Chicano Land Rights and the Potential for Settler Colonialism
In 1846, the U.S. invaded Mexico, seized Mexico City, and forced Mexico to give up 40% of it’s northern half through the 1848 Treaty of Guadalupe Hidalgo. The narrative that follows in much of Lat Crit theory is that Mexican’s were dispossessed of their property, and that a just result would allow for reparations of Mexicans pursuant to the basic rule illustrated in Plume v. Seward that when no legal title exists, property rights of first possessors trump the rights of those currently occupying the land.[i] This narrative is present in the satirical challenge to the Trump presidential slogan, “Make America Mexico Again”, as well as amongst Cicano nation & Nation of Aztlán movements, which call for the restoration of lost Mexican territory. Consequently, the Guadalupe-Hidalgo Treaty Land Claims Act of 1997 and similar legal efforts aimed to establish mechanisms to return land to it’s original Mexican grantees.
The absence of land alienation from history in legal (and non-legal) education is one example of academic colonization[ii], and these narratives do serve to illuminate the transient nature of borders. However, it also (perhaps accidentally) is itself ahistorical by attaching a claim to land without a conversation about the Native communities who have been present in that area for millennia, and paints a nostalgic picture of a peaceful homeland that Chicano people project onto Mexico.
This article aims to start a nuanced conversation around Chicano/Xicanx land rights and settler colonialism.
Who actually can lay a claim to land?
In beginning this conversation about land rights & Xicanx people, it is pivotal to determine exactly who Xicanx people are that would constitute the people who’s right to land would be considered valid (under the Guadalupe-Hidalgo Treaty Land Claims Act or otherwise). In Mexico, Spanish colonialism and the use of the caste system during the colonial period established a hierarchy that limited land acquisition according to racial categorization. Imposed by the Spanish government, the caste system determined how high in society one could go, dividing race into 3 primarily categories, of which there were several sub categories.[iii] The intricacies of the caste system were incredibly complex, the nomenclature appears random to those used to modern US racial categorization (for example, the term lobo was used to describe a particular degree of African and Amerindian mixture, but is also the word for wolf).
As a result, those who formerly had a legal connection to the land are likely those who benefited from this historical racism. If we are to think about reparations for Chicano people, we must also have the conversation of whether the reparations process accounts for pre-U.S. genocide and colonization in Mexico that created the property ownership system that was present at the time of U.S. invasion. If so, what are we to do if a given chicanx person’s ancestors are both colonizers and oppressed peoples?
To understand this complexity, we need to unpack mestizo/a.
The presumption of Mexican as mestizo/a : mestizaje as European + indigenous
Mestiza/o people are weaponized in modern day Mexican racial discourse to position Mexico as ethnically homogenized and racially undifferentiated. While an in-depth history of the creation mestiza/o identity is beyond the scope of this paper, it has been generally summarized that even as mestizo/a became increasingly able to access wealth and resources (both in Mexico and the US), afroxicanx people are and were categorically different and not subsumed into mestizaje.[iv]
One case example is in the original Treaty of Duagalupe Hidalgo itself, which granted Mexicans the status of “free white persons.” This language was changed by Congress in the confirmation process, and the final language was such that whether Mexicans are treated as white was “deferred to each State’s constitution and pervasive social tactics of racialization”. The Mexican government understood this codification of racial identity as implicitly anti-Black, and made active attempts to erase afroxicanx people by rejecting their existence and encouraging European immigration. At the same time, the Aztec became an important national emblem used to symbolically elevate indigenous Mexican people in order to foster the narrative of a single national identity.[v]
The impact of this racial homogenization can be seen in In Re Rodriguez, 81 F. 337 (W.D. Texas 1897), a U.S. naturalization case. Rodriguez, who is Mexican, applies for naturalization during a time in the US when only whites can naturalize. When asked “where did your race come from?”, Rodriguez answers, “I do not know where they came from.”[vi] He further goes to say he is a “pureblooded Mexican”, meaning he’s not Spanish or African in any way. His lawyer argued that the Treaty of Guadalupe Hidalgo consequently allowed Mexicans to be treated as white, and thus Rodriguez was permitted to naturalize. Here, we see Rodriguez refusing to classify himself under racial terms, but through advocating the lack of blackness, he benefitted from white privilege.
What does this mean for thinking about chicano land rights? Here, we see that stressing indigenous roots within mestiza/o identity distances Mexicans from blackness. While it is not possible to subsume afroxicanx people into mestiza/o identity without being ahistorical, it is important to consider how anti-blackness has operated in the construction of a Mexican racial identity and, consequently, the legal realities around land ownership. As a result, there is a multi-layered hierarchy at play that does not make the question as simple as “Mexicans should get their land back.”
The idea of property is settler colonialism
This paper is in no way diminishing the very real connection that indigenous people have to their land. Decolonization is very much about land rights, and any conversation about indigenous land reparations involves understanding decolonization. Through settler colonialism, land is remade into property, and human relationships to land are restricted to the confines of property law. Consequently, a violence is enacted onto indigenous people and their relationships to the land. Decolonization is the undoing of the historical process through which settlers made indigenous land a source of capital and consequently disrupted indigenous relationships.
Therefore, those interested in xicanx land rights should be vested in the experiences of persons connected to the land. However, within this idea of Xicanx people “reclaiming” their homeland, we cannot forget the fact that indigenous groups have continuously occupied many parts of the land they are asserting a land right to. The assertion of mestizo/a people in having a right to land that present-day indigenous communities have/are attempting to build a relationship with is a problem. While the logic of the Chicano nation is that their land right rooted in possessing indigenous blood or ancestors, this logic also acts to negate their colonizer-ancestors and contains a harmful silence around present day indigenous communities. Additionally, the language of having a blood right to land should always raise red flags for those who understand the language of racialization.
In order to engage in the conversation about the interplay of land rights under this complex hierarchy, we must talk about exactly who is connected to the land, and what is meant by that in indigenous discourse. It is my position that operating from the framework of a legal connection to the land inherently undercuts this goal, because the very purpose of modern day property law is to ensure the preservation of colonialist power.
All first year last students learn that under US property law, someone has to have possession of property at all times (whether it is the State or a private person). This erodes indigenous conceptions of land as a thing you have a relationship with, rather than a thing that a person or even a group of people collectively own. The destruction of that relationship is not a valid harm under property law. Therefore, property law acts to sever relationships. Decolonization involves centering/re-centering those relationships. Perhaps an important question to ponder for Chicano Nationalists is whether their claim to land is based on actual relationships with the land, or whether it relies on laws of the past that, like current laws, served to enforce hierarchies.
Borders are inventions of colonizers.
Another interesting aspect about the narrative of having an original right to the land is that it plays into anti-migrant narratives. The idea that “the border jumped over us” is often used to counter the racist narrative that Mexicans are somehow invaders of what is now the American SouthWest, however also carries the implication that the end goal is not the abolition of borders but rather a re-drawing. While many certainly feel that this narrative only seeks to illuminate the transient nature of borders and that this transience should serve as evidence for it’s abolishment, that subtext is not immediately clear and is not the position of Chicano nationalists.
Furthermore, property law necessarily relies on borders. In order to litigate around property disputes, it is crucial to draw boundary lines around exactly who owns what. The idea of easements serve to allow multiple people to access land while still abiding by to the idea that one party must still technically own that property. In other words, border policing is crucial to property law. Therefore, the idea that Chicano people have a right to a specifically delineated area of land, again, plays into a legal system that’s purpose is to enforce hierarchies.
CONCLUSION
So what should happen instead? Is there no way to engage in a non-imperialist conversation and reparation of the harm that xicanx people suffered?
It is my position that there is a distinction between asserting a right to reclaim land and challenging the historical structures that refuse to allow indigenous relationships to land. Part of the Chicano movement would be to reclaim lost indigenous ways, but this should not overtake the resistance of indigenous peoples who have maintained this connection to their ancestral land.
In terms of the current political climate, the Tohono O’oodham nation, a tribe with a reservation that spans 75 miles of the US-Mexico border, has named it’s resistance to the Trump border wall. Bradley Moreno, a Tohono O’odham member who grew up miles from the border, states that the border “cuts through our ancestral land, and it divides families that have been able to go back and forth freely since before the border line was drawn.”[vii] Perhaps this is an arena for collective solidarity, and an opportunity to engage in further conversations about the harms of borders, property delineation, and the quest for decolonization.
[i] Kim David Chanbonpin, How the Border Crossed Us: Filling the Gap Between Plume v. Seward and the Dispossession of Mexican Landowners in California After 1848, 52 Clev. St. L. Rev. 297, 300 (2005).
[ii] Robert Blauner, Racial Oppression in America, 166 (1972).
[iii] Fulano de Tal, The Mexican Caste System, The San Diego Reader (Nov. 4, 2011), available at http://www.sandiegoreader.com/weblogs/fulano_de_tal/2011/nov/04/the-mexican-caste-system/#.
[iv] Taunya Lovell Banks, Mestizaje and the Mexican Mestizo Self: No Hay Sangre Negra, So There Is No Blackness, Southern California Interdisciplinary Law Journal 15, 213 (2006).
[v] Id. at 218.
[vi] Id. at 219.
[vii] Sam Levin, ‘Over my dead body’: tribe aims to block Trump’s border wall on Arizona land, The Guardian (Jan. 26, 2017).
