NM 2024-02-AL 2024-01-25

Who legally owns the Santa Fe Plaza Obelisk that was toppled in 2020, and where is it now?

Short answer: The AG declined to make a definitive ownership ruling because that is a factual question for a court, not the AG. The most likely owner is the City of Santa Fe under a 1901 federal land patent that conveyed the Plaza land (with the Obelisk on it) to the City. There is no record of federal claim of ownership since 1901, and no formal transfer to the State. The Obelisk is currently in a secure undisclosed location held by the City.

Disclaimer: This is an official New Mexico Attorney General advisory letter. AG opinions and advisory letters are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed New Mexico attorney for advice on your specific situation.

Plain-English summary

Senator George Munoz asked the AG about the legal status of the Plaza Obelisk in Santa Fe, which was a Civil War-era memorial that was toppled during a public protest in 2020. Specifically he asked who owns it, and where it is now. The AG's response is an advisory letter, not a formal opinion, because some of what was asked depends on factual disputes the AG does not resolve.

On ownership, the AG laid out what is documented:

The Obelisk was commissioned in 1867 by the Territorial Legislative Assembly, a federal entity that governed the Territory of New Mexico, and constructed in 1869. At that time the monument and the land it stood on belonged to the federal government.
On February 16, 1901, the federal government issued a patent granting lands to the City of Santa Fe. The patent was filed with the territorial precursor of the County Clerk on March 8, 1901. The grant reserved certain specified federal facilities and lands but did not reserve the Soldiers Monument or its supporting land. In fact, the grant specifically used the Soldiers Monument as the reference point for measuring the size of the land grant.
Since 1901, no federal claim of ownership has been recorded.
No formal transfer of ownership from the City of Santa Fe to the State of New Mexico is recorded.
The Obelisk is the subject of pending litigation in Union Protectiva v. Webber & City of Santa Fe (D-101-CV-2021-01373), in which the plaintiff argues the Obelisk falls under the New Mexico Prehistoric and Historic Sites Preservation Act. The City did not deny ownership in its pleadings.
An employee of the General Services Department raised the possibility of state ownership but did not point to any authority supporting that claim.

The AG concluded that ownership most likely lies with the City of Santa Fe based on the documented chain, but declined to issue a definitive ownership ruling because that is a factual matter a court must resolve.

On location, the AG reported that the City Attorney's Office told the AG the Obelisk is being held in a secure, undisclosed location for security reasons because of concern about further harm. Public records requests for access or location information should be directed to City Attorney Erin McSherry.

What this means for you

If you live in Santa Fe or care about the Plaza

The most likely legal owner is the City of Santa Fe. Decisions about whether and how to restore, redisplay, contextualize, or relocate the Obelisk are most likely the City's to make, with input from the historic preservation processes that apply to monuments of this kind. The pending Union Protectiva litigation may influence how those decisions can be made.

If you're involved in historic preservation

The Prehistoric and Historic Sites Preservation Act may apply to the Obelisk per the Union Protectiva complaint's theory. If the court agrees, that adds a layer of state-level preservation review to whatever decisions the City makes about the Obelisk's future. Worth tracking the litigation for clarification of the Act's scope.

If you represent a municipality with contested public monuments

The Santa Fe situation is a useful reference for how to handle ownership disputes after a monument is removed. Key takeaways from the AG's analysis: (1) document the historical chain of title carefully, including any federal patent; (2) recognize that the AG will not adjudicate ownership disputes (you need a court for that); (3) coordinate with the city attorney about any state preservation-act claims; (4) be transparent about the monument's current location and chain of custody, even if exact location is withheld for security reasons.

If you're a journalist or researcher covering the Obelisk story

The AG's advisory letter confirms several factual touchstones useful for reporting: the City of Santa Fe holds the monument; its location is undisclosed for security reasons; the chain of ownership runs through a documented 1901 federal land patent; pending litigation may resolve open questions about ownership and preservation status.

If you're with the New Mexico General Services Department

The advisory letter notes that an employee of GSD raised the possibility of state ownership when contacted by the AG. If the State has an actual claim to ownership, this is the moment to articulate the legal basis (a transfer document, a recorded conveyance, a statutory provision). The AG's letter reads as inviting the State to make its case if such a basis exists, while observing that no documentary support has surfaced so far.

Common questions

Why did the AG issue an advisory letter instead of a formal opinion?

Because the questions involve factual disputes (who actually owns the Obelisk, where it is now) that the AG cannot adjudicate. Under NMSA § 8-5-2(D), AG opinions address "questions of law." Advisory letters can offer guidance on issues that mix law and fact without purporting to resolve the factual side. Here the AG laid out the documentary record and identified the gaps, but stopped short of issuing a binding ownership determination.

So who owns the Obelisk?

Most likely the City of Santa Fe, based on the 1901 federal land patent that conveyed the Plaza lands to the City without reserving the monument. But this is the AG's read of the documents, not a court's holding. The pending Union Protectiva v. Webber litigation may produce a definitive answer.

Where is the Obelisk now?

In a secure, undisclosed location, held by the City of Santa Fe. The City Attorney's Office (Attorney Erin McSherry) is the contact for public records requests about access or location.

Could the State of New Mexico own the Obelisk?

In theory, but no documentary support has surfaced. The AG contacted GSD, and a GSD employee raised the question without pointing to authority. There is no recorded transfer of ownership from the City to the State, and the State did not assert ownership in the Union Protectiva litigation. The State's claim is therefore unsupported on the present record.

What is the New Mexico Prehistoric and Historic Sites Preservation Act?

It is a state preservation statute that protects designated historic and prehistoric sites in New Mexico. The Union Protectiva complaint argues the Obelisk falls under the Act. If a court agrees, the Act may impose obligations on whoever owns or controls the Obelisk, particularly around restoration, removal, or alteration.

Could the Obelisk be returned to the Plaza?

That is a decision for the owner (most likely the City) to make, subject to any applicable preservation laws and to the outcome of the Union Protectiva litigation. The AG's letter does not take a position on what should happen to the Obelisk going forward.

Background and statutory framework

The Plaza Obelisk's history runs through three sovereignty layers. It was commissioned in 1867 by the Territorial Legislative Assembly, a federal entity created by the 1850 Organic Act Establishing the Territory of New Mexico. The federal government held the monument and underlying land at the time of construction in 1869. New Mexico became a state in 1912, after the relevant 1901 patent was already in place.

The 1901 federal land patent is the central document. It conveyed Santa Fe Plaza-area lands to the City of Santa Fe, with specifically enumerated reservations of certain federal facilities and lands. The Soldiers Monument was not in the reserved category. Notably, the grant used the Soldiers Monument as the survey reference point for measuring the granted area, which the AG treats as evidence that the Monument was within the conveyed area.

The advisory letter operates against the backdrop of NMSA § 8-5-2(D), which limits AG opinions to questions of law. The AG used that limit to decline ownership adjudication while still laying out the documentary record.

The Union Protectiva v. Webber litigation in the First Judicial District (D-101-CV-2021-01373) is pending. The plaintiff alleges the Obelisk is subject to the New Mexico Prehistoric and Historic Sites Preservation Act and that the City must "repair and restore" it. The City's answer to the first amended complaint admitted that the "Obelisk was funded by the Legislative Assembly of the Territory of New Mexico in the 1860s . . . and has stood within the Plaza." That admission is consistent with City ownership under the 1901 patent.

Citations

The advisory letter operates under NMSA § 8-5-2(D)'s grant of AG authority to address questions of law. The substantive citations are documentary: the 1850 Organic Act Establishing the Territory of New Mexico (which created the Territorial Legislative Assembly), the 1867 commissioning of the monument, the 1901 federal land patent to the City of Santa Fe (filed March 8, 1901), and the pending Union Protectiva v. Webber & City of Santa Fe litigation. The substantive state law potentially at issue is the New Mexico Prehistoric and Historic Sites Preservation Act.

Source

Original opinion text

January 25, 2024
The Honorable Senator George K. Munoz
P.O. Box 2679
Gallup, NM 87305
VIA ELECTRONIC MAIL TO: [email protected]
In Re: Opinion Request – Santa Fe Soldier's Monument, a/k/a the "Plaza Obelisk"

Dear Senator Munoz,

We are in receipt of your December 12, 2023, request for an Attorney General opinion regarding the legal status of the Plaza Obelisk that was removed during a recent public protest, as well as its current whereabouts. Please allow this correspondence to serve as this office's response to your inquiry.

First, regarding the legal status of the Obelisk, it was commissioned before statehood. The Territorial Legislative Assembly, a federal entity created in 1850 by the Organic Act Establishing the Territory of New Mexico, commissioned the monument in 1867 to honor New Mexico soldiers who fought in the Civil War. The Soldiers Monument was constructed in 1869. At that time, the monument and the land supporting it belonged to the Federal Government.

You have asked about current ownership of the Obelisk. Our office issues opinions on "question[s] of law." NMSA 1978, § 8-5-2(D) (1975). However, our office is not an adjudicative body, and we do not resolve factual disputes that may be resolved by a court. With that in mind, we are not aware of any judicial determination of ownership of the obelisk, and we are not in a position to adjudicate the issue.

Ownership may lie with the City of Santa Fe. On February 16, 1901, the Federal Government issued a patent granting lands to the City of Santa Fe, which was properly filed in the office of the territorial precursor to the County Clerk on March 8, 1901 (see attached). In the grant, the United States reserved specific facilities and lands to itself but did not reserve the Soldiers Monument and land to which it is appurtenant in the list of reserved property, or any equivalent description. In fact, the grant specifically mentioned the Soldiers Monument as the point of reference for measuring the size of the land grant.

The Obelisk is the subject of current litigation in the case of Union Protectiva v. Webber & the City of Santa Fe, No. D-101-CV-2021-01373. We have reviewed the complaint filed by the plaintiff in that matter, which asserts that the Obelisk is subject to the provisions of the New Mexico Prehistoric and Historic Sites Preservation Act. The complaint does not explicitly allege that the City owns the Obelisk. However, the original complaint alleged that the City "must repair and restore the Obelisk" (Compl. ¶ 60), and the City admitted in its answer to the first amended complaint that the "Obelisk was funded by the Legislative Assembly of the Territory of New Mexico in the 1860s . . . and has stood within the Plaza." (Answer ¶ 23) These allegations are consistent with City ownership under the federal land grant to the City.

We are not aware of any federal claim of ownership of the monument since the issuance of the patent in 1901. We are also not aware of any official claim of ownership by the State or any transfer of ownership from the City to the State. Upon receipt of your request, we contacted an employee of the General Services Department, and the employee raised a question about possible state ownership without directing our office to any authority that would support such a claim. Absent a definitive determination of ownership by a court, however, we refrain from drawing any final conclusion about current ownership.

As to the Obelisk's current whereabouts, the City Attorney's Office informed us that it is in a secure, undisclosed location for security reasons based on the concern that further harm may come to it. Requests for access to and the location of the Obelisk may be directed to City Attorney Erin McSherry.

Attorney General opinion requests are public documents. We consider this response to be a public document, as well. Please let us know if we may be of further assistance on this matter.

Sincerely,
Daniel Ross Rubin
Assistant Attorney General
Government Counsel and
Accountability Division