Tuesday, August 07, 2007
Treaty of Guadalupe-Hidalgo under new scrutiny by United Nations. The Injustified Invasion of U.S. to Mexico.By Hugo Chavez.
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 United Nations. 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 Agreement.
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 notes.
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.