- Natural Resources and the Law in Hispanic Arizona: The Babocómari Ranch and the Living Legacies of the Gadsden Purchase
Despite variations in the topography and climate of North America, farmers, irrigators, and ranchers throughout the continent face similar challenges as they approach planting season and the grazing of their livestock each year, including the prospect of long-term drought, the management of natural resources in light of intense competition from commercial agriculture, and the vicissitudes of the marketplace. In an effort to mitigate these challenges and assert a modicum of control over their livelihoods, rural communities over time have exercised their legal rights to natural resources within a context fashioned by the interplay of law and culture. Such efforts take place, however, in courts that seek to balance competing material interests (of the different parties to the litigation) with broader judicial understandings of what constitutes justice and equity.
The continental dimensions of these efforts are particularly compelling to evaluate and interpret because North America is home to two major western legal traditions, i.e., the civil law traditions of Spain and France, and the common law tradition of England. Both converged on North America in the sixteenth century and continue today to define the contours of jurisprudence and the more procedural elements in the practice of law. In the United States and Anglo Canada, for example, the role of precedence conditions judicial temperament within an [End Page 29] adversarial system of justice, while in Mexico and Québec code-law and custom shape judicial decisions. What is missing from the more theoretical discussions of law in North America, however, is the intersection of, and subsequent clashes between, the two legal traditions when they come together to adjudicate property rights, especially water rights, within the same nation-state. The Spanish colonial regimen of laws, customs, and usages regarding water, for example, has operated in the southwestern United States since 1848 when the Treaty of Guadalupe Hidalgo ended hostilities between Mexico and the U.S., obliging American courts to act as surrogates for the Hispanic civil law of property in the adjudication of claims and disputes. The Gadsden Purchase Treaty of 1854, or La Venta de La Mesilla, as it is known in Mexico, offered identical protections to Mexicans living in southern Arizona and southwestern New Mexico. What has taken place in the United States, therefore, is the application of an older Hispanic civil law within a judicial setting informed by English common law understandings of property rights, which often has promoted misunderstanding in the U.S. judicial system and, consequently, prolonged litigation. Even a cursory glance at the litigation schedule in Arizona, New Mexico, and Colorado since the 1980s confirms the use of Spanish colonial and early Mexican jurisprudence as part of a broader legal strategy to defend property rights.1
The relationship between citizenship, town life, and natural resources was an important dimension of the Spanish civil law of property as it developed and evolved in the medieval and early modern periods, and later transferred to the New World. In many ways, Spanish property rights and the legal culture that shaped those rights constitute one of the more enduring legacies of Spain’s presence in North America. Spaniards who explored and settled the far northern frontier of Mexico brought with them a set of legal and cultural values about land and water that had been fostered over the centuries in Spain and later central Mexico. The arid and semi-arid stretches of Arizona and New Mexico, for example, shaped settlement patterns as colonists sought land and water to sustain rural economic activities. Access to, and control over, natural resources fashioned the rhythms of daily life and not infrequently precipitated conflict between individuals and communities.2 Knowledge and application of the Spanish civil law of property, therefore, became the purview of Spanish settlers and indigenous peoples (now subject to Spanish law), both of whom farmed and irrigated the expansive landscapes of what is today the American Southwest. Even after Mexico’s independence from Spain in 1821, the new political leadership in Mexico [End Page 30] City and in state capitals continued...