Rael v. Taylor and the Colorado Constitution: how human rights law ensures constitutional protection in the private sphere.

• Author: Howland, Todd

1. INTRODUCTION

   Many Practitioners and scholars in the United States have adopted the position that the ratification of human rights treaties adds little or nothing to the protection of rights in America.(1) This is due to a perceived advanced state of constitutional rights protection.(2) However, most international human rights advocates have lamented the apparent lack of impact that the ratification of the International Covenant on Civil and Political Rights [ICCPR] has had on U.S. jurisprudence. They blame this on the many reservations, understandings, and declarations attached during its ratification by the Senate.(3)

   The impact of the ratification has yet to be fully understood as an extremely important interpretive device for federal and state constitutions.(4) One such area is the vertical and horizontal character of human rights, which means human rights law will have an important evolutionary impact on the application of constitutional rights, not only in the public, but also in the private sphere.(5)

   This article will show the vital role the ICCPR should play in resolving a case pending in the Colorado courts since 1981, involving the descendants of the original Mexican settlers to Southern Colorado and their struggle to regain land rights with a 150 year history. The ratification of the ICCPR should profoundly alter the traditional "state action" limitation in cases seeking to vindicate constitutionally protected rights. The ICCPR should form the constitutional arguments made in the case of Rael et al. v. Taylor.(6)

   The ICCPR was originally drafted as a blueprint for a society where human rights are respected by all. The effect on traditional constitutional analysis is the creation of a transparent method for the examination of all rights involved and the value judgments underlying them. This is true even when the alleged violator has traditionally been considered a private actor and therefore free from scrutiny.(7)

   This article will provide a short history of Rael v. Taylor; outline the constitutional analysis of the case prior to the ICCPR; discuss the ratification of the ICCPR and its meaning; and conclude with a constitutional analysis of the Rael case in light of the ICCPR's ratification.

2. THE HISTORY OF RAEL V. TAYLOR

   In 1844, what is now Costilla County, Colorado, was Mexican territory including the land presently in contention in the Rael v. Taylor case.(8) That year the Mexican government issued to Narcisco Beaubien and Stephen Luis Lee the Sangre de Cristo land grant on the condition they encourage settlement in that area.(9) As was the custom at that time, Mexican law granted the businessmen a portion of the land with the remainder to be divided among the successful homesteaders and common areas.(10) These common areas would be used as pastures and a mountain tract for hunting, fishing, wood gathering and as a water supply. The land used for these common areas was held by the community with usufructuary rights to all settlers, however, title to the land reserved for common use was most often held by the local government or community but it could be held by the federal government or by an individual.(11)

   In the early 1800's, Mexico and the United States were competing to expand into what is now the Southwestern part of the United States.(12) The Mexican government used attractive incentives to persuade settlers into this area.(13) It allowed title to be recognized without being formalized until after the land had already been settled. Even without formalized title, the general pattern of settlement was well known and systematically followed.(14) This made custom an extremely important part of Mexican land law during this period of rapid expansion.(15)

   The original grantees, Narcisco Beaubien and Stephen Luis Lee, were killed in 1847 during the Taos Rebellion.(16) Narcisco's father, Carlos Beaubien, inherited his son's undivided one-half interest in the property and purchased the remaining interest from Lee's estate.(17) By 1848, when the governance of that area was transferred from Mexico to the United States, the necessary steps to fulfill the terms of the land grant had been well underway.(18) Following a change of sovereignty, the underlying property claims remain unchanged.(19) Settlement in Sangre de Cristo continued in accord with the terms of original Mexican grant.(20)

   In accordance with the terms of the original Sangre de Cristo grant, a tract of mountain land was set aside as common area (la sierra). La sierra compromised a portion of what is now the Sangre de Cristo mountain range. In 1863, Beaubien memorialized the original Mexican settler's rights to this communal tract of land in a document referencing two types of common areas; pasture lands (la vega) and mountain lands (la sierra). This document states:

   Town of San Luis of Culebra, May 11, 1863 Book 1, Page 256.

   It has been decided that the Rito Seco lands shall remain uncultivated

   for the use of the residents of San Luis, San Pablo, and the Vallejos,

   and other inhabitants of said towns, for pastures and community

   grounds, etc. And that Rito Seco waters are hereby distributed among

   the said inhabitants of the town of San Luis, and those on the other

   side of the vega, whose lands lie in the vicinity and cannot be irrigated

   by the water of the Rio Culebra.

   All the inhabitants shall have the use of pasture, wood, water, and

   timber and the mills that have been erected shall remain where they

   are, not interfering with the rights of others. No stock shall be allowed

   in said lands, except for household purposes. Ail those who come as

   settlers shall agree to abide by the rules and regulations and shall

   help, as good citizens and be provided with the necessary weapons for

   the defense of the settlement.(21)

   This statement is entirely typical of Mexican land grants from that time.(22)

   The Mexican land grant's common area provisions are reminiscent of the practice brought by early settlers from England to United States.(23) La vega is one of the few common pasture areas recognized by United States courts West of the Mississippi River.(24)

   While the original Mexican homesteaders continued to settle the area, the United States government recognized the entire Sangre de Cristo grant.(25) During this period plots were provided to the settlers for cultivation and they were also given usufructuary rights to la vega and la sierra. In 1864, when Beaubien transferred the underlying fee in la sierra he reaffirmed the traditional usufructuary rights of the original Mexican settlers.(26)

   Geographic isolation, combined with the rather unusual property arrangement for that period of American legal history nurtured a unique, self-sufficient culture. The land provided all the of the settler's needs, from subsistence agriculture on their individual tracts, to hunting, fishing, and wood gathering on la sierra. In fact, without access to la sierra it would have been impossible for the settlers and their descendants to have survived. For one hundred and fifty years, the villages established by these settlers have continued to function in the same manner, preserving a unique American heritage found nowhere else. The language, religion, and customs practiced by the descendants of the original settlers can be traced back to historic Spanish-Indio culture.(27)

   In 1960, major changes began to unfold in Costilla County. John (Jack) T. Taylor, a North Carolina lumberman, purchased the underlying fee of approximately 77,000 acres of la sierra. His purchase included the Culebra Mountain, the only privately owned 14,000 foot mountain peak in the state of Colorado.(28) Taylor's deed contains language similar to the 1863 County Record, indicating he was fully aware that the descendants of the original settlers of the Sangre de Cristo grant had usufructuary rights to the property he was purchasing.(29) La sierra was adjacent to the individual tracts of property used by the original settlers for agricultural purposes and as common pasture lands [la vega?]. Taylor fenced in areas of la sierra, infringing the traditional usufructuary rights. This generated a steadily increasing tension which continues to divide the region.(30)

   In 1961, Taylor filed a Torrens action in Denver (250 miles from Costilla County) attempting to register his recently acquired property without recognizing the original settlers' descendants' usufructuary rights mentioned in his deed. Taylor named in his Torrens action only about 15% of the readily ascertainable landowners that would be affected.(31) The U.S. District Court granted Taylor's request to extinguish the usufructuary rights of the original settlers and their descendants even though they had been using that land in question in an uninterrupted fashion for more then one hundred and fifty years. The court did not require Taylor to give notice to almost 85% of the landowners who were affected by its decision.(32) This decision was affirmed by the U.S. Circuit Court.(33)

   With the court supported and enforced fencing of la sierra, tensions remained high and the residents of Costilla County suffered a major economic downturn, due to the dislocation from their traditional way of life. Descendants of the original settlers were arrested for attempting to exercise their traditional rights.(34) By 1978, Costilla County had the highest percentage in Colorado of residents receiving public assistance - about one half of all adult residents.(35) Residents were disaffected with a system that did not recognize their rights, and for the most part did not even give them a day in court before their rights were stripped away. The descendants of the original settlers suffered both material loss in well-being and a loss of dignity stemming from the loss of their traditional way of life and self-sufficiency.(36)

   In 1981, some of the descendants of the original settlers of the Sangre de Cristo land grant and residents of Costilla County banded...