, is one of the most sensational, with numerous nineteenth-century speculators ranking among the state's political and economic elite and a remarkable pattern of resistance to land loss by heirs in the twentieth century.

Correia narrates a long and largely unknown history of property conflict in Tierra Amarilla characterized by nearly constant violence—night riding and fence cutting, pitched gun battles, and tanks rumbling along the rutted dirt roads of northern New Mexico. The legal geography he constructs is one that includes a surprising and remarkable cast of characters: millionaire sheep barons, Spanish anarchists, hooded Klansmen, Puerto Rican terrorists, and undercover FBI agents. By placing property and law at the center of his study, Properties of Violence provocatively suggests that violence is not the opposite of property but rather is essential to its operation.

CHAPTER ONE
Colonizing the Lands of War

IN FEBRUARY 1848 representatives of Mexico and the United States negotiated an end to the U.S.-Mexican War. The subsequent Treaty of Guadalupe Hidalgo proved costly for Mexico. The terms transferred more than five hundred thousand square miles to the United States, an amount that comprised nearly all of what is today the U.S. Southwest, including all of what would become the state of New Mexico. In the decades after the treaty was signed, a western migration of political appointees, bureaucrats, and technocrats flooded New Mexico, transforming political institutions in the new U.S. territory. The clubby territorial politics of U.S.-controlled New Mexico opened up the region to enterprising lawyers and land speculators who swarmed the territory during the 1870s and 1880s in order to invest huge sums in land purchases and natural-resources extraction. The many “politicians for revenue only,” as one critic described them, fare poorly in histories of New Mexico’s land grants.¹ In the compelling story of social transformation and land loss in postwar New Mexico, a cabal of speculators called the Santa Fe Ring prowled the territory for real estate investments and eventually dispossessed scores of land grant communities of millions of acres.²

Membership in the ring included every territorial governor until 1885, nearly every federal appointee with authority over land and resources throughout the nineteenth century, and scores of federal and territorial judges. Enterprising lawyers with connections to eastern investors tapped the ring’s political networks as a way to “translate and mediate” the common property claims of subsistence settlers.³ The history of the Santa Fe Ring is a story of waves of enclosures and dispossessions as its legal machinations converted common property claims into commercial investment opportunities for moneyed interests. At the heart of this transformation was the treaty, a document that all but guaranteed that Spanish and Mexican land grants would fall prey to predatory speculators.⁴

The story of New Mexico’s territorial period is often told from the perspective of the ring, depicted as an ad hoc array of elites who, from a privileged political and economic perch, manipulated legal procedures, co-opted federal bureaucrats, and hoodwinked unwitting settlers. Spanish-speaking land grant communities, it seems, had little chance against these experts in “high finance, intricate legal arrangements, and the latest techniques of investment and exploitation.”⁵ By the end of the nineteenth century, the ring controlled the financial and political infrastructure of the territory and used this control to absorb huge investments in resources from Gilded Age investors in boardrooms from Boston and New York to London and Amsterdam. Within a generation these investors and their money had transformed New Mexico’s land grant communities from remote agrarian outposts into critical nodes in the circuits of global capital. By the time New Mexico became a U.S. state in 1912, speculation and legal chicanery had stripped nearly 80 percent of all Spanish and Mexican land — millions of acres — from land grant settlers and heirs.⁶

But how did indigenous nations and Spanish and Mexican land grant communities of northern New Mexico experience this tumultuous period? What patterns of resistance did they offer to the land grab that threatened their lives and cultural traditions? These are questions that have preoccupied recent histories of colonial and postcolonial New Mexico. The many Indian societies and land grant communities that populated northern New Mexico were not the silent victims of colonial speculation but actively resisted these patterns and political agents in struggles over land and resources.⁷

This emphasis on social struggle, however, is not part of the many histories of Spanish and Mexican land grants in which the agency of Indian nations and land grant society disappear behind stories of powerful land speculators and Santa Fe Ring operatives.⁸ The story of New Mexico’s land grant struggle is often an account of the inexorable transformation from subsistence production to industrial extraction, from common property to private property, from Spanish and Mexican land grants to large private ranches. It is a story in which everyone but the sophisticated speculators and powerful ring members were pawns in a transformation wrought by legal and economic changes following the arrival of U.S. authority. According to Malcolm Ebright, “Hispanic land grant settlers, unfamiliar with Anglo laws and language and often not aware of court proceedings involving their land grants, had little chance of protecting their property.”⁹ It was a vast dispossession made possible by the law. Even if land grant settlers were familiar with Anglo commerce and could have somehow protected their claims from Santa Fe Ring speculators, they were still doomed. The potent legal edifice of private property made resistance impossible. “The reason for [land loss],” concludes Ebright, “was that the land grants were established under one legal system and adjudicated by another.”¹⁰

Ebright’s explanation describes the law as a relentless force of land dispossession in New Mexico during the territorial period. The common property claims of Spanish and Mexican land grants were simply inconsistent with the privileged private property relations introduced by U.S. administrators and courts and therefore could not survive the change to U.S. control. Land loss came like a wave that swamped existing legal practices. Indian nations and land grant settlers in New Mexico have often been portrayed as victims of the law, refugees from a common property history adrift in a sea of private property. Where speculators found ways to manipulate the law and take advantage of the divide between common and private property, all others spoke only the language of subsistence and never the language of the law. Power and agency resided with Santa Fe Ring members, who used the law as a way to transform the diverse practices and relations of Indian nations and Spanish and Mexican land grants into objects of commercial investment. “The problem of land grants in the American Southwest” argues historian Maria Montoya, “is largely a problem of translation.”¹¹

In this chapter I offer an alternative to a focus on law, legal translation, and elites in studies of land grant dispossession. Although I do examine the tactics and consequences of commercial speculation by the Santa Fe Ring in the next chapter, I focus here on a different set of actors. Here I examine the active and sophisticated patterns of resistance to speculation by Capote Utes and land grant settlers in Tierra Amarilla. In the face of new legal authorities and emerging commercial challenges, Utes and land grant settlers alike asserted, performed, and defended their diverse property claims against Santa Fe Ring speculators. The resistance of Capote Utes and the complicated legal struggles for property waged by land grant communities suggest that Indian and Mexican claimants did not mistake the law as an autonomous force mediating the struggle for property but rather understood law and property as a tool of resistance and a site of social struggle.

The Making of Property in Tierra Amarilla

A curious letter arrived in the office of New Mexico’s surveyor general in July 1861.¹² “Mr. Surveyor General of the Territory of New Mexico,” the letter began,

The people who have colonized the well-known Tierra Amarilla have encountered some embarrassments and difficulties as a result of Don Francisco Martínez and his brothers who were the primary cause for many people to abandon their personal interests in a place in which many have devoted their lives in defense based on the promises of Mr. Martínez, promises that he made before he became the verified settler, promises that have been, and continue to be, ratified through the toil and work of many poor men, and promises that have not been honored; although we have handled the matter with a sense of humor, we know well the damage that is being done to our interests, interests and rights we have acquired through our work in the aforementioned place; the people appeal to your authority to give your opinion regarding what rights we have in the Land Grant and the work that we have put; the tenth of this same month we will have a meeting in Tierra Amarilla, and we place our hope in the kindness of your consideration in our dispute and respond in a convenient manner.

No record of any response to the letter exists in the archives of the Office of the Surveyor General. Though the surveyor general was tasked with investigating Spanish and Mexican property claims in New Mexico, the letter was apparently of little interest to him. But despite official disinterest in the letter and its contents, the brief appeal is remarkable for a number of reasons. First, the letter demonstrates that at the very beginning of U.S. efforts to adjudicate Spanish and Mexican property claims in New Mexico the settlers of the Mexican land grant of Tierra Amarilla inserted themselves into the messy property disputes that would come to dominate territorial politics. It describes efforts to organize meetings and pursue strategic alliances with U.S. officials and articulates a brief but familiar theory on the origins of property and the various rights that accrue to legitimate property holders.

Second, the explicit claims and tacit assumptions in the letter offer an alternative telling of New Mexico’s land grant history. While land grant scholars have narrated New Mexico’s land grant history through a focus on speculators and federal officials, this letter offers a glimpse at a different story lurking behind the dominant narratives of powerful commercial interests and Santa Fe Ring political power. By following the clues offered in the letter, I examine how land grant settlers understood and asserted claims to property vis-à-vis U.S. property law and how they navigated the complicated adjudicatory structures placed in front of them.

Three themes appear in the letter and serve as the organizing structure of this chapter. The first theme relates to claims of legitimate property origins made by land grant settlers. Property, according to the letter, was a right acquired by certain people and “ratified through the toil and work of many poor men.” The wording reads as though cribbed from the pages of John Locke’s Second Treatise of Government (though perhaps more elegantly than Locke’s), arguably the founding document of a version of U.S. liberalism preoccupied with limited government, private property, and market economies.¹³ Locke’s labor theory of property (property ratified through toil) was a familiar trope to U.S. property adjudicators, and more importantly, it was a theory that U.S. adjudicators assumed absent in Mexican notions of property. Indeed, most existing histories of New Mexico’s community land grants focus on the importance of common property as a form that stands in stark contrast to the private property arrangements imagined to be imported into New Mexico by the United States after the war.

The letter suggests, however, that land grant settlers shared liberal notions of private property and even understood land grant common property in terms consistent with Lockean-derived liberal theory. As I examine in this chapter, the brief letter offers a clue that challenges a key premise in land grant historiography: the idea that New Mexico’s common property relations were wholly incompatible with the private property relations imposed by U.S. property adjudicators after the U.S.-Mexican War. As I will argue, the theories of property among U.S. adjudicators and federal officials were not anathema to the land grant settlers’ own understanding of property in Tierra Amarilla.

A second theme of the letter refers to the way property was structured and practiced in New Mexico. The writers make vague reference to certain “embarrassments and difficulties as a result of Don Francisco Martínez and his brothers who were the primary cause for many people to abandon their personal interests in a place in which many [had] devoted their lives in defense based on the promises of Mr. Martínez, promises that he made before he became the verified settler.” The reference here is an important one. It refers to the very specific and unique ways that Tierra Amarilla settlers constructed legal and discursive strategies to assert and legitimate their property claims to skeptical U.S. authorities.

While the letter writers in the first theme offered a theory of property that supported their legitimate property claims, those claims, in order to be legal and compelling, required particular practices or performances of property that could demonstrate and confirm legitimate rights and claims. Property, as they understood it, required certain recognizable practices, and land grant settlers reconfigured these practices after the arrival of U.S. authority, in ways they hoped would conform to new legal and economic property relations.

A final theme reflects the notable voices and property struggles missing from the letter. Just as the original Tierra Amarilla land grant documents of 1832 made no mention of Ute or Apache claims to Tierra Amarilla — or even the existence of Utes and Apaches in Tierra Amarilla — so too does the 1861 letter ignore the existing and, as we shall see, powerful Capote Utes in Tierra Amarilla in 1861. While Tierra Amarilla’s Mexican land grant settlers were seeking support from the surveyor general in political struggles over property in Tierra Amarilla, they were also engaged in a violent struggle for land with the various Ute and Apache groups that maintained permanent settlements within the boundaries of the land grant. Land grant settlers in Tierra Amarilla worked both with and against various federal officials, particularly the many Indian agents sent to New Mexico, to undermine Ute and Apache claims in a violent struggle for property. The silences in the letter belie the violence that dominated local property struggles in the early 1860s. As I show in this chapter, land grant settlers in Tierra Amarilla required, even perhaps anticipated, the broad adoption of U.S. policies and practices of Indian removal as a means to protect common property claims.

On a Labor Theory of Property

The writers of the 1861 letter appealed directly to the surveyor general to make a defense of their property claims by virtue of it being “ratified by the toil and work of many poor men.” The language echoes the liberal tradition on property elaborated by key Enlightenment thinkers, particularly English political philosopher John Locke.¹⁴ Though Locke’s writings were influential far beyond seventeenth-century England, it seems unlikely that the writers would have actually read Locke’s Second Treatise on Government, his most explicit examination of the roots of property; books, particularly legal books, were an unusual luxury on New Mexico’s frontier.¹⁵ And yet the letter develops the same sensibilities and draws on the same political commitments to which Locke appealed when he published his immensely influential tract on the role of government and the theory of property in 1690. For Locke property was a natural right that one derived from “the labour of his body, and the work of his hands.”¹⁶ By natural right, nature, once transformed through human labor, becomes the private property of whoever transforms it and “labor was to be his title to it.”¹⁷ This new right, according to Locke, necessarily requires new kinds of property, particularly those that exclude “the common right of other men.”

Locke’s formulation of natural rights arranged as “life, liberty, and property” found its cognate in the U.S. Declaration of Independence’s “life, liberty, and happiness.” Both phrases refer to “natural rights,” and although Jefferson’s vocabulary in the declaration differed from Locke’s explicit claim to property as a natural right, these Enlightenment notions of property, to which Locke contributed, served as the foundation for liberal notions of private property, markets, and capital accumulation in the development of U.S. colonial expansion.

Locke’s version of property was also one that allowed for unlimited private appropriation. This liberal theory of property to which Locke contributed was at the heart of the waves of enclosures that transformed the patterns of common property land tenure in Europe beginning in the seventeenth century and in New Mexico beginning in the mid-nineteenth century. As E. P. Thompson writes of the eighteenth-century agrarian enclosures in England, this liberal version of property law became a key way in which “the land was laid open to the market.”¹⁸ U.S. property adjudicators in New Mexico in the late nineteenth century, and the institutions in which they served, considered common property land grants like Tierra Amarilla to be a violation of the liberal contract. The presence of common property, in other words, impeded the expansion of market exchange and stifled progress, thus marking a deep cultural pathology in land grant society.

Rectifying this state of affairs became the central task of administrators in postwar New Mexico. The solution for many was the steady migration of Anglo settlers into New Mexico and the slow transformation from comm...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• Introduction Property and the Legal Geographies of Violence in Northern New Mexico
• Prologue Yellow Earth
• Chapter 1 Colonizing the Lands of War
• Chapter 2 “Under the Malign Influence of Land-Stealing Experts”
• Chapter 3 The Night Riders of Tierra Amarilla
• Chapter 4 An Unquiet Title
• Chapter 5 The New Mexico Land Grant War
• Chapter 6 Terrorists and Tourists in Tierra Amarilla
• Epilogue Rare Earth
• Notes
• Bibliography
• Index