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Treaty of Guadalupe-Hidalgo under new scrutiny

As people in Mexico and the United States commemorate the 150th
anniversary of the end of the Mexican American War, the Treaty of
Guadalupe-Hidalgo has come under new scrutiny from scholars in both
countries. They have been examining the implications of the treaty
which ended the war, and its political relevance and meaning to modern
Mexico-U.S. relations.

A series of conferences from California, to New Mexico, to Texas,
and to Michigan are being held this year to examine these questions. Of
particular concern to many scholars is the treaty’s relevance to land
claims and the civil, political, and human rights of Mexican Americans.

“Having legally trained Latino academicians analyze the treaty
makes the conferences very significant,” says George Martinez, law
professor at Southern Methodist University (SMU) Law School.

Scholars also have been examining the parallelism of the treaty and
the North American Free Trade Agreement — especially the issue of
immigration within the context of treaties.

Historians have long analyzed the treaty, but lacking legal training, they did not probe issues with a legal analysis.

Prior to the 1960s, there were very few Latino legal scholars in
the United States. Martinez notes that those attending this year’s
conferences represent the first generation of Latinos trained in law to
examine the legal issues arising from the treaty.

The NAFTA Comparison

The general public thinks of the treaty as a dated document from a
previous era. But legal scholars have a different perspective. Martinez
says that in addition to the courts continually affirming that the
treaty is a living document, there are many lessons to be learned from
it — particularly in relationship to the North American Free Trade

An SMU Law School conference in March, “A Tale of Two Treaties:
U.S.-Mexico relations through the Lens of the Treaty of
Guadalupe-Hidalgo and the NAFTA,” addressed the subject. The conference
was designed to highlight the parallels, such as how disputes are
supposed to be resolved under the treaties.

According to Martinez, one of the similarities between the treaties
is that they were both negotiated at times when Mexico was very weak.
As a result of the Treaty of Guadalupe-Hidalgo, Mexico was put at a
great disadvantage, resulting in the loss of nearly half of its land in
1848. Similarly, he says that as a result of NAFTA, “Mexico will again
be at a great disadvantage.”

Kevin Johnson, a professor at the University of California-Davis
School of Law who presented at a Treaty of Guadalupe conference at
Southwestern University School of Law in Los Angeles and who also spoke
at SMU, has focused his research on immigration in relation to the
treaties. He states that in examining NAFTA, it is clear that the issue
of immigration was left out of the treaty because allowing more
brown-skinned Mexicans into the U.S. would have torpedoed the agreement.

A trade agreement would normally contain provisions for workers to
migrate freely — or at least more freely. But because of the
anti-immigrant sentiment in this country, that provision wasn’t even
discussed. This is the opposite of what has occurred in Europe, he

Mexicans aren’t viewed as people who Americans would want to
immigrate to this country, says Johnson, because “Mexicans are brown
and poor.”

There’s a deep anti-Mexican sentiment in this country and to have
allowed more Mexicans to come into the United States — especially
during California’s anti-immigrant Proposition 187 — would have made
it impossible for the president to sign NAFTA, he says.

“Proposition 187 and the anti-immigrant movement are actually anti-Mexican,” he adds.

The Historical Backdrop

According to Johnson, Mexicans have, historically, been considered
White for legal purposes in some U.S. jurisdictions. However, rarely
have they ever been treated as full human beings, with full human
rights. For purposes of naturalization, the Treaty of Guadalupe-Hidalgo
considered Mexicans “White,” yet they have always been treated as
non-Whites socially, he says.

Guadalupe Luna, a professor at the Northern Illinois University
School of Law who is presenting at several of the conferences, has
studied extensively the issue of land loss as a result of the war. In
her view, “The Treaty of Guadalupe is indeed a living document” which
covers Chicanos/Hispanics and the rights of native peoples.

“It has no ending date and it is the supreme law of the land,” she says.

In Luna’s opinion, this is important because it means that the
rights — land, civil, political, and human — of Mexican Americans and
Native Americans are still protected under the treaty. In a recent
in-depth legal article in which she dissected the issue of land loss,
Luna concluded that Mexicans and Native people were treated disparately
in order to facilitate land theft and land fraud subsequent to the war.

Historians have erroneously concluded that much of the land was
lost because of misinterpretations between Spanish common law — which
was in effect during the awarding of land grants in “New Spain” and
Mexico prior to the war — and English common law. However Luna notes
that regardless of the interpretation, in the end the courts almost
always ruled in favor of Anglos and to the detriment of Mexicans and
their descendants.

Today, much of the land that was lost through fraud, ended up in
the hands of land barons — and later, the U.S. government. Much of
that land — which today is managed by the U.S. forest service and the
Bureau of Land Management — is currently in dispute. In fact, U.S.
Rep. Bill Redmond (R-N.M.), with the support of House Speaker Newt
Gingrich (R-Ga.), is supposed to introduce a bill that will create a
land commission to study the issue of land in New Mexico.

The Irony of Demographics

Chris Cameron, a professor at Southwestern School of Law, says that
part of the reason much of the land was lost is that Article 10 of the
treaty was taken out by the U.S. Senate. And although the spirit of
that article was reintroduced into a later agreement, the Protocol of
Queretaro, it was not binding on U.S. courts.

That spirit, according to Cameron, was to see that the Spanish and
Mexican communal and private land grants were respected and that
disputes regarding such land were to be adjudicated according to
Spanish and Mexican common law. By rejecting Article 10, “The United
States completely shifted the burden of proof, from the land owners to
the squatters and from the land grant heirs to the U.S. government.”

The great irony, says Cameron, is that the treaty will eventually be fulfilled as a result of demographics and time.

“Mexicans and other Latinos are buying the land back [in California
and other parts of the Southwest],” Cameron says. “The future is a
brown future.”

Not only is the issue of land grants very much alive because of the
treaty’s viability, but the issue is important because it is tied to
the issue of poverty. Luna’s studies have established a direct
correlation between land loss and poverty.

“That’s why we’re farm workers and not farmers,” she says.

The issue remains alive because of the possibility — however
remote — that land grant heirs may get their lands back. if that
happens, Luna says, there is a high probability that they would be able
to climb out of poverty.

Cameron concludes that legal scholars examining the treaty will
help fill in the gaps that the historians have been unable to complete.

“Historians have a great ability to tell stories. This will give
legal scholars the opportunity to do the same, ” says Cameron.

COPYRIGHT 1998 Cox, Matthews & Associates

© Copyright 2005 by

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