Pueblo of Santa Rosa v. Lane

46 App. D.C. 411 | D.C. Cir. | 1917

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The history and character of the Papago Indians may be gathered from a reference to certain public documents. In 1865, ihe first superintendent of Indians for Arizona states that “the early Spanish explorer found the Papagos here in 1540, and ruined houses of grand proportions attest their occupancy for ihousauds of years before the Spaniards came.” Ex. Doc. 2d Sess. 38th Cong. vol. 5, Rep. Sec. of Int. p. 296.

In 1856 the Indian commissioner, in a report to Congress, said: “The Pueblo Indians maintain their character as peaceable, industrious communities. Some of them have lost the title papers for the grants of land obtained by them from Spain and Mexico. In such cases their agent has taken testimony in their behalf. They deserve the fostering care of the government, and Congress will no doubt confirm their titles. About five thousand Indians are embraced within the Gadsden Purchase. They are mostly Pueblos, and reside in six different villages. They have houses and flocks, and raise wheat and other products of the soil.” Rep. Sec. of Int. Son. Doc. 3d Secs. 34th Cong. vol. 2.

In the report of the Commissioner of Indian Affairs of 1856, at page 183, the following statement appears: “A large portion of this acquisition to our Indian population consists of Pueblos situated near Tucson. * * They reside in permanent villages, have comfortable houses built of adobes, have flocks and herds around them, and rely upon the cultivation of the soil for subsistence,—-raising wheat, corn, cotton, and other vegetables. They are divided into six pueblos or villages, but whether or not they hold their lands under grants from the former governments of their country, I am not informed; but presume they do, as they have been permanently settled for a great number of years.”

M. C. Davidson, Indian Agent, at page 131 of the Eeport on Indian Affairs for 1865, said: “Tbe status of the Papagos with respect to the soil ought to he determined in a way that no injustice will be done to them. The Mexican laws, based upon [lie laws of the Indians promulgated by the Kings of Spain, recognized the Indians as subjects or citizens, and in most eases confirmed to them wherever they resided in fixed communities the titles to the lands where they lived. The Spaniards never made treaties with the Indians, nor extinguished the titles to the land, nor did they in any way recognize them as independent nations. Those who now, by the transfer of the political sovereignty of the country, find themselves upon American soil, and surrounded by Americans, look for at least a measure of recognition of their rights equal to that which they enjoyed under the despotic government of Spain. In my opinion, we must regard them as American citizens, and under certain conditions entitled to all their privileges.” Rep. Sec. of Int. 1865, p. 299, Ex. Doc. 39th Cong. vol. 2.

It is conceded, as indeed it must be from a study of Spanish and Mexican history, that plaintiff pueblo has continuously occupied the valley of Santa Kosa from time immemorial. This logically brings us to a consideration of its legal status. We find that, under both Spanish and Mexican laws, extending from the Spanish invasion down to the cession to the United States, all Indian pueblos were accorded large legal and political privileges, with the power of having municipal self-governments and of choosing local officers with due relation to their responsibility to the public, and the power to hold property and to appear in court and sue and defend on their own behalf. Each pueblo held title to its land in common, and in general its political and legal status was that-of a juridical entity. Indeed, after the Mexican succession, they were elevated to citizenship and civil rights. Hall’s Mexican Laws, sec. 161.

The Laws of the Indies, which were begun by decree of Charles V. in 1543, and extended by subsequent decrees of the Spanish Kings, contain much in recognition of the right of Indian pueblos to their lands in Mexico. In bk. 4, title 12, Law 14 (1578), it is said: “Because we have wholly succeeded to the lordship of the Indies and because the public lands not granted away by the Kings, our predecessors, or by us, in oiir opinion belong to our patrimony and'Boyal Crown, it is suitable that all (bo laud which is held in possession without just and true ¡ides shall be restored to us, as it belongs to us, so that, reserving before everything that which to us or our viceroys, courts, or governors may appear necessary for plazas, commons, public lands, pastures, and territory of the inhabited villages and towns in view of their present condition as well as of the future and their possible expansion, and granting to the Indians that of which they may reasonably have need for working the land and making their crops and for their education, confirming them in that which they now have and giving to them in addi1 ion that which is necessary, all the rest of the lands may remain and be free and unencumbered, to be disposed of according to our will. "Wherefore we order and direct the viceroys and presidents of the pretorial courts that when it appears proper to them, they shall announce a suitable limit of time, in order that those in possession may exhibit before them and the officers of their courts which may name the titles of the lands, plantations, farms, stock farms, protecting those who are in possession with good title and guaranties or with just prescription, and they shall return and restore to us the remaining land to he disposed of according to our will.”

.Further quotation from the same laws confirms the Indians in respect to their titles. “We order that the sale, cultivation, and adjustment of lands shall he made with such precautions that to the Indians shall be left the lands which may belong to them, not only as individuals, hut also as communities.” Bk. 4, title 12, Law 18 (1642). “No one shall he allowed to enter into a composition of lands unless he has possessed them for ¡en years, even though he may allege that he has so possessed them, because this pretext alone must not he sufficient, and the communities of Indians shall be admitted to composition in preference to the other particular persons, granting to them every convenience.” Ilk. 4, title 12, I.aw 19 (1646). “It is just that the Indians shall have time to work their properties and those of the community, and that the viceroys and governors shall proclaim that which may he necessary, to the end that they can come to their farms.” Lk. 4, title 1, Law 23 (1609).

By the Laws of the Indies, comprehensive provision was made, not only confirming title to lands held by the Indians individually and in common, but establishing regulations for their better government, and especially for the protection of their property rights, with ample provision for access to the courts.

By a Boyal Decree of October 15, 1751, respecting public lands, which forms the basis of many Mexican titles, the following instructions were promulgated: “The judges and officers in whom is delegated the jurisdiction over the same and composition of Crown lands shall act with lenity; forbearance, and moderation, with verbal, and not judicial, process, in questions of lands possessed by Indians, and of other lands which they (Indians) may need, especially for their work, cultivation, and stock raising; since in regard to lands of communities and those granted to their pueblos for pastures and common lands, nothing new must be done, maintaining them in possession thereof and restoring to them those that have been taken from them and giving them more land as the exigencies of the population require, and using no rigor in regard to those held by the Spaniards and people of other castes, keeping in mind the provisions of Laws 11,15,17,18, and 19, title 12, bk. 1, of the Compilation of the Indies.” The decree also provided that, in the absence of title papers, “it shall be sufficient to prove ancient possession as a title by just prescription.” 1 Legislación Mexicana, Mexico, 1876, pp. 13, 11.

The failure to aver the present existence of title in plaintiff pueblo by deed or other writing is not controlling, since its inhabitants have occupied and used the lands in question from time immemorial, and their title had been expressly recognized and confirmed by the Spanish and Mexican governments. Deferring to the character and validity of the title of the Indian pueblos within the territory ceded by Mexico, the court, in United States v. Pico, 5 Wall. 536, 510, 18 L. ed. 695, 696, said: “The existence of the pueblo and the assignment to it of the land in question by the officers of the Mexican government are frilly established by the documentary evidence in the case. The objection of the appellants is founded upon the absence of any transfer of the title to the pueblo by deed or other writing. But such transfer was not essential, nor was it usual. A pueblo once formed and officially recognized became entitled, under the laws of Mexico, to the use of certain lands, for its benefit and the benefit of its inhabitants, and the lands were, upon petition, set apart and assigned to it by the government. No other evidence of title than such assignment was required, nor was any other given.”

That the inhabitants of the pueblo of Santa Eosa were citizens of Mexico at the time of the cession to the United States seems to be indisputably established. The question of the status of Indian citizenship in Mexico prior to the cession is exhaustively reviewed in the case of United States v. Ritchie, 17 How. 525, 15 L. ed. 236. The court, speaking of the power of Indians under the government of Mexico to take and hold property, said: “lii answer to the first objection, we are referred to the plan of Iguala, adopted by the revolutionary government of Mexico, 24th February, 1821, a short time previous to the subversion of the Spanish power in that country, in which it is declared that 'all the inhabitants of New Spain, without di si motion, whether Europeans, Africans, or Indians, are citizens of this monarchy, with a right to be employed in any post according to their merit and virtues” and that, The person and property of every citizen will be respected and protected by the government.’ * * * The Indian race having participated largely in the struggle resulting in the overthrow of the Spanish power, and in the erection of an independent government, it was natural that, in laying the foundations of the new government, the previous political and social distinctions in favor of the European or Spanish blood should be abolished, and equality of rights and privileges established. Hence the article to this effect in the plan of Iguala, and the decree of the first congress declaring the equality of civil rights, whatever may be their race or country. These solemn declarations of the political power of the government had the effect, necessarily, to invest the Indians with the privileges of citizenship as effectually as had the Declaration of Independence of the United States, of 1116, to invest all those persons with these privileges residing in the country at the time, and who adhered to the interests of the colonies. Inglis v. Sailor's Snug Harbour, 3 Pet. 99, 121, 7 L. ed. 617, 625. * * * But as a race, we think it impossible to deny, that, under the Constitution and laws of the country, no distinction was made as to the rights of citizenship, and the privileges belonging to it, between this and the European or Spanish blood. Equality between them, as we have seen, has been repeatedly affirmed in the most solemn acts of the government.”

Concluding, as we must, that the inhabitants of the pueblo of Santa Rosa were citizens of Mexico and possessed of a valid communal title in the lands embraced therein, we come to a consideration of the effect, if any, the transfer of sovereignty to the United States had ujmn those rights. By article 9 of the Treaty of Guadalupe Hidalgo, it was provided that “the Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, * * * shall be incorporated into the Union of the United States and be admitted, at the proper time (to be judged of by the Congress of the United States), to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.” [9 Stat. at L. 930.]

The Gadsden Treaty, under which the pueblo of Santa Rosa and its inhabitants passed from the sovereignty of Mexico to the United States, provides: “Art. 5. All the provisions of the eighth and ninth, sixteenth and seventeenth articles of the Treaty of Guadalupe Hidalgo, shall apply to the territory ceded by the Mexican Republic in the first article of the present treaty, and to all the rights of persons and property, both civil and ecclesiastical, within the same, as fully and as effectually as if the said articles were'herein again recited and set forth.” [10 Stat. at L. 1035.]

It may be suggested that the foregoing treaty provisions are merely declaratory of the general principles of international law, preserving, in case of change of sovereignty by cession, all the personal and property rights of the inhabitants of the ceded territory. Whatever rights wore secured to plaintiff by Mexico prior to cession passed and are granted protection by the new sovereignty. Title respected by treaty obligations is peculiarly sacred. It rests not only on the pledge of protection by the new sovereignty, but upon a solemn guaranty to the old sovereignty that existing personal and property rights shall remain undisturbed. “'The rights of private property, so far from having been impaired by the change of sovereignty and jurisdiction, were fully secured by the law of nations, as well as by treaty stipulation.” Newhall v. Sanger, 92 U. S. 761, 763, 23 L. ed. 769, 770.

It will be observed that the Treaty of Guadalupe Hidalgo protected all persons, colorations, and communities in their rights of property. This included pueblos which, by law and custom, had become vested with interests in lands under the former government. It expressly provided for the protection of the rights of the inhabitants of the ceded territory in their persons and property, and there is nothing from which the inference can he adduced that any distinction was intended with reference to property claimed by towns under the Mexican government. “By the laws of Mexico, in force at the date of the acquisition of the country, pueblos or towns were entitled, for their benefit and the benefit of their inhabitants, to the use of lands constituting the site of such pueblos and towns, and of adjoining lands, within certain prescribed limits. This right appears to have been common to the cities and towns of Spain from an early period in her liistory, and was recognized in the laws and ordinances for the settlement and government of her colonies on this continent. These laws and ordinances provided for the assignment to the pueblos or towns, when once established and officially recognized, for their use and the use of their inhabitants, of I square leagues of land. It may be difficult to state with precision the exact nature of the right or title which the pueblos held in these lands. It was not an indefeasible estate; ownership of the lands in the pueblos could not in strictness be affirmed. It amounted in truth to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other public purposes. This right of disposition and use was, in all particulars, subject to the control of the government of the country.” Townsend v. Greeley, 5 Wall. 326, 336, 18 L. ed. 547, 549.

It logically follows that there existed, and still exists, in these pueblos a communal right of property which, at most, could only be. controlled by specific act of the government itself. It is inconceivable, however, that this controlling power of the government should extend beyond the exercise of the functions of guardianship, for their title to the lands antedates the sovereignty of the United States, and is expressly protected and confirmed by treaty. By no rule of sovereign prerogative existing in our form of constitutional government could these people be devested of their lands without due compensation. Congress has never legislated in respect of the property rights of plaintiff pueblo. Until it does, its administrative officers are without authority to interfere in any respect with those rights. It will not do to say that authority exists under the general legislation of Congress with respect to the Indians and the Indian country. It has never been the policy to so treat the Indian pueblos which came to us with the cession from Mexico. The title to most of them has been confirmed by Congress under a policy entirely foroigq to that adopted in dealing with the savage, nomadic Indian tribes. The laws of Spain, and later of Mexico, made no distinction between the Papago Indian pueblos and those within the present limits of the State of New Mexico which have been confirmed in their rights, which were recognized by this government to have been acquired long prior to the transfer of sovereignty from Mexico to the United States.

It follows that by the obligations of the treaty of cession, we stipulated not only to protect these former citizens of Mexico in their persons and property, but to accord to them the same treatment with respect thereto as had been accorded them under the former sovereignty. To deprive them now of their lands would be to deprive them of property rights of which they have been vested from time immemorial, and which were recognized as such both by Spain and Mexico, and so recognized by this government in respect of numerous other Indian pueblos similarly situated.

It is no argument that because recently Congress has made certain provisions looking to the exercise of limited guardianship over these people that the administrative officers of the government may, upon the theory that they are w'ards of the government, treat their lands as public domain and open them to settlement. There is nothing inconsistent with the theory that an Indian, though a ward of the government, may possess title to lands. The acts of guardianship in fhis instance place no power in the administrative officers of the government to interfere in any manner with the property of the ward, further than to manage and control it for the benefit of the ward. “As before indicated, by a uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the government have regarded and treated the pueblos of New Mexico as dependent communities, entitled to its aid and protection, like other Indian tribes; and, considering their Indian lineage, isolated and communal life, primitive customs, and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary, but must be regarded as both authorized and controlling.” United States v. Sandoval, 231 U. S. 28, 47, 58 L. ed. 107, 114, 34 Sup. Ct. Rep. 1.

Even assuming that general acts of Congress relating to the guardianship of the Indians might apply to plaintiff pueblo, it would still hardly be contended that power exists in the officers of ijie government to arbitrarily devest them of their lands. Even the savage, nomadic tribes of American Indians, with whom the ancient Mexican Pueblo Indians seem to have little or no racial connection, have been held to possess such a title or interest in their lands as could only be devested by treaty or act of Congress, and then only upon due compensation. No treaty or act of Congress exists, or ever has existed, touching the status of these Indians in respect of their title to the lands possessed, used, and occupied by them from time immemorial.

While in the Sandoval Case, the court distinguished the decision in United States v. Joseph, 94 U. S. 614, 24 L. ed. 295, we assume it related only to the question under consideration, of the power of Congress to prohibit the introduction of intoxicating liquor into an Indian pueblo, holding it to be Indian country. This, we conceive, detracts nothing from the authority of the Joseph decision as fixing the distinction between 'the titles to lands held by Pueblo Indians and those occupied by the nomadic tribes. On this point Mr. Justice Miller, speaking for the court, said: "Turning our attention to the tenure by which these communities [pueblo Indians] hold the land on which the settlement of defendant was made, we find that it is wholly different from that of the Indian tribes to whom the act of Congress applies. The United States have not recognized in these latter any other than a passing title with right of use, until by treaty or otherwise that right is extinguished. And the ultimate title has been always held to be in the United States, with no right in the Indians to transfer it, or even their possession, without consent of the government. It is this fixed claim of dominion which lies at the foundation of the act forbidding the white man to make settlement on the lands occupied by an Indian tribe. The Pueblo Indians, on the contrary, hold their lands by a right superior to that of the United States. Their title dates back to grants made by the government of Spain before the Mexican Revolution,—a title which was fully recognized by the Mexican government, and protected by it in the Treaty of Guadalupe Hidalgo, by which this country and the allegiance of its inhabitants were transferred to the United States.”

But it is urged that plaintiff pueblo is not a corporation, and, therefore, not entitled to maintain this action. Passing over much interesting history tending to establish its corporate entity by immemorial prescription, we think it is a corporation under the laws of the state of Arizona. When General Ivearney was military governor of New Mexico, a statute entitled, “An Act to Enable Pueblo Indians to Pring and Defend Actions,” was passed, in which it was provided “that the inhabitants within the Territory of New Mexico, known by the name of the Pueblo Indians, and living in towns or villages built on lands granted to sucli Indians by the laws of Spain or Mexico, and conceding to such inhabitants certain lands and privileges, to be used for the common benefit, are severally hereby created and constituted bodies politic and corporate, and sba.ll be known in law by the name of the ‘Pueblo de ---;’ (naming it), and by that name they and their successors shall have perpetual succession; sue and be sued, plead and be impleaded, bring and defend in any court of law or equity, all such actions, pleas, and matters whatsoever, proper to recover, protect, reclaim, demand, or assert the right of such inhabitants, or any individual thereof, to any lands, tenements, or hereditaments, possessed, occupied, or claimed contrary to law by any person whatsoever, and to bring and defend all such actions, and to resist any encroachment, claim, or trespass made upon such lands, tenements, or hereditaments, belonging to said inhabitants, or to any individual.” Laws of New Mexico, 1851-1852.

In 1850, New Mexico was created a Territory (9 Stat. at L. 448, chap. 49) by which general legislative authority was vested in the territorial legislature. The first legislature enacted “that all laws that have previously been in force in this Territory that are not repugnant to, or inconsistent with, the Constitution of the United States, the organic law of the Territory, or any act passed at the present session of the legislative assembly, shall be and continue in force, except in Kearney’s Code the law concerning registers of land.” Laws of New Mexico of 1852.

This brought the Kearney Act forward into the laws of N ew Mexico. The Papago Indian lands here in question were included in the Gadsden Purchase of 1854, and Congress, by Act of August 4, 1854 (10 Stat. at L. 575, chap. 245), enacted “that, until otherwise provided by law, the territory acquired under the lale treaty with Mexico, commonly known as the Gadsden Treaty, be, and the same is hereby, incorporated within the Territory of ‘New Mexico,’ subject to all the laws of said last-named territory.”

By the Act of Congress of February 24, 1863 (12 Stat. at L. 664, chap. 56), the Territory of Arizona was created out of territory formerly embraced within New Mexico. The act continued in force the act creating the Territory of New Mexico, “together with all legislative enactments of the Territory of New Mexico not inconsistent with the provisions of-this act,” which “are hereby extended to and continued in force in the said Territory of Arizona, until repealed or amended by future legislation.” We have been unable to find anything in the Constitution or laws of Arizona repealing or in any manner affecting the corporate status of Indian pueblos as fixed by the Kearney statute. The validity of the Kearney Act was upheld in Leitensdorfer v. Webb, 20 How. 176, 15 L. ed. 891.

Nor is this a suit against the United States to control the discretionary functions of its officials. This is not public domain of the United States, in that it comes within the general acts of Congress imposing upon the Secretary of the Interior general supervisory control over the public lands. It is an Indian pueblo of the class of the New Mexican pueblos in which the government has recognized and confirmed title existing at the date of cession and protected by the treaty. Indeed, the only act of Congress that has been called to our attention affecting directly the title of Papago lands was in effect a recognition of their title. The Act of 1882 (22 Stat. at L. 299, chap. 394) granted a right of way to the Arizona Southern Railroad Company across the Papago Reseiwation, but specifically provided “that the consent 'of the Indians occupying said reservation be first obtained, and such compensation as may be fixed by the Secretary of the Interior be paid to him by the said railroad company, to he expended by him for the benefit of the said Indians.” The act is significant of guardianship, but negatives any disposition on the part of the government to assert ownership. No question of the boundary is here involved, since the boundaries set forth in the bill are concededly correct under the admissions of the motion to dismiss. Hence, defendant officers are acting totally without their jurisdiction. In such cases the courts will not hesitate to interfere. Gauthier v. Morrison, 232 U. S. 452, 58 L. ed. 680, 34 Sup. Ct. Rep. 384; Lane v. Wade, 234 U. S. 525, 58 L. ed. 1440, 34 Sup. Ct. Rep. 965.

We come now to the claim of counsel for the government, that plaintiff is barred by its failure to assert its title before the court of private land claims or before the Land Commission created by the Act of Congress of July 22, 1854 (10 Stat. at L. 308, chap. 103). The Act of 1854 was limited to Mexican land grants within the limits of California. It contained a provision for the absolute forfeiture to the United States of lands claimed if the grantee failed to present his claim to the Commission before a specified date. This forfeiture provision was held valid and enforceable. Botiller v. Dominguez, 130 U. S. 238, 32 L. ed. 926, 9 Sup. Ct. Rep. 525; Barker v. Harvey, 181 U. S. 481, 45 L. ed. 963, 21 Sup. Ct. Rep. 690. But this law has no present application, since the lands in question are not situated in California, and hence were not within the jurisdiction of the Commission.

The Act of March 3, 1891 (26 Stat. at L. 854, chap. 539), creating the court of private land claims, provided, among other things:

“Sec. 6. That it shall and may be lawful for any person or persons or corporation, or their legal representatives, claiming lands within the limits of the territory derived by the United States from the Kepublie of Mexico and now embraced within the Territories of New Mexico, Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming, by virtue of any such Spanish or Mexican grant, concussion, warrant, or survey as the United States arc bound to recognize and confirm by virtue of the treaties of cession of said country by Mexico to the United States which at the date of the passage of this act have not been confirmed by act of Congress, or otherwise finally decided upon by lawful authority, and which are not already complete and perfect, in every such case to present a petition, in writing, to the said court,” etc.

“Sec. 8. That any person or corporation claiming lands in any of the States or Territories mentioned in this act under a title derived from the Spanish or Mexican government that was complete and perfect at the date when the United States acquired sovereignty therein, shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for other cases for a confirmation of such title; and on such application said court shall proceed to hear, try, and determine the validity of the same and the right of the claimant thereto, its extent, location, and boundaries, in the same manner and with the same powers as in other cases in this act mentioned.”

It will be observed that it was left optional with persons claiming complete title to come into the court of private land claims. No penalty or forfeiture was imposed upon such claimant for failure to submit himself to the jurisdiction of the court. In Ainsa v. New Mexico & A. R. Co. 175 U. S. 76, 44 L. ed. 78, 20 Sup. Ct. Rep. 28, it was held that Mexican or Spanish grants complete at the time of cession were confirmed by the treaty itself, and needed no confirmation by Congress. The reason for making the presentation of completed claims optional was stated in Richardson v. Ainsa, 218 U. S. 289, 54 L. ed. 1044, 31 Sup. Ct. Rep. 23, as follows: “But the considerations mentioned in the case cited [Botiller v. Dominguez] did not prevent the United States in the Act of March 3, 1891, from leaving the holders of perfected titles free not to present them to the court, as they were required to do in earlier statutes. The good faith of the United States was pledged to respect- the Mexican titles. It recognized in the Act of 1891 that holders of such titles need not go into the land claims court to get them confirmed, and we should be slow to suppose that it meant to make a doubt in the Department of Justice as to the validity of a perfect title a ground for cutting down what otherwise it was bound to protect, and did, by the statute, leave intact.”

With this distinction before us,- it is clear that plaintiff lost nothing by failure to assert its title before (lie land claims court. Whatever title plaintiff has, it acquired long prior to the cession from Mexico. Its status was in no respect affected by the change of sovereignty. Nor, as we have observed, has it been changed by act of Congress. Its communal pueblo or village title was as little subject to impairment by change of sovereignty as that of a private individual Spanish or Mexican grantee. The court helow laid stress upon the principle that plaintiff, being a pueblo or village, a mere agency of the government, it lay within the sovereign power at any time to put an end to its political character or existence. Hut this is an assumption -without a premise. No such thing has been attempted; and, so long as the pueblo continues, its property rights remain subject to protection by the laws of the land, with a duty of enforcement resting upon the courts. Indeed, its peculiar origin, antedating every national sovereignty under which it has existed, may well distinguish it from the ordinary municipality with authority to exercise only those limited powers conferred by the express terms of a corporate charter, granted by the State. It is more in the nature of a corporation by immemorial prescription recognized by the State, but exercising governmental functions of its own, independent of any express statutory regulations prescribed by the State.

It is unnecessary, however, to consider the more difficult question of the extent of the power of Congress to control plaintiff’s title or abolish its corporate existence by legislative enactment, since it has not been attempted. The Land Department fell into error in placing the Papagos in the same classification with the original nomadic North American Indian tribes and attempting to apply to (lieir property the general law affecting Indian lands and property. We find plaintiff, at the time of the cession from Mexico, to he a pueblo of the same legal status as the New Mexican pueblos whose title was recognized and confirmed in fee simple by the Act of Congress of December 22, 1858 (11 Stat. at L. 374, chap. 5). It follows, therefore, that, whatever power Congress may have to control plaintiff’s land, no such power has been asserted, and this power cannot he assumed by .tbe Land Department to the extent of opening the land to settlement and disposing of mineral rights therein.

The decree is reversed with costs, and the cause is remanded ■with directions to enter a decree restraining defendants from offering for entry or listing for entry or sale as part of the public domain of the United States any of said lands under any land or mineral land law of the United States, and requiring, in so far as lies within their power or control, the correction of the records of the Land Department to prevent in as large degree as possible any further infringement upon the property rights of plaintiff.

Reversed and, remwnded.

An appeal to the Supreme Court of the United States was allowed May 12, 1917.