This is an important piece regarding the history of the Treaty of Guadalupe Hidalgo by Armando Rendon who is the editor of Somos en escrito The Latino Literary Online Magazine.
I really respect and appreciate Armando who develops the argument herein that
the harm inflicted upon Chicanos or Mexican Americans historically does rise to the international level with implications for human rights violations and all that is implied therein. Great read!
Que Viva el Tratado de Guadalupe Hidalgo (Long Live the Treaty of Guadalupe Hidalgo)
First page of the Treaty of Guadalupe Hidalgo
In Memory of Reies Lopez Tijerina: Que en paz descanse
By Armando B. Rendón
Much has been written and said recently about the Treaty of Guadalupe Hidalgo, especially with the death this past January 19th of Reies Tijerina, the foremost proponent of land grant rights under the Treaty’s banner. He gathered up the anger and frustration of hundreds of Hispano grantees in New Mexico into a nationally recognized protest. “Tierra o muerte” became its rallying cry.
But the Treaty was enacted in 1848—today is its 167th anniversary! It’s a dead letter.
No, not at all. In fact, this document, drafted to affirm peace and friendship between two neighboring countries—after the United States invaded Mexico and grabbed over half its territory—gave birth to a unique “person” in the Americas: the Mexican American. Because of the Treaty’s singular nature as an international document, it is, in spite of its years, a living document. I offer this commentary to encourage further study, debate, and action.
What is radically different today from 167 years ago is the existence of a human rights system enabled by the American Convention on Human Rights under the Organization of American States. With the Convention in place, Americans (North, Central and South) have a place to seek redress for violations of their human rights. Unfortunately, the Treaty has been resorted to mostly to redress land grant violations; Chicanos have yet to use the Treaty to seek redress of human rights violations in domestic and international tribunals.
From the earliest cases which ensued almost from the moment the Treaty was signed until the more recent cases (most of which derive from American Indian claims), the right to “property” has been the dominant focus in challenging or citing to the Treaty. The ownership of land, for a number of reasons, was uppermost in the minds of the inhabitants in the lands taken from Mexico by the United States. Land meant a livelihood, if not wealth, prestige, a patrimony, certainly the means to sustain life itself.
The Mexican Americans robbed, cheated, taxed, beaten, murdered and lynched, or otherwise driven off their lands (See Appendix A), went into the U.S. courts only to find either that they had no protected titles where Texas was concerned or that the Treaty, instead of validating previous land claims had only given claimants the right to seek validation or clarification in U.S. tribunals. As one court saw it, Mexicans in the ceded territories got merely the status of citizenship under the Treaty; they gained no special guarantees under it.
Article IX of the Treaty specifically cites the right to “liberty and property”. At the time, the right to challenge land claims or validate titles was an important and perhaps the crucial issue, often a life-and-death matter, to the early Mexican Americans. However, the Treaty conveyed—under the rubric of the right to “liberty” and by virtue of other documents specifically incorporated into the Treaty—a whole range of values and individual guarantees which apparently were not then considered assertable theories in litigation but which have since become both national and international standards of law.
U.S. citizenship was afforded all Mexicans within the territories who did not elect to retain Mexican citizenship by the end of one year. The right to liberty, in other words, adhered to all Mexicans who remained on the U.S. side of the new border: in effect, these guarantees were extended not only to individuals but to the group clearly identifiable by their national origin as Mexican Americans. This factor becomes crucially significant as we look more closely at what the Treaty means for Chicanos today.
Because land constituted the very sustenance of life in the society of the 1800s, it is understandable that claims to property depended on evidence of title, adverse possession, riparian rights, community ownership, and the like. In time, the significance of land has given way to the right to life and liberty as the primary values in affecting redress for wrongs against civil and human rights. For example, where denial of one’s civil rights results in death at the hands of another, code law supplants the direct murder charge, which would otherwise not be applicable. See 18 U.S.C.A. §242.
Chicano claims for justice are basically at an impasse. Claims related to property rights obviously have faltered not only in the courts but also in the public conscience. The efforts of Reies Tijerina and the Alianza Federal de Mercedes Libres in the 1960s’ land claims movement in New Mexico sought redress in the courts and in public opinion, even in the halls of the United Nations, fell on deaf ears.
A review of key U.S. documents, the evolution of the principles of human rights, and the development of international systems for the protection of those rights, will explain why I believe that the Treaty of Guadalupe Hidalgo is a living human rights document.
Treaty of Guadalupe Hidalgo, 9 Stat. 922; T.S. 207; 9 Bevans 791, signed February 2, 1848, went into force, May 30, 1848. For Spanish text, Algunos Documentos sobre el Tratado de Guadalupe Hidalgo, Archivo Histórico Diplomático Mexicano, No. 31, ed. Antonio de la Peña y Reyes. Secretaria de Relaciones Exteriores, México, D.F. 1930. p. 115.
The Right to Life as a Protected Human Right
What I argue is that the principles which undergird present civil rights and human rights laws are embodied in the Treaty of Guadalupe Hidalgo. The term, “liberty”, entails the notion found in basic constitutional and treaty law of “life and liberty,” each a part of the other, and thus bridging the rights found in Guadalupe Hidalgo with the modern doctrine on human rights.
America’s commitment to basic individual rights is clearly embodied in the Declaration of Independence, which preceded the Treaty by 72 years (although these principles also appeared two years earlier in the “Declaration and Resolves of the First Continental Congress” which specifically cites to “life, liberty and property.”) The second paragraph of the Declaration of Independence asserts that,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.
Not till 1868, however, did the United States constitutionally bestow upon the concept of “life, liberty and property” the status of protected individual rights, interdependent facets of the fundamental equality and worth of the human person. The 14th Amendment reads,
§1. All persons born or nationalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State ... shall...deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis added.)
These two tenets, taken together with Article 11 §2 (2) which places treaty making authority in the President and Article VI (2) which asserts that the Constitution of the United States and its laws and Treaties shall be “the supreme law of the land…” show that pre-1848 in the United States, “life, liberty and property” were understood as a whole, each element complementing and encompassing the other.
One way to commemorate El Segundo de Febrero is to listen to a live radio broadcast starting at 3 p.m. EST, today, Monday, February 2, 2015, on the life of Reies Tijerina. Go to www.radiobilingue.org on your laptop or hand-held device, and click on “Listen”. My thanks to Dr. Margarito J. Garcia, of Michigan, for providing this information and who, along with other Lansing Chicanos, persuaded the Michigan Governor officially to declare Feb. 2-8, Chicano History Week.
Mexican Perceptions of Basic Rights
Mexican views on the right to life and liberty are well-rooted in official documents of the Republic both prior and subsequent to 1848. Citing the seminal nature of the Declaration of Rights of Man and Citizen by the National French Assembly in 1789 to Mexican constitutional thought, Alfonso C. Noriega in a study titled, La naturaleza de las garantías individuales en la Constitución de 1917, traces the sources of individual rights in the Mexican Constitution of 1917 back to the 1847 Actas de Reformes, citing Article 5 which asserts, “...the declaration that a single law would insure the guarantees of liberty, security, and equality in favor of all citizens of the Republic... (Emphasis added.)
Even earlier, Noriega tells us, Article 24 in the Constitution of 1824, stated, “The happiness of a people and of each individual consists in the mutual enjoyment of equality, security, property, and liberty. The preservation as a whole of these rights is the goal of government and the only objective of political bodies. (Emphasis added.)
So clearly, the Mexican authorities involved in the drafting of the Treaty had a clear notion of the principles involved in assuring the rights of the Mexicans who might become, in fact, U.S. citizens by virtue of the boundary crossing over them. They knew that what they were signing assumed protections of those involved by virtue of their human nature, not where they were born.
The Right to Life in the Treaty of Guadalupe Hidalgo
In the early drafts of the Treaty, the inalienable rights of those already on the northern side of the new border were to be fully recognized. However, the U.S. Congress when it reviewed the Treaty for ratification, cut Article X, which was critical to establishing clear rights to land grants then existing, and grudgingly bestowed on the new Mexican/Americans the most minimal protections.
Article VIII, in para. 1, identifies as a group, “Mexicans now established in territories previously belonging to Mexico...” and adds in para. 2, “...who have remained in the said territories (beyond the year from the date ratifications were exchanged) without having declared their intention to retain the character of (citizens of Mexico) shall be considered citizens of the United States.”
The grant of citizenship, therefore, is not made with regard to propertied status or place of residence: that group of persons of Mexican origin who simply decided to stay behind the new boundary line became citizens by operation of Treaty law.
However, Article IX declares that,
(These) Mexicans...shall be incorporated into the Union of the United States and be admitted, at the proper time (to be judged by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction. (Emphasis added.)
Both conditions, the tacit election to assume U.S. citizenship after one year and the admission of the territory into statehood, are since fully complied with by operation of law, although in the case of New Mexico, it took more than half a century before it was finally admitted as a state. Congress, in effect, withheld full citizenship from the Mexican/Americans by setting a vague point in the future (“at the proper time”) for grant of citizenship; that event took place when the white Anglo population became the majority in the state.
The Right to Life in International Human Rights Documents
The United Nations Charter does not specifically assert a “right to life”, rather it characterizes its States Party (member countries) to the Charter as, “Determined ... to reaffirm faith in fundamental human rights and in the dignity and worth of the human person.” More to the point is the Universal Declaration of Human Rights, a derivative document of the UN Charter. Several articles specify that life is a protected value and elaborate its many ramifications into society.
Article 3 cites the right to “life, liberty and the security of person”; 4, denounces slavery and any form of forced servitude; 5, condemns “...torture, cruel, inhuman or degrading treatment or punishment”; 7, entitles the person “to equal protection of the law”; 8, 9, and 10, assert rights to effective remedies before competent tribunals, fair and public hearings by impartial tribunals, and freedom from arbitrary arrest, detention or exile; 25, promotes the right to a decent standard of living, and 27, seeks progress for all by participation in or benefiting from cultural, artistic and scientific progress.
The Declaration of Rights and Duties of Man, adopted by the Organization of American States in Bogota in 1948, is also quite explicit. The introductory paragraphs assert basic assumptions about “the dignity of the individual” and the generic nature of “life in human society...” The Preamble adds substance and depth to the “life” value, promoting culture as the highest social and historical expression of... spiritual development, ...it is the duty of man to preserve, practice and foster culture by every means within his power.”
In the Statute of the Inter-American Commission on Human Rights which was approved in 1960, Article 2 assumes by reference the listing of rights as set forth in the American Declaration of the Rights and Duties of Man. But anyone wishing to petition the Commission to review an alleged violation of human rights has a number of hurdles to overcome before receiving full Commission attention. A petitioner must first exhaust (Article 46) whatever remedies are available within his/her country and submit the petition within six months of the date after those remedies are used up (“a final judgment”).
If a petitioner can show that country has no such remedies, nor due process or has been denied access to those remedies, or has been met by delaying tactics, he or she can seek to have the Commission set aside the exhaustion requirement. But that just gets a petitioner in the door, so to speak.
A person’s case may be heard by the Inter-American Court of Human Rights or the Commission may make recommendations to the country or publish a report about the case.
It gets more complex. Because only a State Party or the Commission may approach the inter-American Court, who that complainant would be becomes the paramount—and extremely political—question. In regard to Chicano concerns, only two entities have clear standing to sue: the states parties, either the United States or Mexico, and the Commision. Any chance of the U.S. or Mexico intervening? Most likely, only the Commission would approach the Court.
Another way to approach a case would be for the Commission to seek an advisory opinion of the Court regarding the interpretation of the Convention or of other treaties concerning the protection of human rights in the American States. (Emphasis added.) Such advisory jurisdiction may be invoked with regard to any state whether or not it recognizes the Court’s competence. Thomas Buergenthal, a former member of the Court, asserts that, though not binding, states may find it as difficult to disregard an advisory opinion as they would a judicial decision.
In the realm of international affairs, the publicity such an event can generate might prove an effective means of seeking redress.
The Treaty of Guadalupe Hidalgo, I believe, must also be considered an inter-American document which falls clearly within the purview of American documents establishing obligations among nations, “...concerning the protection of human rights” and thus within the jurisdiction of the Commission and the Court. My notion raises a number of other questions: what the nature and extent of the Treaty’s human rights protections might be, whether Chicanos in fact have standing as claimants, and where remedies might lie, within the jurisdiction of the Commission, the Court or the OAS General Assembly, to cite a few concerns.
Another famous case dealing with citizenship issues throws a spotlight on the nature of the Chicano person. In Dred Scott v. Sandford, 60 U.S. 586 (1856), the Treaty was cited to show that the Constitution had not excluded “colored aliens from citizenship”, i.e., color of a certain kind was not a necessary quality to obtain citizenship. The grant or withholding of citizenship is the prerogative of Congress. In the case of the Mexican American, he obtained citizenship by virtue of Treaty powers, without regard to color or race, but certainly with regard to his identification with a national origin. Cases which have since sought to establish the character of the Mexican American as an identifiable ethnic group took no cognizance or had no knowledge of this fact, e.g., Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, L.Ed. 866 (1945); U.S. v. Texas, (E.D.Texas) 342 F.Supp. 24 (1971).
What I’m suggesting is that the Chicano may have special standing in international forums dedicated to the protection of human rights because he has been granted citizen status by Treaty law. This might be a crucial question for the inter-American Court to ponder. My theory has not been tested yet in any domestic or international forum.
What I’m trying to fashion is the notion that harm inflicted upon Chicanos thereby rises to an international level—recall that along with the Constitution, treaty law is the supreme law of the land—and would constitute the basis for submitting proposals directly to the Commission for study as well as petitioning the Commission for redress of alleged violations. Besides, while the United States is technically not bound by the Convention—it is only a signatory and has yet to ratify the Convention—it is not free of public scrutiny. The Convention having gone into effect July 18, 1978, the United States cannot simply ignore the findings of a body duly established by the Convention. The inter-American system is designed as a forum for bringing world scrutiny and opinion to bear in as many ways as possible on the preservation and extension of human rights to all persons in the Americas.
If, in fact, Chicanos are victims of conduct proscribed by the Treaty, they should have full recourse to its protections. Unfortunately, despite efforts to gather the legal and financial resources to launch what would be a complex and expensive effort, my theories have yet to be tested.
Still, I ask, why not? The inter-American system of human rights is the recourse Mexican Americans have yet to seek in our pursuit of the right to life and liberty. It’s high time, I believe, after 167 years.
Final Page of the Treaty of Guadalupe Hidalgo
Treaty of Guadalupe Hidalgo, 9 Stat. 922; T.S. 207; 9 Bevans 791, signed Feb. 2, 1848, went into force, May 30, 1848.