The United States v. Manuel Varela. the United States v. Martin Koslowski. the United States v. Anthony Joseph.

• Decision Date: 31 January 1874
• Citation: 1 N.M. 593
• Parties: THE UNITED STATESv.MANUEL VARELA.THE UNITED STATESv.MARTIN KOSLOWSKI.THE UNITED STATESv.ANTHONY JOSEPH.
• Court: New Mexico Supreme Court

1 N.M. 593

THE UNITED STATES

v.MANUEL VARELA.THE UNITED STATES

v.MARTIN KOSLOWSKI.THE UNITED STATES

v.ANTHONY JOSEPH.

Supreme Court of the Territory of New Mexico.

Jan. 1874.

An action for the penalty prescribed by the Intercourse Act of 1834, 25 U.S.C.A. § 180, for settling on Indian lands is maintainable only respecting land belonging, secured, or granted to an Indian tribe “by treaty with the United States,” and a petition not showing that fact, but alleging that the land settled on belonged to a pueblo of Indians, and was secured to them “by patent from the United States,” is bad on demurrer.

*1 APPEALS from the first judicial district. The plaintiffs in these causes appeal to this court from the judgment of the district court for the first judicial district, at the February and July terms, 1873, sustaining the defendants' demurrer to their petition. Plaintiffs sued to recover from defendants the sum of one thousand dollars prescribed in the eleventh section of the act of congress, approved June 30, 1834, entitled “An act to regulate trade and intercourse with the Indian tribes,” etc., for the alleged settlement by defendants on lands belonging to the pueblo tribes of Indians of Pecos and Taos, and secured to them by patents from the United States.

T. B. Catron, for the United States, relied upon the same points in each of these cases as in the preceding case of The United States v. Santistevan.Joab Houghton, for Varela and Koslowski, appellees.

This was an action of debt brought by the plaintiff against the defendants for a penalty for settling on the lands belonging to the Indians of the pueblo of Pecos. To the petition of said plaintiffs a demurrer was filed by said defendants, which demurrer was sustained by the court and the petition dismissed, and the cause brought to this court by appeal. The statute imposing a penalty upon persons for settling on Indian lands clearly intends such Indians as are not citizens, but under the wardship of the government: 4 U.S. Stats. at Large, sec. 11, p. 726. The pueblo Indians are citizens, and as free to enjoy all the privileges of citizenship as any other inhabitant in the country: Collection of decrees by Mariano Galvani, published in Mexico, vol. 1, secs. 12, 13, p. 4, and sec. 1, p. 32; also vol. 2, sec. 15, pp. 1, 80, 92, 127. The right of citizenship was secured to the Indians under the republic of Mexico by the laws above referred to, and those rights were secured to them under our government. Such citizens, by the treaty between the Mexican republic and the United States, bearing date February 2, 1848, and commonly known as the treaty of Guadalupe Hidalgo: See 9 U.S. Stat. at Large, pp. 929, 930, arts. 8, 9. All of the Mexican authorities above referred to declare all Indians, Africans, and Europeans, without distinction of race, to be entitled to citizenship, and consequently to the appellation of Mexican, the word used in said treaty, and as entitled to the protection of the United States government in their rights of citizenship, one of the most dear of which is the right to enjoy and dispose of their property as to them may seem most convenient. As to the right of Indians to take, hold, and dispose of their landed property, see United States v. Ritchie, 17 How. 539, 540. Then, as Indians have the right to dispose of their property the same as any other citizens, persons settling on their lands are not liable to the pains and penalties prescribed by the statute above referred to, and if the Indians should not be satisfied, as they are the only persons entitled to complain, they must resort to the courts of the country for relief, the same as any other citizen. The political department of the United States government does not regard the pueblo Indians of New Mexico as tribes, or holding tribal relations, but by act of congress, approved December 22, 1858, they are held as citizens, and patents for their lands are ordered to be given as such: 11 U.S. Stats. at Large, 374.

Breeden and Waldo, for Joseph, appellee. By Court, JOHNSON, J.:

*2 The matter of demurrer in these causes are substantially of the same nature and effect as in case No. 69, The United States v. Juan Santistevan, anle, 583, my opinion in which is here referred to as my opinion in these causes. The plaintiffs' petition in these causes does not show right of action under the statute, and for this reason, if for no other, the causes should be returned to the court below, for such disposition as may be agreeable to the practice of said court, the judgment of that court on demurrers being considered as sustained.^FNa1

^FNa1. Judgment affirmed in United States supreme court: 94 U.S. (4 Otto) 615. BRISTOL, J., delivered the following separate opinion in Joseph's case:

In this cause, and the three others referred to in this opinion, I concur in the opinion of the court in its conclusions as to the disposition of the same, though I arrive at those conclusions in some respects by a different course of reasoning. The material allegations in the declarations in this and the other causes referred to are substantially as follows: That the defendant at (naming the time) made a settlement on, and now occupies and is settled on, lands of the pueblo tribe of Indians of the pueblo of (naming it), situated in the county of (naming it), in said district and territory, said lands being described as follows, to wit (describing them), and then and there building houses and making fields thereon, contrary to the form of the statute in such case made and provided, said lands then and there, and at the time of bringing this suit, belonging to the said pueblo tribe of Indians, of the pueblo aforesaid, and secured to the said pueblo tribe of Indians of the pueblo aforesaid, by patent from the United States, whereby and by force of the statute in such case made and provided, an action hath accrued to the said United States, etc. A demurrer to the entire declaration was interposed in the court below, which was sustained, and judgment entered accordingly. The case is before this court on appeal from that judgment.

Like proceedings were had in the case of the United States v. Manuel Varela, the case of the United States v. Juan Santistevan, and the case of the United States v. Martin Koslowski, except that the two cases last named are here on writ of error. All these cases involve a like statement of facts, and as the same points are to be determined, they will all be disposed of in one opinion.

The only question to be considered is whether each of the declarations in these several causes presents a prima facie case under the statute. The act of congress of June 30, 1834, U.S. Stats. at Large, 729, is the only statute under which an action of this kind can be sustained. These several suits were, doubtless, intended to be brought under the eleventh section of that act. The term “any Indian tribe,” used in that section, must, in my opinion be construed with a certain limitation. It must be confined to Indian tribes holding certain specific relations with the United States, which are well defined in the several provisions of that act; and we must look to the entire act, to ascertain what these relations are. A subsequent act of congress has extended the provisions of the former act, as far as applicable, over the Indian tribes of New Mexico. But to determine the applicability of the latter act, reference must be made to the former act exclusively.

*3 It seems clear, that the Indian tribes to which these acts of congress can only apply, are such as may be classed as distinct, independent, domestic nations, having and maintaining distinct tribal organizations, capable of maintaining the relations of peace and war; who maintain their own natural rights, including that of governing themselves as independent political communities, and who as such independent political communities hold only treaty relations with the United States, very much on the footing of quasi foreign nations. The only other relations are such as the United States may gratuitously assume, as a superior power and as a protectorate. All these relations are expressly indicated by the acts referred to, and the various adjudications in reference to the class of Indian tribes embraced in such acts.

It would seem to follow from these relations that contracts and conveyances can be entered into and made between such communities and the government, only by treaty, and, therefore, that the only way in which the United States can contract with these independent domestic nations, whereby public lands can be...