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

Several years ago I wrote an article that examined how the debate over Native American rights, especially the Cherokee Removal, influenced the framers of the Fourteenth Amendment.  The paper also explained there that this component of the original understanding should alter the way that we think about equal protection by introducing the possibility that the regulation of cultural choices, not just immutable traits, could be subjected to heightened scrutiny.  I must admit that I’m disappointed that nobody really picked up on this idea, but I thought I’d talk about one intriguing case that fleshes out the concept somewhat.

In United States v. Joseph, 94 U.S. 614 (1876), the Supreme Court held that the Pueblo Indians of New Mexico were not an Indian Tribe under federal law.  An 1834 statute prohibited anyone, under penalty of a fine, from settling on land secured to a Tribe by a treaty with the Federal Government.  The United States brought an action seeking to fine somebody who took a homestead on Pueblo land. The New Mexico Territorial Supreme Court rejected this action, on the grounds that the Pueblos were civilized and not an Indian Tribe. That court pointed out that the Pueblos lived in villages, were farmers, spoke Spanish, and were Christian.  By contrast, “[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.”  Though the Court conceded that the Pueblos could be racially defined as Indians, it explained that this was irrelevant.  Culture was what mattered.

The U.S. Supreme Court unanimously affirmed in an opinion by Justice Miller.  He distinguished the Pueblos from other tribes in the territory acquired during the Mexican-American War, who were incapable of self-government and therefore required “guardian care.” Although the Pueblos held their land in common rather than in fee simple, “they only resemble in this regard the Shakers and other communistic societies in this country, and cannot for that reason be classed with the Indian tribes . . .”.

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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.