Interesting Cases That You’ve Never Heard Of — The Pueblo Indians

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. “[w]hen the term Indian is used in our acts of Congress, it means that savage and roaming race of red men given to war and the chase for a living, and wholly ignorant of the pursuits of civilized men.”

    I think this needs to be updated, don’t you?

  2. Ken Arromdee says:

    This seems very odd. The ruling says that paternalistic rules can’t be applied to them because they are considered civilized. Normally this would be good for them but it sounds like this particular paternalistic rule is helpful (and actually involves making sure that treaty promises are kept) and treating them as civilized hurts them.

    Were they still treated as civilized in cases where doing so actually did help them?

  3. Michael Obrecht says:

    If I interpret this correctly, it means that the New Mexico court used its reasoning as a justification to negate the sovereignty of the Pueblos and allow settlement by others against their wishes. Essentially, the Pueblo’s status as a ‘civilized’ people and success in sustaining their culture was the tool used against them.

  4. Gerard Magliocca says:

    No, that’s not correct. The Tribe just had to use an ejectment action rather than the federal statute to get rid of the interloper.

  5. Michael Obrecht says:

    Mr. Magliocca;
    Thank you for your response. I sense that the point I picked up on is peripheral to your purpose in posting this reference; I am reading the original article and when I complete it, perhaps I can provide a comment with more relevance,

  6. Joe says:

    I’m somewhat confused how a general statute was interpreted in that way. In 1834, “Indians” in the old SW were quite “civilized” in various ways, but just for that reason, I am not aware that the very fact they were “Indians” was in doubt. Seems to me that the Court put forth a somewhat stereotypical view of “Indian” (though maybe for that law the word was narrow, though again, I don’t see it) and applied in other contexts (“black” isn’t really “black” if you are a successful professional, the fact you still can be stopped by police aside) the theme can be troubling.