USA > New Mexico > History of New Mexico : its resources and people, Volume I > Part 55
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The various aspects of the political and legal condition of the pueblo tribes are thoroughly discussed in the following abstracts from two notable decisions of the supreme court of New Mexico. The first, which was ren-
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dered in 1869, was in the case of the United States vs. Jose Juan Lucero, of Santa Ana county, the petition charging Lucero with having entered lands belonging to the Indians of the pueblo of Cochiti. The decision was founded on the intercourse act of June 30, 1834. The supreme court of New Mexico found that this act, passed when there were no pueblo Indians upon United States territory, referred to the wild tribes of Indians then roaming throughout the western country, given to murder, robbery and theft, living on the game of the mountains, the forest and the plains, unac- customed to the cultivation of the soil, and unwilling to follow the pursuits of civilized man. The idea that a handful of wild, half-naked, thieving, plundering, murdering savages should be dignified with the sovereign at- tributes of nations, enter into solemn treaties, and claim a country five hundred miles wide by one thousand miles long as theirs in fee simple, because they hunted buffalo and antelope over it, might do for beautiful reading in Cooper's novels or Longfellow's "Hiawatha," but is unsuited to the intelligence and justice of this age, or the natural rights of man- kind.
The theory that the Spanish adventurers, de Vaca, Castillo, Dorantes, Estefano and others, found the pueblo Indians of New Mexico a wild, savage and barbarous race : that they conquered them and reduced them to subjection, placed them in villages and taught them the arts of civilized life, is an unadulterated fiction, and contradicted by the uniform history of the Spanish explorers for over two hundred years. The fact is that they found these Indians, on their advent into New Mexico, a peaceful, quiet and industrious people, residing in villages for their protection against the wild Indians, and living by the cultivation of the soil. In the Spanish narratives these villages are deserted, the habits and pursuits of the inhab- itants delineated, and many ancient places are accurately described. That the Spanish placed them under subjection, treated them with cruelty, but planted among them the Catholic religion and an improved civilization, is true ; but on account of their civilization and peaceful condition they found them easy victims of their cupidity and despotic rule. This domineering continued until 1680, when the pueblo Indians rebelled against their Span- ish masters, and expelled them all from New Mexico. It was not until 1693 that the Spaniards obtained sufficient force to conquer, subdue and chastise them. In 1689 (to follow the court's decision) Spain had exe- cuted to the various pueblos of New Mexico their titles to their lands, in written agreements. Upon the establishment of the independence of Mexico from old Spain, these titles continued to be respected, and the government of the United States, in the treaty of Guadalupe Hidalgo, pledged her faith as a nation to maintain and respect them. When the Republic of Mexico was compelled by the chances of unsuccessful war to part with a portion of her territory and people, she threw around them by treaty all - the safeguards to their civil, religious and political rights arising out of honor among men and faith among nations.
Properly to understand this question it should be known that after the conquest of the City of Mexico bv Cortez in 1521, the Spanish viceroys in Mexico assumed and exercised all the privileges of royalty. In every- thing but in name they were despotic sovereigns. Their rule was partial and unjust. The few favorites of the Spanish crown held all the offices in church and state, and considered the great body of Mexican people-
Vol. I. 25
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equally honest and more industrious than themselves-servants and peons. The Indians and Mexicans rebelled against such tyranny, and under the leadership of Iturbide struck for and obtained independence. The Indians rendered easy the overthrow of the unjust rule of the viceroys of Spain, and established the empire under Iturbide.
Inasmuch as there is no law of the Republic of Mexico taking away the right of citizenship with which the Indian race was invested as far back as February 24, 1821, the conclusion is inevitable that they were in fact Mexican citizens at the date of the treaty of Guadalupe Hidalgo. Fol- lowing this convention, under authority of Congress, the surveyor-general of New Mexico examined and reported upon the titles of the pueblos of New Mexico. He found twenty-one pueblos in all, with an aggregate population of about 8,000 persons, and reported the titles of seventeen pueblos for confirmation as bona fide titles. December 22, 1858, Congress confirmed these titles. For years before it had made an appropriation of ten thousand dollars "for the expenses of making presents of agricultural implements and farming utensils" to these people.
In subsequent legislation by Congress the pueblos of Tecolate, Chilili and Belen are referred to as "towns," not pueblos. It is also a noteworthy fact that while numerous treaties have been made with wild tribes of In- dians in New Mexico, none has been entered into between the United States government and the pueblo Indians. No person has ever been authorized (i. e., previous to this decision, 1869) by Congress to be ap- pointed agent for the pueblo Indians, nor has any person ever been com- missioned agent for them; and the designation of an agent for the pueblos by the Indian department is without any authority of Congress or the decision of any judicial tribunal authorized to pass upon the question.
Let us look very briefly at the history of territorial legislation with regard to the pueblo Indians. In December, 1847, the first legislature of the Territory, convened by order of General Kearny, passed an act pro- viding that pueblo Indians should be created and constituted "bodies politic and corporate," that they may "sue and be sued, plead and be impleaded, bring and defend in any court of law or equity all such actions, pleas and matters whatsoever," etc., and "resist any encroachment, claim or trespass made upon such lands, tenements or hereditaments belonging to said inhab- itants, or any individual." On January 10, 1853, a law was passed pro- hibiting the sale of liquor to Indians, with a proviso "that the pueblo In- dians that live among us are not included in the word Indian." February 16, 1854, the legislature of New Mexico passed an act providing that the pueblo Indians, "for the present, and until they shall be declared by the Congress of the United States to have the right, are excluded from the privilege of voting at the popular elections of the Territory, errept in the elections for overseers of ditches to which they belong and in the elections proper to their own pueblos." As this act has never been disproved by Congress, nor passed upon by the supreme court of the United States, it remains in force in New Mexico, depriving the pueblo Indians of the fran- chise.
By the provision of the convention of Guadalupe Hidalgo there was conferred upon the Mexicans established in New Mexico the right to re- tain the title and rights of Mexican citizens, or acquire those of citizens of the United States, and the election was required to be made within one
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year after the exchange of ratifications of that treaty. Colonel Washington made proclamation requiring the people to elect by signing a declaration before the clerk of the courts in the various districts, if they wished to retain the title and rights of Mexican citizens. In that list the name of not a single pueblo Indian is found, and hence these people became full- fledged citizens of the United States.
In handing down a remarkable decision in a case involving the ques- tions immediately under discussion, the supreme court of New Mexico, in 1869, says: "This court * * does not consider it proper to assent to the withdrawal of eight thousand citizens of New Mexico from the operation of the laws made to secure and maintain them in their liberty and property, and consign their liberty and property to a system of laws and trade made for wandering savages and administered by the agents of the Indian department. If such a destiny is in store for a large number of the most law-abiding, sober and industrious people of New Mexico, it must be the result of the direct legislation of Congress or the mandate of the supreme court. * This court has known the conduct and habits of these Indians for eighteen or twenty years, and we say, without the fear of successful contradiction, that you may pick out one thousand of the best Americans in New Mexico, and one thousand of the best Mexicans in New Mexico, and one thousand of the worst pueblo Indians, and there will be found less, vastly less, murder, robbery, theft, or other crimes than among the thousand of the best Mexicans or Americans in New Mex- ico. * *
*% A law made for wild, wandering savages, to be extended over a people living for three centuries in fenced abodes and cultivating the soil for the maintenance of themselves and families, and giving an example of virtue, honesty and industry to their more civilized neighbors, in this enlightened age of progress and proper understanding of the civil rights of man, is considered by this court as wholly inapplicable to the pueblo Indians of New Mexico."
A much more recent case, primarily concerned with the taxability of pueblo lands, but involving a discussion of the general status of the pueblo Indians, was that of the Territory of New Mexico vs. Person, etc., in the delinquent tax list of Bernalillo county for 1899. The opinion, from which the following facts are condensed, was rendered March 3, 1904.
June 4, 1900, a suit for the collection of taxes which were delinquent for the first half of the year 1899 was begun. The suit covered lands in- cluded in a grant which is the property of pueblo Indians in Bernalillo county. The single question presented was as to whether the lands of pueblo Indians are taxable. When the earliest Spanish explorers entered the Territory now embraced within the limits of New Mexico these Indians were found to be a peaceful, industrious and civilized people, living in pueblos and following agricultural and pastoral pursuits. In 1689, and
(NOTE .- The proclamation issued by Colonel John M. Washington, acting gov- ernor of the Territory, April 21, 1848, was not necessary to enable Mexican residents of the Territory to elect to remain Mexican citizens; but in the absence of any such proclamation, a formal declaration of an intention to retain such citizenship, made before a court having a record and a clerk to keep the same, would have been sufficient. So says decision Supreme Court. New Mexico, 1859. But he had com- petent authority, as the executive head of the de facto government then existing in the Territory, to issue such proclamation.)
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within a few years subsequent, the Spanish government granted them their lands. So long as they remained under the Spanish rule, certain restric- tions were placed upon the alienation of their property. As late as March 13, 18II, they were exempt from taxation. They seem to have been con- sidered by the Spanish as wards of the government, and entitled to special privileges and protection. But a complete change in the status of these people took place when Mexico threw off the Spanish yoke. These Aztecs then far outnumbered the Mexicans, and it was but natural that in the formation of a new government they should take a prominent part and be placed upon an equal footing as to all civil and political rights.
Therefore we find that the revolutionary government of New Mexico, on February 24, 1821, a short time before the subversion of Spanish power, adopted what is known as the "Plan of Iguala" (Iguala was the head- quarters of the army of the revolution), which declared that all the inhab- itants of New Spain, without distinction, whether Europeans, Africans or Indians, are citizens of this monarchy, with the right to be employed in any post, according to their merit and virtues, "and that the person and property of every citizen shall be respected and protected by the govern- ment." The same principles were reaffirmed in the treaty of Cordova, August 24, 1821, and in the Declaration of Independence October 6, 1821. The Mexican Congress thereafter followed with at least four acts, in each of which the "Plan of Iguala" was uniformly considered as a fixed prin- ciple of Mexican law. One of the most important of these acts was passed August 18, 1824, only twenty-four years before the treaty of Guadalupe Hidalgo, whereby the United States acquired this Territory and these people. How far-reaching in its consequence this policy and practice has been may be made more apparent when we recall the fact that Maximilian's defeat by the Mexican troops was accomplished under the leadership of General Juarez, a full-blooded Aztec Indian, and that Porfirio Diaz, who for about a quarter of a century has governed the Republic of Mexico as its president, is an illustrious specimen of this Aztec race.
It must be understood, then, that at the date of the treaty of Guada- lupe Hidalgo there came to ns a people possessed of all the powers, privi- leges and immunities of any other citizens of Mexico. This fact neces- sarily carried with it the right to take, hold and dispose of their property, a right which has never been directly passed upon by the supreme court of 'the United States. There is, therefore, no doubt that these Indians possess the right of alienation of property. If so, it follows that their property is subject to taxation.
It has been urged that these people are wards of the government, and therefore entitled to exemption from the burden of taxation. While it is true that Congress has, from time to time, legislated concerning these Indians, and there have been appointed agents and special attorneys for them, Congress has never assumed to reduce them to a state of tutelage, and no act of the government has ever contemplated a change in their status. The federal government has never assumed to take control of their property; but, on the other hand, it has quit-claimed to them and issued its patent for all their lands. The furnishing of agents and attor- neys has been a mere gratuitv on the part of the government.
The supreme court of the United States, in deciding an appeal in an action against Antonio Joseph of Ojo Caliente, seeking to compel him to
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leave a pueblo Indian grant he occupied, said : "The pueblo Indians * hold their lands by right superior to the United States. Their title dates back to grants made by the government of Spain before the Mexican revolution-a title which was fully recognized by the Mexican government, and protected by it in the treaty of Guadalupe Hidalgo, by which this country and the allegiance of its inhabitants were transferred to the United States. * * It is unnecessary to waste words to prove that this was a recognition of the title previously held by these people, and a disclaimer by the government of any right of present or future interference, except such as would be exercised in the case of a person holding a competence and perfect in his individual right."
For more than fifty years succeeding the American occupation and control of New Mexican territory the lands of these pueblo Indians escaped taxation. Down to the year 1854, when the legislature passed an act de- priving them of the privilege of voting, except for the election of overseers of agencies and elections proper to their own pueblos, they were generally regarded by the people of the Territory as citizens and as possessed of all the rights of the same. They participated in elections, and held office in Peña Blanca and other places in the Territory. They sat as grand and petit jurors in at least one term of court in Bernalillo county. Through the efforts of John Ward, one of the early agents appointed for them, a tacit agreement was reached between them and the people of the counties where they resided, to the effect that so long as they refrained from voting they should not be taxed. They thus drifted out of the political life of the Territory. Nevertheless, the highest court of New Mexico has de- clared that such an agreement, if made, has no binding force, "either upon the Indians or the Territory." The court also held that these Indians are citizens of New Mexico and of the United States, hold their lands with full power of alienation, and are, as such, subject to taxation.
The United States government, recognizing the desirability of pro- tecting the pueblo Indians of New Mexico in the courts, their status having remained somewhat indefinite, in spite of the stipulations of the treaty of Guadalupe Hidalgo conferring upon them full rights of citizenship, in 1898 appointed George Hill Howard as their attorney. He was succeeded by William H. Pope, and the latter by ex-Judge A. J. Abbott, their present attorney. The conditions leading to the appointment of attorneys for these Indians were anomalous. The lands occupied by them were not simply reservations, but had been patented to them, as to other citizens. Hence there arose the necessity for defense in case of trespass or occupation of their lands by others-an imposition practiced upon them by the native people with frequency. The patents had been issued in 1863, under con- gressional acts, in accordance with our treaty with Mexico. The pueblo attorneys therefore regard the Indians as citizens of the United States, and each pueblo is a corporation, by act of the Territorial legislature.
The questions of the taxation of the pueblo Indians and the sale of intoxicating liquors to them have been two of the most important which their attorneys have been called upon to carry into the courts. The supreme court of New Mexico has decided that pueblo Indians are citizens of the
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United States, and therefore citizens of the Territory; and the same court has also decided that their lands are taxable. Subsequent to these de- cisions, however, Congress has passed an act exempting their property, real and personal, from taxation. They may sue and be sued like any other citizens; but by an act of the legislature of the Territory, passed in 1852, they are denied the privilege of voting at general elections.
A number of interesting suits at law to which these Indians have been parties, in addition to those already mentioned, have occurred. In 1904, Juan Rey Abeyta, an inhabitant of the Isleta pueblo, brought suit against the local authorities of that pueblo for damages for false imprisonment, because the plaintiff did not recognize the power of the pueblo to imprison him for violation of the rules of the pueblo. He and three or four others had rented property to one not an inhabitant of the pueblo, in violation of the rules for the government of the pueblo, and were cast into the local jail. The case was taken before the district judge on a writ of habeas corpus and the plaintiff was released from jail, after having remained in confinement four days. He sued the pueblo, as a corporation, for five thou- sand dollars damages, and was awarded a verdict of two hundred dollars, although it was shown that he admitted having violated the rules of the pueblo in renting his land as noted. The Indians of the various pueblos are, as a rule, very loyal to their ancient customs and obedient to their local rules of government, and Juan Rey Abeyta, like others who have de- fied public sentiment, has been ostracized by his fellows. Though few cases of this character come before the courts of the Territory, there have been not a few cases of violation of the pueblo rules, and in every case the least punishment that can be expected is complete ostracism.
Hon A. J. Abbott, who has been attorney for the pueblo Indians since 1902, was born in Ohio. He was admitted to the bar in Kansas, where he began the practice of his profession, and where for nine years he occu- pied the bench in the twenty-seventh judicial district, with headquarters at Garden City. He afterward located in Trinidad, where he continued in practice for six years. In 1901 he removed to Santa Fé, and when Hon. W. H. Pope was appointed to the bench in the Philippine Islands, Judge Abbott was named to succeed him. He compiled the eleventh and twelfth New Mexico reports, and has become known as a practitioner of rare ability and unimpeachable integrity. His son, E. C. Abbott, is district attorney for the first judicial district of the Territory, and assistant attor- ney general.
APACHES.
Of the hostile Indians those who have furnished the most trouble in the period since the Civil war were the Apaches. Many of the Apache raids, however, were incursions by Indians whose proper limits were in the Territory of Arizona. The northern part of New Mexico, outside of the Navajo country, was occupied mainly by the Jicarilla branch of this tribe. The Utes or Utahs also occupied this region conjointly, being related by blood and of much the same disposition. In the early years of the Territory they were an element of danger and injury, being very prone to steal and commit even worse depredations. The first treaty with them was made by Governor Calhoun in 1851. But owing to the failure of the govern-
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ment to distribute them goods, they went on the war path in 1854 and were not reduced until after several pitched battles, in which a number of sol- diers lost their lives. During the war they sympathized with the Union cause, and in general remained friendly, although their turbulent nature caused many brawls and individual crimes.
The number of the Jicarillas was between 750 and 1,000, while the Utes were about twice the number. Their agencies were located at Cimar- ron, east of the Rio Grande, and at Abiquiu, and later at Tierra Amarilla on the west. During the latter sixties efforts were made to remove the Utes from the Territory. A treaty was made to that effect in 1868, but the Utes refused to go, and nothing was accomplished except the moving of the agency to Tierra Amarilla. Another treaty was made in 1873, but it was not until 1878 that the authorities succeeded in removing the Utes to their new reservation in Colorado, with which removal they disappear as a tribe from New Mexican history.
The Jicarillas have likewise had a checkered history. It was once proposed to move them to Bosque Redondo, but they objected. They claimed ownership in the Maxwell ranch, and when it was sold there was considerable difficulty in satisfying them. The Cimarron agency was abolished in 1872, and an effort made to remove these Indians to Fort Stanton or Tularosa. Instead most of them were permitted to go to Tierra Amarilla. On the departure of the Utes in 1878, another attempt was made to place them at Fort Stanton, but only a few went there. In July, 1880, a new* reservation was created on the Rio Navajo, in Rio Arriba county, where the Indians lived until 1883, when they were transferred to Fort Stanton. They were never content with their Fort Stanton home, and it was only a few years when the authorities were convinced that the former reservation was a better place for them, and they were accord- ingly returned and have since lived there. A recent census shows the population to be 774. The Indians were proved to be gradually approach- ing a self-supporting condition.
The Apache Indians of the southern portion of the Territory are for the greater part the Mescalero tribe, although the Mimbres and Mogol- lons furnished much trouble in earlier days. Some of the Gila River bands were collected at Fort Webster in 1853, but as soon as supplies ceased to be given regularly or satisfactorily no restraint could be exercised over them. The Mescaleros began giving trouble about the same time, and were not subdued until March, 1855, from which time an agency was main- tained for them at Fort Stanton. All restraint was removed on the out- break of the Civil war and the abandonment of Fort Stanton, but after the defeat and withdrawal of the Confederate forces and General Carle- ton and Kit Carson waged an effectual campaign, some 400 of the Mesca- leros were brought together at Fort Sumner or Bosque Redondo. Here they were stationed until 1866, when they quarreled with the Navajoes and left the reservation. Some 300 were united at Fort Stanton in 1871, and the number increased to about 800. This has since remained the Mescalero or Fort Stanton Apache reservation, where the Jicarillas also lived during a few years in the eighties.
The Mimbres and Mogollons were generally identified with Arizona, where the most destructive raids of the later period originated. There were about 1800 of these southern Apaches, and in the early seventies
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