“. . . the government has simply given us the papers, but the land was always ours.”
Pablo Abeita, testifying before Congress, 1923
Among Native Americans, the Pueblo Indians of New Mexico are unique in that they own their land in “fee simple,” which is like owning title and any improvements in perpetuity. Indian reservations, on the other hand, are owned by the United States and held in trust for the tribes. Unfortunately, Pueblo ownership is not as simple as it sounds.
As the Indians were sequentially governed by Spain, Mexico, and finally the United States, the journey toward establishing rightful ownership has been long, tortuous, and ongoing. After 20 years of research, the history to date was published in 2014 in Four Square Leagues.
This book combines discussions of the legal history of Pueblo lands during the Spanish, Mexican, and American periods in New Mexico, interspersed with case studies of how particular Pueblos dealt with specific land disputes, many of which occurred in the Spanish period and are described in detail in documents in the Spanish Archives of New Mexico.
There are three authors of this impressive book proclaimed “original, important, and unique.” Malcom Ebright is a historian, attorney, and the director of the Center for Land Grant Studies. Rick Hendricks is the New Mexico State Historian. Richard W. Hughes is a partner specializing in Indian law at Rothstein Donatelli LLP of Santa Fe. It was Richard whom I interviewed for this post.
The Spaniards invaded the Pueblo world near the end of the sixteenth century. They came in pursuit of silver and gold but also with the intention of imposing Spanish and Christian authority on natives. An act called the requerimiento was read aloud to Indians warning that if they did not submit to this governance, they faced punishment and war. Their own spirituality would have to yield to the doctrine that the power of Jesus had been given to Saint Peter, who endowed a line of popes with it including the one who gave Spain the rights to America.
With regard to property rights, Indians did not have a written language or documents, but they knew what landscape constituted “home.” It was mapped in their minds in songs and rituals, on rock and stone, and through landmarks and monuments that established boundaries. Home belonged to the collective, and there was no concept of individual ownership.
In spite of the absence early on of any written land grants, it was eventually established that each Pueblo was entitled to four square leagues of land, about 17,350 acres, whose center was the mission established by Franciscan priests. The story thereafter is extremely complicated as Pueblo land was invaded by Hispanos and Anglo American settlers and governance shifted from country to country.
Any early authentic documents regarding land grants from Spain disappeared during the Pueblo Revolt of 1680. After Spain reestablished control, Governor Domingo Jironza Pétriz de Cruzate may have made land grants, but the only documents to exist are presumed to be either copies or forgeries. There are 19 pueblos in New Mexico, and after New Mexico was admitted to the Union in 1912, authentic documents would have been very helpful to the United States in trying to address land ownership issues, but the deficit was huge.
As Richard pointed out, United States governance was afflicted by an odd dichotomy. The initial attitude was that the nation had a responsibility to provide “fostering care and protection” to Pueblo Indians because they were “essentially a simple, uninformed and inferior people” (language in a Supreme Court ruling). If they were acknowledged to be civilized, peaceful, and industrious as opposed to “savage,” then they would lose government protection. The idea was, as Richard put it, that “Good Indians were not Indians.” This worked for Hispanos and Anglo-Americans who hoped freely to continue to encroach on their lands.
This unresolved issue created a legal void that enabled settlers to usurp thousands of acres of Pueblo land, until in 1913 the Supreme Court ruled that the Pueblos were indeed considered “‘Indians’ under federal supervision and guardianship.” Then around 1920, Congress began to mobilize to clarify the situation. Republican Senator Holm O. Bursum of Socorro, New Mexico, led the way with legislation basically championing the property ownership of non-Indian settlers. His party controlled both Congress and the White House, and he apparently hoped this would help him get reelected.
It was a time when the empathy of the entire nation needed to be awakened, and Richard pointed to a woman who came to the rescue. It was Mabel Dodge Luhan, the wealthy socialite from New York who had settled in Taos, married a Pueblo Indian (Tony Luhan), and made her home a gathering place for artists, writers, and intellectuals, some of international fame. One visitor was an idealistic young man named John Collier, who was inculcated into the injustice of Bursum’s legislation. He eventually became the commissioner of Indian Affairs and was dedicated to transforming federal policy toward Native Americans.
Mabel’s guests, including British author D.H. Lawrence, created a “firestorm” of indignation over the Bursum bill, expressed in the writing of thousands of letters and articles that appeared in major national publications like The New York Times and the Christian Science Monitor.
The Bursum bill was defeated. Instead, the Pueblo Lands Act was passed in 1924 with the purported goal of providing a way to settle and adjudicate conflicting claims to Pueblo land. Unfortunately, it turned out to be almost as disadvantageous to the Pueblos. It provided for a three-member Pueblo Lands Board, which proceeded to rule so that the Pueblos lost 45,000 acres of land for which they were inadequately compensated, if at all.
THE ONGOING CHALLENGES
Clearly, the Pueblos were going to need expert legal assistance in addressing all the issues resulting from insufficient documentation and from governance that was ambivalent about Indian character and rights. This is where the expertise of Richard Hughes came to bear.
With a degree from Yale Law School, he spent eight years post graduation in legal services on the Navajo Reservation, then ten years in an Albuquerque firm specializing in representation of Indian tribes. He moved to Santa Fe in 1988 to join Rothstein Donatelli LLP. He led the way in establishing the firm’s expertise in Indian law in Santa Fe and five attorneys in the firm’s Tempe, Arizona, office.
Going forward, he sees ongoing problems relative to the trespassing of Pueblo lands, including by entire cities like Española, which intrudes on the Santa Clara Pueblo. Then there are issues like roads and water and sewer lines that assume right of way across tribal land without payment, even though they don’t serve the Pueblo whose land they cross.
Richard’s perspective is that the circumstances of the Pueblos have improved in many ways, especially in the case of the Santa Ana Pueblo, which he has worked with often. It has succeeded like no other in protecting its land, acquiring more, and mastering legal and social complexities in order to thrive in modern times while preserving its beliefs and traditions.
As for economic well-being, there are minerals on some tribal lands, and their casinos have been a great asset, providing jobs and revenue that can be invested in college educations. Tribes are also authorized to sell cigarettes with only a tribal tax and liquor licenses at a reduced price, which encourages the development of tourist sites. Finally, the Legislature has authorized them to keep 75% of the gross receipts taxes they collect.
The reading of Four Square Leagues makes one sad about how the Pueblo Indians have been treated ever since the arrival of the Spanish conquistadors. However, it is also true that there has been a collective awakening in New Mexico to the merits of their sense of community, their closeness to the land, and the beauty of their art. There is no way to change history, but Four Square Leagues will certainly inspire readers to improve on it in the future.