Four Square Leagues: Pueblo Indian Land in New Mexico

9. The Pueblos Come Under U.S. Rule

237 c h a p t e r 9 The Pueblos Come Under U.S. Rule I n the course of more than two centuries of Spanish rule, the Pueblos enjoyed some benefits from the special status the Hispanos accorded them. The institution of protector of the Indians, the fairly consistent respect shown to the Pueblo league, at least in theory, and the occasional willingness to rule against conflicting non-Indian claims that infringed on Pueblo lands all reflected a well-intentioned policy of protection of Pueblo rights. That policy grew out of the early debates about the nature of the indigenous peoples of the Americas, the reforms initiated by the writings of Bartolomé de las Casas, and the favorable laws protecting Indian lands in the Recopilación, although admittedly the Spanish policy of defining and protecting Indian land was often not followed in practice. Whether that policy of protection of Indian land remained in place after Mexican independence beginning in 1821 is uncertain. The doctrine of citizenship and equality of all persons embodied in the Mexican Plan of Iguala, which Agustín de Iturbide proclaimed on 24 February 1821, and the 9 February 1811 laws of the Spanish Cortes, arguably meant that pueblos no longer enjoyed special status.1 Whether due to a change in the law or simply the ineptitude and corruption of local officials, however, it seems clear that the pueblos began to experience increased intrusions onto their lands by non-Indians for which they had little or no remedy. It may have been for that reason that the Pueblos appeared to welcome the advent of U.S. rule in New Mexico, first manifested CHAPTER 9 238 by the arrival in Santa Fe of General Stephen W. Kearny and his Army of the West in 1846 and then by the 1848 ratification of the Treaty of Guadalupe Hidalgo, by which Mexico ceded to the United States what is now the American Southwest.2 As it happened, the Pueblos’ hope that the United States would protect their lands proved to be ill founded. Although the U.S. government had legal doctrines and policies in place that should have provided security for the Pueblos’ lands, they lost far more valuable land at the hands of the U.S. government, and especially the U.S. courts, within eighty years of the establishment of U.S. rule than they had under a quarter of a millennium of Spanish and Mexican rule. U.S. legal doctrines regarding relations with the native peoples within its borders or that lay in the path of its westward expansion were based in part on international law that reflected teachings of thinkers such as the sixteenthcentury Spanish Dominican philosopher, theologian, and jurist Francisco de Vitoria. Vitoria laid down several key principles that soon became incorporated into international law: (1) that Indian nations possessed both rights of property in their lands and sovereign powers over them; (2) that lands could be acquired from Indian tribes only with their consent or as a result of a “just war”; and (3) that acquisition of Indian lands was a right reserved to the governments of the colonial powers and could not be undertaken by private individuals .3 (An important implication of these principles, which Vitoria also proclaimed, is that a European power’s mere discovery of lands did not give that government title to the lands discovered. The Indians retained their titles unless the lands were lawfully acquired from them.) Some of these principles are reflected in three early and seminal decisions of the U.S. Supreme Court: Cherokee Nation v. Georgia, Worcester v. Georgia, and Johnson v. M’Intosh, known as the “Marshall trilogy” for their author, Chief Justice John Marshall of Virginia.4 In Cherokee Nation, the tribe brought an original action in the Supreme Court seeking to prevent the state of Georgia’s aggressive effort to abolish the huge Cherokee Reservation within that state and to subject the Cherokee people to state jurisdiction and control. The first issue the court had to address was whether the Cherokee Nation could bring an original action against Georgia in the Supreme Court, based on the provision of article 3, section 2, of the Constitution that gives that court original jurisdiction over controversies “between a State . . . and foreign States.” The court ultimately rejected the 239 the pueblos come under u.s. rule Cherokee claim that it was a “foreign State...