U.S. v. Lucero

• Decision Date: 31 January 1869
• Citation: 1 N.M. 422
• Parties: UNITED STATES OF AMERICAv.JOSE JUAN LUCERO.
• Court: New Mexico Supreme Court

1 N.M. 422

UNITED STATES OF AMERICA

v.JOSE JUAN LUCERO.

Supreme Court of the Territory of New Mexico.

Jan. 1869.

The treaty of Guadalupe Hidalgo was signed on the second of February, 1848, ratified on the twelfth of March, 1848, exchanged at Queretaro the thirtieth of May, 1848, and proclaimed the fourth of July, 1848.

*1 ERROR to the first judicial district, Santa Ana county, in an action of debt on a statute. The opinion states the case.

S. B. Elkins, for the plaintiff in error.M. Ashurst and Kirby Benedict, for the defendant in error. By Court, WATTS, C. J.:

On the thirteenth day of July, 1867, the United States, by S. B. Elkins, her attorney, instituted a suit in the first judicial district court, for the of Santa Ana county, New Mexico, said county being within the tenth judicial district for the territory of New Mexico.

This suit is an action of debt on statute, and the statute upon which it is founded will be found in vol. 4, Statutes at Large, page 730, section 11, and reads as follows, to wit:

“Section 11. And be it further enacted, that if any person shall make a settlement on any lands belonging, secured, or granted by treaty with the United States, to any Indian tribe, or shall survey, or attempt to survey, such lands, or designate the boundaries by marking trees or otherwise, such offender shall forfeit and pay the sum of one thousand dollars. And it shall, moreover, be lawful for the president of the United States to take such measures and employ such military force as he may judge necessary, to remove from the land as aforesaid any such person as aforesaid.”

It will not be forgotten that the intercourse act, which contains this penal section, was passed on June 30, 1834. The petition in this case charges the defendant, Lucero, with having entered upon lands belonging to the pueblo tribe of Indians, of the pueblo of Cochiti, and then sets out the boundaries of the land upon which Lucero settled, belonging to the said pueblo tribe of Indians, of the pueblo of Cochiti aforesaid, secured to them by patent from the United States. To this petition the defendant, Lucero, put in a general demurrer, to which the United States filed her joinder in demurrer, and at the July term of the United States district court, for the first judicial district of the territory of New Mexico, the cause was heard on demurrer, fully argued by counsel, and duly considered by the court, and the demurrer was sustained.

The United States declined to amend her petition, and judgment was rendered on the demurrer, that the said plaintiff be barred from further having or maintaining her aforesaid action against the said defendant, and that the costs be taxed against the United States. The United States now bring this case into this court by writ of error, and the only question of error made in this case is, that the demurrer to the petition was sustained by the court below, when it should have been overruled. This settlement of Lucero is alleged in the petition to have been made on the first day of January, 1866. Febuary 27, 1851, congress passed an act, the seventh section of which was as follows:

“Section 7. And be it further enacted, that all the laws now in force regulating trade and intercourse with the Indian tribes, or such provisions of the same as may be applicable, shall be and the same are hereby extended over the Indian tribes of New Mexico and Utah:” See 9 Stat. at Large, 587.

*2 A careful consideration of this act thus extending over New Mexico, the acts and all the acts regulating trade and intercourse, will satisfy the most incredulous, that, in the opinion of congress, some of these acts were, in some of their provisions, unsuited to be extended over all classes of people in New Mexico called Indians. The question now presents itself: Is there a class of Indians in New Mexico who do not come within the letter or spirit of said acts, and who are not operated upon by said acts, unless specially named and designated by congress as being within the provisions of those acts? When the intercourse act of June 30, 1834, was passed, and for ten years thereafter, New Mexico constituted a part of the republic of Mexico, and within the extended jurisdiction of the United States there existed no class of Indians called pueblo or town Indians. The term pueblo Indian is a term used to separate and distinguish them from the general class of Indians, such as existed within the United States in 1834; no such Indians then existed within the limits of the United States, and the law then passed could not have been intended to operate upon or affect a class of Indians differing widely from the Indians of the United States in their habits, manners, and customs. Who and what are the Indians for whom said laws were passed, and upon whom they were intended to operate? They were wandering savages, given to murder, robbery, and theft, living on the game of the mountains, the forest, and the plains, unaccustomed to the cultivation of the soil, and unwilling to follow the pursuits of cvilized man. Providence made this world for the use of the man who had the energy and industry to pull off his coat, and roll up his sleeves, and go to work on the land, cut down the trees, grub up the brush and briers, and stay there on it and work it for the support of himself and family, and a kind and thoughtful Providence did not charge man a single cent for the whole world made for mankind and intended for their benefit. Did the Indians ever purchase the land, or pay any one a single cent for it? Have they any deed or patent for it, or has it been devised to them by any one as their exclusive inheritance?

Land was intended and designed by Providence for the use of mankind, and the game that it produced was intended for those too lazy and indolent to cultivate the soil, and the soil was intended for the use and benefit of that honest man who had the fortitude and industry to reclaim it from its wild, barren, and desolate condition, and make it bloom with the products of an enlightened civilization. The idea that a handful of wild, half-naked, thieving, plundering, murdering savages should be dignified with the sovereign attributes 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 mankind. The government of the United States, while thus dignifying these savages with the title of quasi nations, with whom the United States has, from time to time, and quite often, entered into stipulations to purchase their lands, have generally purchased at an average of about two cents an acre, and then sold it out to the people at from one dollar and a quarter to ten dollars and fifty cents per acre, thus making a speculation off of the Indian lands of over fifty millions of dollars, if their title is anything but an ingenious and benevolent fiction. This property of over fifty millions of dollars, the treaties with the Indian tribes and sales of public lands to the people will demonstrate. Let us now look at the pueblo Indians of New Mexico, and see if there is anything in their past history or present condition which renders applicable to them a set of laws designed and intended to regulate the trade and intercourse of civilized man with wandering tribes of savages. Columbus, the daring hero of the seas, discovered America in 1492. December 11, 1620, the pilgrim fathers landed on a granite bowlder lying on the shore of Plymouth bay, in the new world. Now, it is worth while to know, that in 1530, ninety years before that event, Alsar Nunie Cohega de Baca, Alonzo del Castillo, Alejandro Andres Dorantes, and Estefana, a blackamoor, passed from the gulf of Mexico through Louisiana and Texas into New Mexico; spent several years in this valley of the Rio Grande, visiting the various villages of pueblo Indians in New Mexico during the year 1534, and passing south-west in May, 1536, and near the Pacific ocean, at the village of San Miguel, in Sonora, and finally reached the City of Mexico, after seven years' wandering in the wilderness. Our timid forefathers, who peeped out into the wilderness from their colony of Plymouth, are not to be compared to the true Spanish adventurers who planted the cross of civilization two thousand miles distant, in the valley of the Rio Grande, ninety years prior to their arrival in the new world.

*3 The theory, promulgated by some, and believed by many, that the Spanish adventurers 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 a pure and unadulterated fiction, and contradicted by the uniform history of the Spanish adventurers for over two hundred years. They found the pueblo 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. Their villages are described, their locality mentioned, their habits and pursuits delineated, and we learn that the old palace, not one hundred feet from where we are now holding court, was built upon the site of one of their ancient towns. That the Spanish placed them under subjection, treated them with cruelty, but planted the Catholic religion among them, and an improved civilization, is true; but they found them civilized, peaceful, and kind, and on that account they became an easy victim of their cupidity and despotic rule. This condition of domineering on the part of the Spaniards, and meek obedience on the part of the pueblo Indians, continued until 1670, when the pueblo Indians rebelled against their...