The living legacies of Spanish colonial property rights: natural resources and the law of the prior sovereign in the United States

Abstract

Drawing from legal and historical frameworks, my research examines the property rights regimen that Spain brought to North America in the sixteenth century, which included private and communal property within the civil law tradition, and the tensions that subsequently arose when the far northern frontier of Mexico became the American West, with its common law understandings of property, in the wake of the territorial cessions of 1848 and 1854.  I am interested in how U.S. courts interpreted the law of the prior sovereign just as the nascent doctrine of prior appropriation—or ‘first in time, first in right’—began to fashion property rights in the common law that Anglo settlers had brought with them to the American West.  Two treaties between the United States and Mexico—the Treaty of Guadalupe Hidalgo (1848) and the Gadsden Purchase (1854)—obliged, and continue to oblige, the U.S. to protect the property rights (land, water, and minerals) of those prejudiced by the change in territorial sovereignty (and their heirs and successors).  Hispanic and Native peoples entered the American Union, therefore, with property rights that had been acquired under the laws of Spain and Mexico, but which aligned less congruently with the bundle of property rights that was emerging in the American West under the common law.  The U.S. judiciary had to untangle Spanish and Mexican understandings of property amidst the feverish competition for land and other natural resources that took place in multiple ecological contexts over the course of the nineteenth and early twentieth centuries.  As my paper will demonstrate, U.S. courts continue to wrestle with these thorny issues today.

About the presenter

Presented by Professor Michael Brescia, Arizona State Museum, University of Arizona.

Michael M. Brescia is the Curator of Ethnohistory in the Arizona State Museum at the University of Arizona and holds faculty affiliations with the Department of History and the James E. Rogers College of Law.  He teaches a wide range of courses, including, for example, Mexican history, Comparative history of North America, Natural Resources and the Law in the Spanish Borderlands, World History, and historical research methods. Michael is the co-author of two books that examine the broader historical forces that have shaped the North American continent from Pre-Columbian times to the present: the fourth edition of Mexico and the United States: Ambivalent Vistas (with W. Dirk Raat, University of Georgia Press, 2010), and North America: An Introduction (with John C. Super, University of Toronto Press, 2009).