File No. 711.1215/336.
I also inclose a copy of the award and the dissenting opinion of the
Mexican commissioner in Spanish.
[Inclosure.]
Minutes of meeting of the joint commission,
June 10, 1911.
El Paso, Tex., June 10, 1911.
The joint commission having been in session every day since the
close of argument on June 2, 1911, discussing evidence and
argument presented by the agents and counsel of the two
Governments, proceeded to ballot for the purpose of arriving at
a decision upon the following points, to wit:
I. Was the boundary line established by the treaties of 1848 and
1853 along the Rio Grande a fixed and invariable line?
Upon this question the Mexican commissioner voted yes; the United
States commissioner voted no; the presiding commissioner voted
no.
II. Has the United States of America acquired title to the
Chamizal tract by prescription?
Upon this question the Mexican commissioner voted no; the United
States commissioner voted no; the presiding commissioner voted
no.
III. Does the treaty of 1884 apply to all changes in the river
subsequent to the survey of 1852?
Upon this question the Mexican commissioner voted no; the United
States commissioner voted yes; the presiding commissioner voted
yes.
IV. Was the whole of the Chamizal tract, as defined in the
convention of 1910, formed by slow and gradual erosion and
deposit of alluvium within the meaning of Article I of the
convention of 1884?
Upon this question the Mexican commissioner voted no; the United
States commissioner voted yes; the presiding commissioner voted
no.
V. Was the formation of the Chamizal tract up to 1864 due to slow
and gradual erosion and deposit of alluvium within the meaning
of Article I of the treaty of 1884?
Upon this question the Mexican commissioner voted yes; the United
States commissioner declined to vote for the following
reasons:
1. Article 1 of the treaty of June 24, 1910, specifically bounds
the Chamizal tract with technical accuracy, while article 3
provides that “the commission shall decide solely and
exclusively as to whether the international title to the
Chamizal tract is in the United States of America or
Mexico.”
The United States commissioner does not believe that the
commission, in view of these provisions, is empowered to divide
the Chamizal tract between the two countries. This position was
specifically taken by counsel for the United States in argument
and not denied by counsel on behalf of Mexico. The commission in
dividing the Chamizal tract is taking action which was neither
requested nor contemplated by either party.
2. The majority of the commission in segregating the Chamizal
tract is about to apply to some portion of the tract a standard
not permitted by the treaties in force between the two
countries.
The convention of 1884 (see articles 1 and 2) and the convention
of 1889, establishing the present International Boundary
Commission (see, particularly, article 4), recognize only two
classes of changes in the river channel through natural causes,
i. e., (a) through the slow and gradual
erosion and deposit of alluvium (article 1, 1884) or erosion
(article 4, 1889); (b) by the abandonment
of an existing river bed and the opening of a new one (article
1, 1884), or avulsion (article 4, 1889).
[Page 573]
The convention of June 24, 1910, whereby the Chamizal case is
“again referred to the International Boundary Commission, which
shall be enlarged by the addition, for the purposes of the
consideration and decision of the aforesaid difference only”
(article 2), i. e., “said commission established by the
convention of 1889” (preamble) in no wise modifies the
provisions of the conventions of 1884–and 1889, which confines
the commission to the consideration of the two classes of
changes aforesaid, i. e., erosion and avulsion.
The presiding commissioner voted yes.
VI. Was the whole erosion which occurred in 1864 and after that
date slow and gradual within the meaning of the treaty of
1884?
Upon this question the Mexican commissioner voted that it was not
slow and gradual from 1864 to 1868. He has no data to cover each
of the succeeding years.
The United States commissioner declined to vote for the same
reasons stated with respect to the period from 1852 to 1864.
He furthermore declined to vote because the location of the river
in 1864 is wholly obliterated and its position can never be
reestablished in any one of the points of its former location,
and, therefore, even if the commission were empowered to render
a decision segregating that portion of the tract formed after
1864, provided the channel of 1864 could be located, a decision
to, this effect under the present circumstances, when the
channel can by no possibility be relocated, is void because it
is indeterminate, indefinite, and impossible of
accomplishment.
He furthermore pointed out that even if the commission were
empowered to segregate the Chamizal tract and even if it were
possible to relocate the river channel of 1864 and even if the
commission were empowered to ingraft upon the treaty a new class
of changes, i. e., some form of erosion which was not slow and
gradual within the meaning of the treaty, nevertheless the
evidence conclusively shows that this hypothetical violent and
rapid erosion could in no event have taken place except at
certain points where the river impinged upon the banks with
peculiar force, and not along the whole 3 miles where the tract
bounds upon the river. Even if it be conceded, as alleged, that
land at certain points in Mexico was destroyed by rapid and
violent erosion, and that the boundary commission during the
last 17 years has been in error in construing such erosion as
being within the terms of Article I of the convention of 1884,
nevertheless the undisputed evidence in the record shows that
the entire tract on the north bank of the river was formed by
slow and gradual deposit of alluvium. It was, in his judgment,
in any event, the duty of Mexico to establish by the
preponderance of evidence the identity of any portion of land
within the Chamizal tract alleged to have been formed as a
result of violent and rapid erosion.
The presiding commissioner voted that the erosion which was
caused by the flood of 1864 was not slow and gradual within the
meaning of the convention of 1884, nor was the erosion during
the succeeding years up to and including 1868 of that character.
There are no data, and it is immaterial to decide whether the
erosion subsequent to that date was slow and gradual or not,
inasmuch as the river had ceased to be the international
boundary.
The United States commissioner furthermore stated that he desired
to file a dissenting opinion in which he would discuss the
merits of the questions before the commission on the points as
to which he was compelled to dissent, as well as to elaborate
the grounds which induced him to believe that the commission by
its decision has departed from the terms of the submission.
The presiding commissioner was requested to prepare the award in
accordance with the above votes and the American and Mexican
commissioners to submit their opinions on the. points on which
they dissent.
The commission then adjourned until further notice.
