Acoma v. Laguna and the Transition from Spanish Colonial Law to American Civil Procedure in New Mexico

Less than two years after the United States occupied New Mexico, Acoma Pueblo accused its neighbors in Laguna Pueblo of misappropriating a painting of Saint Joseph. The Indians of Acoma claimed that they had loaned the picture to the pueblo of Laguna for the purpose of celebrating Holy Week, but Laguna had subsequently refused to return it. The large oil painting on canvas, which portrayed the standing figure of Joseph holding the baby Jesus, was said to have been sent to New Mexico by Carlos II, king of Spain from 1665 to 1700. Both pueblos claimed rightful ownership of the picture, both said that missionaries with the early Spanish conquerors had brought them the oil painting from Spain, and both asserted that the painting was necessary for their religious worship. It was believed that the painting of Saint Joseph, or San Jose, as he was referred to throughout the legal documents, worked miracles for its possessor. Most important to the pueblos was the belief that the painting brought life-sustaining rain to the parched agricultural lands that provided their main source of food.

     To resolve the dispute, the pueblos turned to the nearest ecclesiastical authority, the local priest. Fray Marino de Jesus Lopez called together the people of Acoma and Laguna to draw lots for the painting, proclaiming that in this way God would decide the conflict. After holding mass for all the families of both pueblos, the priest placed eleven blank tickets and one ticket with a picture of the saint on it in a vessel in the church at Acoma and had two little girls draw them out on behalf of the pueblos. The first four tickets drawn were blank, but the fifth, drawn by the girl from Acoma, was the one with the picture on it. The priest declared that God had thus decided that the painting belonged to Acoma, and he awarded ownership to that pueblo. Later in the day, however, armed members of Laguna Pueblo came to the church at Acoma and forcibly took the painting back. In reaction, Acoma Pueblo sued Laguna Pueblo in the closest court, the U.S. District Court for the Third District, in the county of Valencia. The court accepted jurisdiction over the matter and, after hearing evidence presented on both sides, decided in favor of Acoma Pueblo. Laguna appealed to the New Mexico Supreme Court, which affirmed the lower court's decision.

     This story raises a number of questions. Why did the Pueblo Indians turn to civil litigation to resolve their dispute, and what did they gain from doing so? Why did the U.S. courts accept jurisdiction of the case, and what did they achieve by doing so? What do the social characteristics of participants in the trial tell us about the impact of the case? What does the language of the testimony, the court documents, and the judicial decisions tell us about the mentality of the parties to the suit and about the meaning of the case?

     This article explains the significance of Acoma v. Laguna as follows: it asserted the power of American courts while making alternative dispute resolution by local justices of the peace and priests less attractive; it demonstrated the effectiveness of rational, orderly legal procedures; and, Finally, it incorporated the voices of Native peoples into the courtroom process, respected and reinforced their leadership, and acknowledged their culture. The case is an important example of how the United States established control in early territorial New Mexico by making cultural accommodations to facilitate its imposition of legal and political authority.

I. Pueblo Indians and Civil Authority

The Pueblo Indians had lived in villages along the Rio Grande and its tributaries for centuries before the arrival of the Spanish. By the sixteenth century, the Pueblo Indian population was approximately 80,000. In addition to these settled Indians, there were tens of thousands of Utahs, Apaches, Navajoes, and other nomadic Indians roaming the territory. The Spanish arrived in the Rio Grande area around 1540 and conquered the Pueblos by the end of the century. Except for a thirteen-year period at the end of the seventeenth century, when they were ousted from New Mexico1 as a result of the Pueblo Revolt of 1680, the Spanish controlled the area until Mexico declared independence in 1821. For twenty-Five years, New Mexico was a part of the Republic of Mexico. In 1846, the American Stephen Kearney and his troops occupied New Mexico, and two years later the Treaty of Guadalupe Hidalgo made the area a part of the United States. In 1850, Congress passed the Organic Law to create the Territory of New Mexico, encompassing an area that is today the states of New Mexico, Arizona, and part of Colorado. At that time, the non-Indian population of the Territory was about 60,000 (of whom about 550 were English-speaking Americans), and there were 7,000 to 10,000 Pueblo Indians living in twenty villages. Federally appointed officials governed the Territory until it was admitted as a state in 1912.2

     As described by section 10 of the Organic Law, the new court system of the 1850s consisted of three district courts and a supreme court to which cases could be appealed. In the mid-1850s, the district court still lacked an official seal requiring court officials to use their own private seals to formalize their writs and the American judges knew little about life in New Mexico. But the court did meet once or twice a year in each county as scheduled by law, and there were a number of American lawyers in Santa Fe at the time.

     Even though American legal procedures were still unfamiliar to Pueblo Indians, few of them understood English, and witnesses from the pueblos had to travel about seventy-Five miles to the courthouse in Tome, the pueblo of Acoma chose to seek resolution of the dispute over the painting in the U.S. District Court for the Third District of New Mexico. Although traditional Pueblo means of resolving conflicts were quite different from formal litigation processes, and the American system was new to the Indians, they had had centuries of experience with another European court system and were used to framing their grievances to fit European laws and following European procedures to resolve disputes.

Traditional Dispute Resolution in the Pueblos

In the pueblos, community consensus and conformity was valued over individual rights and actions. Pueblo society was a theocracy in which the cacique and other religious leaders made political, legal, and religious decisions. The cacique was the highest religious and political officer in the pueblo; he was both a quasi-divine high priest who organized communal religious rituals and a lawgiver who served as the political head of the pueblo. Beginning in the seventeenth century, after the Spanish superimposed on the pueblos a governmental structure closer to their form of municipal government, the pueblo's governor took part in informally resolving minor judicial matters. Since there was no interpueblo political structure, disputes with other pueblos were often resolved forcibly, with arms, but disputes between individuals within a pueblo were usually worked out between the parties concerned or resolved with the assistance of the pueblo leadership.3

History of Pueblos and Civil Authority under Spanish and Mexican Rule

Acoma Pueblo's first encounter with Spanish judicial process could hardly have engendered trust in European forms of justice. When Juan de Onate attacked Acoma in the winter of 1598-1599, and the Acoma people resisted, a battle between the Europeans and the Pueblo Indians ensued. When the Spanish won, they took six hundred captives, charged them with criminal offenses, put them on trial, and convicted them of murder. As punishment, Onate ordered all Acoma males over the age of twenty-Five to have one foot cut off and sentenced all members of the pueblo over the age of twelve to twenty years of personal servitude.4 Despite this unpromising precedent, the Pueblo Indians, like other New Mexicans, frequently resorted to civil authority to resolve problems and disputes. They were often assisted in their petitions and lawsuits by the "Protector of the Indians," an official whose job it was to "aid and defend" the Indians in New Spain.5

     During the Spanish colonial period, New Mexicans took minor cases to their local magistrate, known as the alcalde. Theoretically, there was one alcalde (either the district's alcalde mayor or one of his assistants, a teniente alcalde) in each town or pueblo, so everyone would have easy access to justice. In practice, however, there were often vacancies in some of the partidos. Anyone who was dissatisfied with the alcalde's resolution of a dispute could appeal the case to the governor of New Mexico. Most cases of any kind involving Indians, as well as important cases involving other litigants, went directly to the governor. A special court known as the fuero eclesiástico had jurisdiction over matters relating to the Church. After Mexico declared independence, New Mexico became a territory (and later a department) of the new republic. Although in 1826 a circuit court was established to cover the states of Durango and Chihuahua and the territory of New Mexico, no one held the post of district judge in Santa Fe for five years because there was no trained lawyer in the territory until Antonio Barreiro arrived in 1831. In practice alcaldes resolved most legal disputes.6

     As historian Charles Cutter points out, the Pueblo Indians were not passive participants in this legal system; they were familiar with Spanish and Mexican legislation, decrees, and procedures, and they initiated litigation to advance their interests. Selective use of the institutions basic to Spanish society, especially law and the legal system, helped the pueblos preserve their own societies, communities, and cultures from attacks by the Spanish. Foreign rights-based arguments were used to protect traditional communal interests and customs.7

     The Indians' complaints to the governor most often involved encroachments on their land by Spanish neighbors. Examples of collective grievances taken to the governor include Taos Pueblo's complaint against Spanish settlers for damages to their crops by livestock in 1731, San Ildefonso Pueblo's lawsuit against the heirs of Juana Lujan for certain lands in 1766, Laguna Pueblo's claim in 1815 that Joaquin Pino was occupying land that had been reserved for the pueblo, and Taos Pueblo's 1815 petition to obtain lands granted them by the king.8 The Indians also turned to civil authorities to resolve private grievances, land disputes between pueblos, and, occasionally, even their own internal political conflicts. Finally, the governor often had to handle pueblo complaints about local abuses of power by Catholic missionaries and civil officers of government.9

     The pueblos fell under Mexican jurisdiction after Mexico declared independence in 1821. In the Republic of Mexico, as in New Spain, the Pueblo Indians often brought their disputes to their local alcaldes for resolution, but they also brought petitions to the provincial deputation and to the governor. The disputes were similar to those brought during the Spanish colonial period: complaints about land encroachment and damage, improper actions by Mexican officials, and abuses by priests.10 Because Mexico had weaker laws guaranteeing Indians' rights and because the increasing population created greater demand for Indians' lands, encroachment on pueblo property became a more serious problem in the republic. Furthermore, the Mexican governors tended to ignore maltreatment of Indians by alcaldes, there was no Protector, and there were few priests left in the pueblos. Thus, the Indians in Mexico were more vulnerable to alcalde abuses than they had been in New Spain.11

Pueblo Grievances and U.S. Civil Authority

After New Mexico formally came under United States jurisdiction in 1848, the Pueblo Indians continued to direct most of their complaints to the governor. Governor William Carr Lane (1852-1853) commented that his job consisted of "one eternal round of appeals, written & verbal, from Mexicans & Indians, & sometimes from Americans, for reparations, of every description of wrongs." The Pueblo Indians themselves, he noted, were "almost daily visitors to the Superintendency with their complaints and appeals." Governor David Meriwether(1853-1857) observed that "[w]hen disputes arise between two Pueblos or between them and their more civilised neighbours the matter is invariably laid before the Territorial Governor and his decision is invariably regarded as final."12

     As in New Spain and Mexico, land encroachment was the source of most of the Indians' complaints. In 1849, as New Mexico's first Indian agent, James S. Calhoun commented to Commissioner of Indian Affairs William Medill in Washington, D.C., that the Pueblo Indians "complain of many encroachments upon their boundaries, and hope the U.S. government will restore them their ancient rights." In fact, he noted, "[s]carcely a day passes that complaints are not brought before me of Mexican aggressions" against the Pueblo Indians. Calhoun repeated the concern about encroachments on pueblo lands to Medill's successor, Orlando Brown. A few years later, when he was the first civil governor of New Mexico (1851-1852), Calhoun reported to the new commissioner, Luke Lea, that "[t]here is not a Pueblo within One hundred miles of this Superintendency that has not sent to me delegations, during the month, to make known their grievances caused by incroachments upon their landed property around their Pueblos."13

     The governors sometimes declined to intervene in disputes between pueblos or between a pueblo and Spanish-Mexican14 neighbors. For example, when "Carlos" from Tesuque Pueblo came to see Governor Lane "about an ox which he said he had lost some two years ago and [which] was now in the possession of a Cochiti Indian," Lane advised him "that all such matters must be settled by the authorities of the Pueblos." And when a San Felipe Indian complained against a Spanish-Mexican who had taken one of his peons away from him, secretary and interpreter John Ward noted, "The Gov. told him that all such matters must be settled by the Gov. of the Pueblo." On occasion Acting Superintendent of Indian Affairs John Greiner similarly ordered pueblos to decide issues themselves. For example, on May 10, 1852, when a San Juan Indian came to complain that a Spanish-Mexican claimed some of his land, Greiner referred him to the governor of the pueblo "in order that he should settle the matter according to their custom." On another matter, he noted in his journal that "[t]he case of the young man living with another woman besides his wife in pueblo it was left with the authorities of the pueblo to settle themselves."15

     More often, however, the governors and superintendents of Indian affairs actively sought to resolve the disputes that Pueblo Indians brought to them. Typically they would dispatch an agent to investigate a problem and work out a settlement, or they would send a letter to the nearest justice of the peace16 ordering the local official to ensure that the pueblo's lands be respected or property be returned. For example, in 1853 an Indian from the pueblo of San Juan brought to Governor Lane a dispute with a Spanish-Mexican over ownership of a piece of land. Lane told the Indian that either an agent or Lane himself would go to the pueblo to settle the matter as soon as possible. Two weeks later, the agent returned from San Juan Pueblo to Santa Fe and reported that he had settled the land question between the Indian and the Spanish-Mexican "to the satisfaction of both parties."17

     New Mexicans continued the Spanish colonial practice of turning to the governor to resolve disputes, and the early governors of New Mexico often accepted that role, however reluctantly. But many Americans felt uncomfortable with this form of informal, personal justice and believed that legal disputes belonged in the courtroom. Shifting dispute resolution from the head executive to the judicial branch was seen as an essential element in the Americanization of New Mexico. Consequently, the court system would play a crucial role in the early years of the Territory.

II. Role of the United States Legal System in Territorial New Mexico

Establishing the legal system was integral to the larger goal of bringing the people of New Mexico into the political and economic domain of the United States.18 Well-functioning, authoritative courts were an essential element of American authority and control in New Mexico. Furthermore, courts helped educate New Mexicans about American government and provided the foundation for core American values.

American Views of the Mexican Legal System

On their arrival in the Southwest, many Americans regarded the colonial Spanish political system and legal tradition with disdain, viewing it as unenlightened, arbitrary, unpredictable, and irrational. These attitudes were expressed explicitly in New Mexico, as they were at the same time also being articulated in California, Missouri, and elsewhere in territories acquired from Mexico, France, and Spain.19

     Acting Governor William Watts Hart Davis (1856-1857) wrote that in the Mexican Republic the administration of justice was "rude and uncertain." Since "courts of justice were almost unknown," most legal disputes went to the governors or to the alcaldes, "none of whom were ever accused of knowing any thing about law," he noted caustically. It was disconcerting to Americans that, rather than following formal legal procedures and applying fixed principles of law, the alcaldes decided cases on a variable, discretionary basis. "The decision of the alcalde was seldom made up according to the merits of the case," Davis observed, "and much too frequently the judgment was purchased with money." Similarly, American trader Josiah Gregg claimed that bribery and corruption pervaded the judicial system of northern Mexico while he was there in the 1830s. "In judicial proceedings," he wrote, "but little, or rather no attention is paid to any code of laws; in fact there is scarcely one alcalde in a dozen who knows what a law is, or who ever saw a lawbook."20

     Many of the same men who had been alcaldes in the Mexican Republic continued to hold office during the period of military occupation and in the early years of territorial government. Consequently, complaints about the integrity and competence of local judicial officials, which had begun at the end of the Mexican period, persisted. For example, in the fall of 1854 a letter published in the Santa Fe Weekly Gazette observed that local magistrates extorted high fees from litigants and that they "are either entirely ignorant of our laws, or maliciously distort and disregard them." Governor Calhoun made similar observations about "Mexican alcaldes" to the commissioner of Indian affairs, alleging that they brought baseless lawsuits against Indians and rendered judgments against them regardless of the evidence. Generally, he wrote, they "do not . . . use their authority, whatever it may be, without abusing it."21

     The Santa Fe Weekly Gazette broadened the argument further to criticize the entire Spanish-Mexican political and legal system and to boast about the merits of American government. An 1854 editorial pointed out to the people of New Mexico that before the Treaty of Guadalupe Hidalgo they had been "treated like slaves." The Mexican government deprived the people of all of the basic political and civil rights. "[Y]ou had no trial by jury; no right of suffrage, no habeas corpus," the editorial pointed out, and "[t]he only law acknowledged was the will and caprice of the Governor." Neither property nor persons were secure, the editorial maintained, because "[a]t the command of the Governor, any peaceable inhabitant could be thrown into prison, and afterwards executed, without judge or jury, because courts of justice were unknown, and those who had the boldness to protest against such proceedings, were very likely to meet the same fate."

     Now that New Mexico was part of the United States, the editorial concluded, the people of the Territory were free and secure and enjoyed the right to vote, trial by jury, habeas corpus, and freedom of religion. "The great distinctive feature between the past and present position of affairs of New Mexico," the editorial explained, "is probably, that now every department is conducted according to law." Every public official was now responsible and accountable for what he did. Furthermore, courts of law, with impartial and honest judges, were now available for redressing wrongs. Those courts were open to everyone, and no one was above the law. Therefore, the editorialist assured the readers, "[y]our life and liberty are now both safe, because you can be deprived of neither without a fair trial by a jury of your neighbors and friends."22

     Of course, the negative statements about the Spanish-Mexican legal system by Acting Governor Davis, the merchant Josiah Gregg, the letter writer, Governor Calhoun, and the editors of theSanta Fe Weekly Gazette were not necessarily the objective truth, but they serve as examples of American opinions about the comparative virtues of their political and legal system over that of Mexico. Claiming to bring the "rule of law" to conquered peoples has been a very common way of legitimizing and justifying conquest in the modern era.23 Furthermore, Americans were not alone in arguing that commercial growth and capitalism depended on a rational and predictable legal system. For Britain, France, and other colonizing powers trying to make their colonies profitable by bringing agricultural people into the commercial world, arguments about the importance of the rule of law had not only an ideological imperative but also a practical purpose. As David Groff has pointed out in his study of French West Africa in the late nineteenth and early twentieth centuries, "some form of rule of law was . . . needed in order to facilitate colonial commerce and promote the establishment of capitalist productive relations."24

     The negative observations by Americans in New Mexico were not just propaganda, however; they reflected a genuine belief that the American political and legal systems protected liberty to an extent impossible under the Spanish colonial system. The Americans particularly prided themselves on the rule of law, especially government officials' accountability under the law, the requirement that disputes be resolved by a formal and systematic legal procedure, and, perhaps most important, the protections afforded by jury trials. Exposure to a system based on the rule of law, Americans believed, would uplift and Americanize the people of New Mexico. As Acting Governor Davis put it, "our free institutions make men better, wiser, and happier," and through their agency, Americans could achieve "the regeneration of the people of New Mexico, morally, socially, and religiously."25

     To a large extent, American perceptions of the legal system of Mexico were the result of differences between Spanish-Mexican and Anglo-American legal culture and the Americans' lack of familiarity with the Spanish colonial system. Americans believed that their own legal system more effectively reinforced rationality, certainty, consistency, and predictability in the law; they were sure that no court system without jury trials could adequately protect liberty and ensure security; and they viewed the broad discretionary powers of the alcaldes as necessarily corrupt. Furthermore, the Americans were unwilling to take seriously the role of Spanish and Mexican custom in determining property ownership or in making other legal decisions, nor did they recognize the special rules regarding communal lands. Because of the importance of predictability they preferred to be ruled by formal law rather than by local custom, and they viewed the Spanish-Mexican notion of communal property as inconsistent with the revered principle of individualism.26 In short, the Americans believed that the U.S. and Spanish-Mexican legal systems represented divergent sets of values. To the Americans, making New Mexico a part of the United States meant reshaping New Mexican society and economy to fit the American model of individualism and capitalism, and the most essential vehicle for such a change was a legal system based on values that were consistent with that model.

Efforts to Create an Effective Legal System

American government officials not only were concerned about abuses of power and unpredictable decision making by local Spanish-Mexican officials but also fought against vigilantism, which undermined law and order in the Territory. Only a fair and predictable court system could persuade people not to resort to private remedies for their grievances. In order to uphold the rule of law, the territorial government tried to end the practice of vigilante justice in frontier areas, where some New Mexicans who lacked confidence in the criminal justice system were willing to take justice into their own hands.27

     Concerns about the image of the court system as legitimate and predictable applied to civil cases as well as criminal matters. Governor James Calhoun deemed it particularly important that the Pueblo Indians regard the American legal system as fair. He explained the situation to the commissioner of Indian affairs as follows: to the extent that Pueblo Indians perceived that American "justice is just blind enough to favor the strong at the expense of the weak," and to the extent that the governor was unable to protect the Indians through just application of law, "their confidence in the justice and power of the Government of the United States is, in the same proportion, diminished."28

     The Americans needed to prove that they could maintain law and order and that their legal mechanisms resolved disputes fairly. They made an effort to strengthen and legitimize the legal system to reinforce the rule of law for Americans, Spanish-Mexicans, and Indians alike. Right from the beginning, the Americans who occupied New Mexico recognized that the credibility of law and the courts was necessary for establishing American authority. Therefore, they placed a high priority on establishing a court system that was both sophisticated and accessible.

     Stephen Kearney devoted much of his Code of Laws, proclaimed in Santa Fe in 1846, to describing the court system, judicial officers, legal procedures, the formation of juries, and civil remedies. Kearney's Bill of Rights of 1846 declared that "courts of justice shall be open to every person, just remedy given for every injury to person or property." He further proclaimed that the right of jury trial would remain inviolable. Section 11 of the Bill of Rights enacted by the legislative assembly in 1851 provided that "All courts shall be open and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law."29

     Acting Governor Davis observed that New Mexicans appreciated how American courts provided greater security and protection of person and property than had the legal system of Mexico. In particular, he observed that the people of New Mexico were "becoming sensible of the fact that the trial by jury is the great attribute of a free government." In a speech at a testimonial dinner in his honor in 1855, New Mexico Supreme Court Justice Perry E. Brocchus described the courts as the guardians of life, liberty, property, and reputation. The judiciary, he concluded, is "the sacred repository of the dearest of human rights."30 In short, the Americans were very proud of their legal system and expected it to play a major role in elevating and Americanizing the people of New Mexico.

     The key figures in the building of a new, American, procapitalist legal system were the lawyers. As historian David Reichard explains in his study of the legal system of territorial New Mexico, "lawyers promoted an ideology placing themselves at the center of managing social conflict in the territory," claiming that they were "especially suited to transform New Mexico from an allegedly corrupt, arbitrary and lawless place into a model of law and order worthy of allegiance to the United States."31 Indeed, the American occupation brought a substantial increase in the number of lawyers in New Mexico: there had been only one trained lawyer in the territory when it was part of Mexico, but within a decade of the American takeover there were at least eleven attorneys in the Territory.32 A month after the Americans took possession of the Territory, the Catholic priest Antonio Jose Martinez was quoted as commenting to his students who were studying for the priesthood, "You might say that the American government is like a burro, but on this burro jog along the lawyers and not the clergy."33

III. American View of Indians Litigating

Although participation in the court system was key to the citizenship of Americans and Spanish-Mexicans, many nineteenth-century Americans wondered whether litigation was appropriate for the Indians, whom many regarded as simple and childlike. Since they would not permit a child to sue or be sued, they wondered whether the same policy should be applied to Indians. Many believed that Indians, including the Pueblo Indians, needed to be protected by a paternalistic figure because they were not capable of protecting their own rights and interests themselves. Under the Spanish, there had been special laws to protect the Indians, and a Protector of the Indians was appointed to serve as guardian of their interests, though those protective laws had loosened after Mexican independence.34 Nevertheless, in 1846 many still believed that the Pueblo Indians should be wards of the government.

     To the Americans, the status of the Pueblo Indians was not clear cut. First, there was debate over whether the Indians were, or should be treated as, citizens of the United States. As a general rule, members of Indian tribes living within the borders of the United States were not regarded as citizens of the country. U.S. government officials in New Mexico agreed that because the Pueblo Indians lived in settled villages and supported themselves through agriculture, they were more "civilized" than other Indians. Yet there was also a strong consensus that their semicivilized status did not mean that the Pueblo Indians could be entrusted with the rights and responsibilities of citizenship.

     Second, there was the question of applicability of the Federal Indian Trade and Intercourse Act of 1834, which made Indians wards of the U.S. government and guaranteed federal protection of covered Indians and their property.35 Governor Calhoun strongly and repeatedly recommended extension of the statute to cover the Pueblos, as it protected other Indian tribes in the United States, in order to shield them from abuses and encroachments, but the statute was not applied to them in the 1850s. The status of the Pueblo Indians remained ambiguous for decades, during which time they were neither entirely equal citizens nor fully protected wards of the federal government.36 One effect of excluding the Pueblos from coverage of the federal trade and intercourse laws was that, since they were not protected by the federal government, they had to initiate their own lawsuits to protect themselves from exploitation.

     A statute enacted by the Legislative Assembly of New Mexico in 1847 authorized Pueblo Indians to sue and defend as a corporation. In March 1850, Hugh N. Smith (who was later an attorney in the Acoma v. Laguna case) explained to the commissioner of Indian affairs that "[t]hese different Pueblos are now according to law Quasi Corporations, and to a great extent have the management of their own affairs, and the internal police of their towns, and can appear in any court and sue and be sued by the name of their separate towns and villages."37

     The Pueblo Indians did take some complaints to American courts. For example, the pueblos of Acoma and Laguna had resorted to formal litigation to resolve their long-running dispute over land boundaries and water rights, after trying less formal methods of dispute resolution for many years. The pueblos had submitted petitions to the Mexican government on at least three occasions-Laguna in 1827 and Acoma in 1829 and 1841-but the conflicts were not resolved before the U.S. occupation.38 At least three American governors sent agents to the pueblos to work out an agreement: Governor Calhoun sent John Tullis in 1851, Governor Meriwether sent John Ward in 1854 (and then later met with the pueblo leaders himself), and Acting Governor Davis sent Abraham G. Mayers in 1856.39 When all of these efforts failed to solve the problem, it ended up in court. After a trial in the district court, the two pueblos settled the lawsuit in Acoma's favor in a boundary agreement dated July 6, 1857.40

     Even though attempts on the part of numerous Spanish, Mexican, and American government officials had failed to resolve the dispute between the two pueblos over land boundaries and water rights, many Americans nevertheless disapproved of Acoma and Laguna resorting to litigation. Acting Governor Davis blamed the 1847 statute for encouraging the two pueblos to turn to the courts. "The Act of Assembly, giving these Indians the right to sue and be sued, is most mischievious in the tendency, and is working great wrong to this simple-minded people," he asserted. In an address to the New Mexico Legislative Assembly on December 3, 1855, Davis further observed that the statute "fosters among the different pueblos, a spirit of litigation, and when any difficulty arises between them, instead of submitting its adjustment to those appointed, by the United States, to look after their immediate welfare, they resort to our courts, where the breach is more likely to be widened, than healed." Governor Meriwether agreed with Davis that the 1847 law should be repealed by Congress if the New Mexico legislature would not repeal it, and Abraham Mayers advised that disputes between pueblos should be resolved by Indian agents like himself rather than in the courts.41

     Thus, despite their enthusiasm about the benefits of the American court system for the people of New Mexico generally, the government officers of New Mexico, like many Americans, did not believe that the resort to litigation served the Indians' interests. The legislature did not repeal the 1847 law, however, leaving the courts open to the Pueblo Indians.

IV. Dispute over the Painting of San Jose

In 1855, the pueblo of Acoma brought the dispute over the painting of San Jose to the U.S. District Court for the Territory of New Mexico. It is interesting that the pueblo apparently did not bother to turn to the local justice of the peace for resolution of the dispute. Although the JP's jurisdiction included matters where the amount in controversy did not exceed $100, which would presumably apply to the painting in question, once the leaders of Acoma chose to follow a legal route, they went directly to the U.S. district court. Having received the pueblo of Acoma's petition (that is, their complaint initiating the lawsuit), the judge of the district court issued a writ, dated February 22, 1855, ordering that the case be heard on the first day of the April session of the court in the Valencia County seat, Tome.42

     The courthouse in Tome was hardly a majestic setting designed to dazzle participants and spectators. Acting Governor Davis described the village as "not more than four hundred inhabitants" set in a valley between mountain ranges. The town had at one time been very prosperous, but repeated Navajo raids had forced people to desert the town, leaving it in a dilapidated condition. The courthouse itself was "a small one-story mud building," Davis wrote. "The room was long and low, and had a platform slightly elevated at one end for the judge, a small table for the members of the bar and clerk, and three benches for the rest of the world. The light of heaven that was shed upon the proceedings struggled manfully through two small and dirty windows, and partly dispelled the gloom within."43 Here witnesses from Acoma and Laguna presented their testimony about the painting of San Jose in 1855.

The Lawyers

The lawyers representing the Indians in Acoma v. Laguna-John S. Watts, Spruce M. Baird, Hugh N. Smith, Richard H. Tompkins, and Merrill Ashurst were men of high status in New Mexico. In 1855, when the case went to court, Watts, a lawyer from Indiana, had recently finished a term on the New Mexico Supreme Court (1851-1854). Following the case, he served as New Mexico's delegate to Congress (1861-1863) and, subsequently, as chief justice of the Territory (1868-1869). Baird was a rancher, lawyer, and judge from Texas who served in New Mexico as an agent to the Indians early in the 1850s and had been elected to the lower house of the New Mexico Legislative Assembly. Later, he was appointed U.S. attorney general in the Territory. Smith had been elected delegate to Congress from New Mexico in 1849 and had served as a member of the upper house of the Legislative Assembly of New Mexico. Prior to the case, Kentucky-born Tompkins had been clerk of the U.S. district court. After the case, he was named U.S. district attorney in New Mexico. In 1855, Alabama-born Ashurst had just finished a term as attorney general in New Mexico (1852-1854) and before that he had served in the lower house of the New Mexico Legislative Assembly. He was district attorney for the last two years of his life (1867-1869).44

     There were both political and financial reasons for defending Pueblo Indians. Lawyers were dependent on political figures for appointment to government offices, and they tended to align themselves with one of the political factions in the Territory. Lawyers who opposed the governor were in a stronger position to attack him for threatening the Indians' rights if they themselves were defenders of the Pueblo Indians in court. For example, Smith and Ashurst used their status as defenders of their "Pueblo friends" to undermine Governor Calhoun by publicly accusing him of scheming to deprive the Pueblo Indians of their lawful rights.45 And in general, representing as many clients as possible made lawyers more visible, which made it more likely that they might be appointed or elected to a governmental office. Doing legal work in different counties also gave lawyers the opportunity to get to know the judges better, since they often traveled together around the judicial circuit.

     Beyond politics, however, there were perfectly sound financial reasons for defending Pueblo Indians. The retainer agreement signed by one of the lawyers for Acoma, Spruce Baird, states that he was to be paid $1,000 for representing the pueblo in its various lawsuits (including the disputes between Acoma and Laguna over land and water, a suit against Laguna demanding the return of sixty sheep to Acoma, suits against various individual members of Laguna for assault and battery, and a suit against Victor de la O for the title documents to Acoma's land, as well as the suit for return of the painting of San Jose). One half of the payment was made in advance, by the delivery to Baird of twenty-Five cows and heifers, and the balance was to be paid when the cases were resolved.46 In the early territorial years, it would have taken a full-time blacksmith about two years to earn one thousand dollars and a servant six to eight years to earn that much.47 Especially considering that Baird was not precluded from handling other cases or engaging in other occupations at the same time as he represented Acoma, the $1,000 fee was reason enough to work for the pueblo and would allow him to live quite comfortably in New Mexico.

     Several New Mexicans expressed a concern that the various lawsuits between the pueblos of Acoma and Laguna were too expensive for the Indians and would end up benefiting only the lawyers.48 If Spruce Baird's compensation agreement was a typical arrangement, however, then the two pueblos knew in advance exactly how much they would be spending in legal fees, and they would be making payment in animals, not giving up their own land. Furthermore, given the failure of extrajudicial resolution efforts in the range of disputes between Acoma and Laguna, it can certainly be argued that the two pueblos were acting reasonably and rationally when they hired lawyers and took their various cases to court.

The Pueblo Indian Witnesses

The pueblo of Acoma called five witnesses to testify, while Laguna Pueblo called nine. Among Acoma's witnesses were its governor, Mariano Pancho, its former cacique, Antonio, and two former war chiefs, Vicente and Pablino.49 It is clear from the testimony of Acoma's fifth witness, Juanico, that, though he was not an official of the pueblo, he was a well-established, senior male member of the community, not a single young man.

     Laguna called its governor, Juan Pedro Garbiso, and its alcalde, Jose Maria Achuside, to testify; both were respected men in their sixties. In addition, they called Luis Saracino, a highly regarded and active member of the pueblo who had studied to be a priest. They also called the resident Protestant minister, Samuel Gorman, along with one other man living in the pueblo, Santiago Carpentero.50 Laguna's other witnesses lived outside the main pueblo: Jose Chaves lived in the nearby town of Ceboletta and visited Laguna once a week, Jose Francisco Aragon had lived in Laguna in the past but at the time of the trial lived in Ceboletta, and Jose Antonio Dusan and Juan Gonzalis lived in neighboring Cubero but often went to Laguna.

     All of the witnesses were men. Explicit and implicit references to age lead to the conclusion that most, if not all, of the witnesses were older men. Many of them were high officials in pueblo government, some holding traditional leadership positions (such as cacique and war chief) and others holding positions in municipal structures created by European colonizers (such as governor and alcalde).

     By bringing their dispute to the new United States court system, these leaders of the pueblo communities were indicating their acceptance of the authority of that system. Antonio's testimony on behalf of Acoma Pueblo went the furthest in explicitly accepting the Americans' superior position. Antonio had been among the men who, at the priest's request, had originally taken the painting to the pueblo of Laguna on loan for Holy Week. Yet Antonio testified that because he was just an "ignorant Indian," he could not remember exactly when the picture went to Laguna. Of course Antonio, who had served as the highest religious leader of Acoma Pueblo, was not at all ignorant. But labeling himself as ignorant expressed pueblo humility and deference to the Americans. The Indians had to act in conformity with their presumed proper societal position in order to succeed in court. The deference they exhibited is similar to the behavior of Spanish-Mexican women appearing in New Mexico courts in the nineteenth century. As Deena J. Gonzalez has pointed out, as long as women acted consistently with the behavior demanded by prevailing gender prescriptions-that is, as long as they acted with modesty, decorum, respect, deference, humility, and unobtrusiveness-they usually got what they wanted from the courts.51Antonio, it appears, was smart enough to know that deference was essential for the pueblos to achieve what they wanted, and he successfully played to American expectations. Thus the Pueblo Indians indicated their acceptance of American rule by participating in the legal system and by doing so in the approved manner, consistent with their status in the Territory.

     Just as important, territorial officials, by showing respect for the testimony of these pueblo leaders and allowing them to represent the views and the traditions of their communities, were endorsing and reinforcing the authority of older men, especially older men holding formal leadership positions, in the pueblos. In fact, just by bringing (or defending) the case on behalf of the community, pueblo officials were bolstering the collective identity of the pueblo and, in addition, strengthening their own positions as leaders in their communities. The situation in mid-nineteenth-century New Mexico was comparable to eighteenth-century Guadalajara, where, Eric Van Young notes, some Indian officials may have brought land suits "to consolidate their own hold on political power in the community." He points out that in the late colonial period "[t]he village's hold over its sons and daughters, its claims upon their participation and allegiance, were increasingly at issue," and therefore "an aggressive assertion of communal identity would have served to reinforce the slackening bonds of communal life and thus bolster the position of village power-holders."52

     The trial in Acoma v. Laguna was mutually beneficial for both political authorities. In exchange for signaling their acceptance of American political representatives in New Mexico by participating in their legal process, the older male leaders of the pueblos gained an endorsement of their own authority at home, especially power over women and younger men.

Testimony: Language of Memory and Language of Rights

The Pueblo Indians' testimony went through several layers of interpretation: Jose Simon and Salvador Garcia translated from the Keresan language into Spanish, then Vincent St. Vrain translated from Spanish into English, and Frederick Layton took the spoken word and transcribed as much as he could into his trial notes. Only the final layer of nineteenth-century interpretation remains available to the historian. Despite the distance between the Indians' original words and the trial notes, however, the record reveals a significant difference between Pueblo Indian and American legal language.

     Neither pueblo had written evidence of ownership of the painting, nor was either pueblo specific about exactly when any of the events concerning the painting took place. Instead, both pueblos relied on references to "tradition" and to their memory of the words of their old men, their elders, in explaining why the painting should hang in their pueblo's church. Santiago Carpentero, a member of Laguna Pueblo, testified that he had known San Jose "since he had reason" and claimed that the painting belonged to Laguna. He asserted that according to tradition, that is, "according to the history of the old men of Laguna the saint has been in Laguna ever since the formation of the Church and that it came from Spain or Mexico." A fellow member of the pueblo, Jose Maria Achuside, testified that he had known San Jose "since he opened his eyes in this world" and that he had heard the old men of Laguna speak of the saint, saying that it came from Spain. Juan Pedro Garbiso, governor of Laguna, testified that he had known San Jose all of his life and that it belonged to Laguna. He explained, "the old men of Laguna said the Picture was brought from Spain."

     In their written Answer to Acoma's Petition, the pueblo of Laguna also relied heavily on the language of memory and tradition. They said that "they know nothing of the origin of said painting of San Jose except from the tradition of their old men handed down for several generations past and such tradition clearly and conclusively establishes the right of said Pueblo of Laguna to said painting of San Jose and manifests clearly that the same is the property of said Pueblo of Laguna." They said that "their traditions teach them that the painting belongs to them" and "they believe said traditions to be true."53

     One of the complications of these arguments based on memory and tradition was that Laguna Pueblo had been settled, probably around 1697, by dissident Acoma Indians and other Pueblo Indians who had taken refuge at Acoma during the second conquest of New Mexico. So it is conceivable that a century and a half later members of both pueblos could legitimately claim a memory of possessing the painting, which was apparently acquired sometime during the last few decades of the seventeenth century. Thus, the Indians of Acoma Pueblo, like those of Laguna Pueblo, claimed that, in their memory, the painting was theirs.

     The Americans were more used to arguments based in the language of "rights" than in the language of "tradition." In fact, although the Pueblo Indians' oral testimony spoke of tradition and memory and made no reference to "rights" at all, the written court papers, which had been drafted by the American lawyers, did use the language of rights to argue each side's position. For example, in Acoma's Petition, the drawing of lots was described as intended to settle the question of "the right and possession" of the painting; and when Laguna took the painting back, Acoma complained in the Petition, the other pueblo was "wholly disregarding the rights" of Acoma. Laguna was determined to possess the painting, Acoma's Petition said, "regardless of right or the decision of God & the saints and the decisions of the Cura." Laguna's lawyer used the word "rights" in similar ways in their written Answer. The Answer denied that the "Pueblo of Acoma ever at any time had any title or right to said Painting" and claimed that the Laguna people themselves had "the right" to the painting of San Jose. Although they acknowledged taking the painting from Acoma after the drawing of lots, they claimed that they "had a right" to take back property that belonged to them. Laguna's Answer even made reference to the U.S. Constitution. Their lawyer argued that "under the Laws and Constitution of the United States religious opinion and belief is free and the exercise of it incurs no forfeiture of that which belongs to them nor does it invest the Pueblo of Acoma with the right and title to their Painting of San Jose or any other article of property."

     Pueblo Indians adapted as required to the legal structures of the Americans, as they had previously adapted to the Spanish judiciary. The ideals and values of these foreign legal systems were quite different from their own cultural approach to dispute resolution, but using those systems was a practical necessity. The Pueblo Indians used the American courts effectively, but at the same time they retained their own cultural voice. While the American lawyers spoke repeatedly of rights, the Indians framed their testimony in terms of tradition.

The Painting in Pueblo Indian Religion and Culture

Witnesses from both pueblos testified that the painting of San Jose was an object of deep affection, esteem, and veneration. It was of great importance to their worship. In fact, Indians from both Acoma and Laguna said they needed the painting in order to prevail with God.

     In order to undermine Laguna's claims to the painting, witnesses for Acoma repeatedly raised questions about the depth and genuineness of Laguna's devotion to the Catholic Church. As Acoma argued in the Petition filed later in the lawsuit over the painting, the pueblo of Laguna had recently "in a great measure apostatized and departed from the faith of the holy catholic church." More specifically, Laguna had caused its own church building "to be desecrated by permitting men hostile to the Catholic faith to enter the same," and the Laguna people had "repeatedly declared that they (Laguna) were no longer Christians and that they did not believe in the saints." As became apparent in the testimony, Acoma based these assertions on the presence of the Baptist missionary, Samuel Gorman, in Laguna Pueblo. Furthermore, in Acoma's motion for a court injunction removing the painting from Laguna's possession until the dispute was resolved, Acoma claimed that it had "a well grounded fear" that if the painting remained in Laguna the people of that pueblo would "destroy the saint or conceal it or deface it" so that it would be rendered useless. Thus witnesses testifying for Acoma-most notably Juanico and Vicente tried to undermine Laguna's claim to the painting not only by pointing out that Laguna had a resident Protestant minister but also by raising questions about the other pueblo's commitment to Catholicism, its belief in the saints, and how much it really cared about the painting. Naturally Acoma also testified to its own deep commitment to Catholicism, pointing out that there was no Protestant minister in Acoma and reminding the court that "all Acoma are Catholics."

     Laguna did not deny the presence of the Protestant minister, but witnesses Juan Pedro Garbiso, Jose Maria Achuside, Samuel Gorman, and Luis Saracino insisted that the pueblo was Catholic. They did try to weaken Acoma Pueblo's claim to the painting by asserting that the patron saint of Acoma was not Saint Joseph (San Jose) but Saint Stephen (San Esteban). Even the names of the respective churches suggested the different primary allegiances of the two pueblos: the church in Laguna Pueblo was called the church of San Jose de Laguna, and the church in Acoma was the church of San Esteban [or Estevan] del Rey. Jose Chaves, Jose Antonio Dusan, and Jose Francisco Aragon asserted on behalf of Laguna Pueblo that even if Acoma legitimately had two patron saints, the fact that the pueblo had an alternative guardian (Saint Stephen) meant that they had less need for Saint Joseph.

     Although both pueblos presented the religious aspects of the dispute in terms of Catholicism, that does not mean that they actually viewed the painting exactly as Spanish-Mexican Catholics did. Although they deemed it expedient to base their courtroom arguments on perceived European-American religious values, the Pueblo Indians probably assigned quite a different meaning to the painting than the Spanish-Mexican Catholics did. Although Acoma's and Laguna's display of the San Jose painting was a result of their adoption of the Catholic religion, their worship of the painting was also affected by their own traditional religious framework.

     Pueblo Indians had traditionally worshipped images or masks of gods in order to pray for rain, especially during dry spells. During a visit to Laguna Pueblo during the time of the dispute over the San Jose painting, W. W. H. Davis happened to witness Laguna worship of a representation of Montezuma, "the most cherished . . . of all their ancient heathen gods." Davis observed three Laguna Indians worshipping the circular piece of tanned skin, about nine inches in diameter, with a picture of a man represented on one side. He commented that the Indians "looked upon it with the greatest apparent veneration, . . . knelt around it in the most devout manner, and went through a form of prayer, while one of the number sprinkled upon it a white powder."54 The representation of Montezuma on tanned skin and the Indians' method of worshipping Montezuma through a picture of the god give us a glimpse of their mental framework when they regarded pictorial representations of Catholic saints.

     The dispute over the painting of San Jose exemplifies the complexity of Indian religious beliefs in the Southwest. On the one hand, the Pueblo Indians were devoted to San Jose, but on the other hand they did not all accept the priest's resolution of the conflict. They believed that the saint could bring them rain, but they did not respect the religious authority of the priest. This is evidenced by the seizure of the painting even though the priest had told the Indians that God and the saints would decide the case by determining who drew blank lots and who drew the lot with the picture.

     It is impossible to assess what the Pueblo Indians thought about Catholicism, to measure how much Church doctrine they believed, or to tell how Catholic they were. Clearly the Indians did not give up their own religious beliefs and practices, but they also did not wholly reject Catholicism, and they were not simply pretending to be Catholics. They had reached some sort of syncretic balance.55 We cannot know exactly where the painting of San Jose Fit into their broader religious worldview. To some extent, however, the particular form of their attachment to the painting of San Jose, and their beliefs about what it could do for them-especially their belief that praying to the image would bring rain to their dry soil-were shaped not only by Catholicism but also by their own traditional religious beliefs and therefore were a part of their own unique culture. By allowing the Pueblo Indians to bring their dispute over the painting to U.S. courts, the Americans were thus accommodating an aspect of Indian culture.

The Courts' Decisions

The president of the United States appointed three justices to the New Mexico Supreme Court. Each of the three supreme court justices also served as the district judge in one of the district courts. In 1855, when Pueblo of Acoma v. Pueblo of Laguna came to the district court in the third district, Justice Kirby Benedict was serving as the presiding judge. President Franklin Pierce had appointed Benedict to the New Mexico Supreme Court and the third district court in 1853.

     When he received Acoma's Petition in February 1855, Benedict ordered that the case be heard at the next session to be held in Valencia County in April. Because Acoma claimed that the painting of San Jose was in danger of being destroyed by the people of Laguna, Benedict decreed that Laguna surrender the painting to the Valencia County sheriff, who was to place it in the custody of Fray Vicente Saturnino Montana, the cura, or parish priest, in Tome. Montana was to keep the painting until the court resolved the dispute between the two pueblos.

     At the conclusion of the trial, after hearing the testimony on both sides, Judge Benedict decided that the picture of San Jose rightfully belonged to Acoma and that the people of Laguna had wrongfully taken the painting by force. He decreed that the painting be restored to Acoma, that Laguna be perpetually enjoined from "further molestation of the said plaintiffs on account of said property," and that the pueblo of Laguna pay the costs of the lawsuit. The Bill of Costs shows that the total costs of suit, not counting attorneys' fees, amounted to $61.40. Despite the expenses already incurred, however, the pueblo of Laguna appealed the case to the Supreme Court of the Territory of New Mexico.

     The New Mexico Supreme Court, which met only once a year, heard the Acoma v. Laguna case in the January term, 1857.56 The three justices on the court were Kirby Benedict, James J. Davenport, and Perry E. Brocchus. The decision was written by Davenport, who was chief justice of the court from 1853 to 1858.

     Laguna Pueblo raised two legal issues in its appeal. First, it argued that Acoma was barred by the statute of limitations from bringing its lawsuit, apparently because the painting had been in the possession of Laguna for so long before Acoma brought suit. The Supreme Court of New Mexico quickly rejected this argument on the grounds that any such claim should have been made in the district court, when Laguna first answered Acoma's Petition. It ruled that if an argument based on the statute of limitations is not raised in the lower court, it is presumed to be waived and cannot be raised for the first time later, at the appellate stage of a case.

     Laguna's second legal argument was that the pueblo of Acoma was not the appropriate party to bring the lawsuit; Laguna asserted that the suit should have been brought in the name of the parish priest. Again, the supreme court noted that this objection was not raised in the district court. Furthermore, the supreme court explained, the evidence showed clearly that the painting was not the property of any priest. Acoma witness Juanico testified that the vicar general, Juan Felipe Ortiz, recognized the painting as belonging to Acoma. A number of witnesses described how Fray Lopez arranged for the drawing of lots and declared that the painting belonged to Acoma. He obviously did not claim that the painting belonged to him but, rather, "interfered only to compromise the dispute between the two contending pueblos concerning it." The evidence clearly showed that the painting belonged to the pueblo of Acoma, to whom the "painting is an object of great veneration . . . as well from its supposed spiritual protecting patronage, as its high antiquity among them," Justice Davenport wrote on behalf of the supreme court. Therefore, the court concluded, "it is clear that the court below committed no error in not requiring the Spanish priest . . . to be made a party to this suit." Rejecting both of the arguments raised by lawyers for Laguna, the Supreme Court of New Mexico ruled in favor of Acoma, affirming the decree of the district court.

     The justices, like other dominant Americans in territorial New Mexico, saw themselves as parental figures, amused at the "simple" and "superstitious" belief systems of the Indians, yet willing enough to tolerate them and to deal with them in the court system. Kirby Benedict was particularly blatant in conveying this patronizing attitude. "However much the philosopher or more enlightened Christian may smile at the simple faith of this people" in the powers of this painting of their guardian saint, Benedict observed, "to them it was a pillar of fire by night and a pillar of cloud by day, the withdrawal of whose light and shade crushed the hopes of these sons of Montezuma, and left them victims to doubt, to gloom, and to fear." The justice commented that "[i]t is gratifying to us to be the judicial agents through which an object of their faith and devotion . . . [is] more safely restored and confirmed to their possession and keeping." By acting to restore the painting to the people of Acoma, Benedict wrote, the court "throws around them the shield of the law's protection in their enjoyment of their religious love, piety, and confidence."57

     As parental authorities, the Americans saw themselves in a position to protect and help those who were naive, weak, and ignorant and to use American government in general to educate, civilize, and elevate "lesser" peoples. And they saw the legal system as playing a major role in accomplishing those goals.

V. Impact and Meaning of Acoma v. Laguna
Undermining Alternative Authorities: The Justices of the Peace and the Priests

The situation in mid-nineteenth-century New Mexico is comparable in many ways to that of colonies in other parts of the world, but it is complicated by the fact that the United States was not the first external authority to take Pueblo Indians under its control. When the United States arrived in New Mexico, some of the job of acculturation to European/American legal concepts was already accomplished: for three hundred years, the Pueblo Indians had been adapting to the Spanish (and the Spanish to the Pueblo Indians). Thus, the Americans' task was probably easier than if they had been the first foreign conquerors of the territory. Coming second brought disadvantages as well, however. It meant that the United States had to persuasively displace not only indigenous authority but also Spanish political and Catholic religious authority.

     Acoma v. Laguna was a strong assertion of American legal machinery. By settling the conflict over the painting in the U.S. district court and backing up the decision with enforcement mechanisms, the American government helped undermine the attractiveness and authority of alternative venues. Pueblo Indians still had the option of resorting to informal, unofficial resolution by priests or caciques or turning to official but flexible resolution by local justices of the peace. But the district court justices in Acoma v. Laguna welcomed Indian testimony and treated it seriously. In addition, the court successfully produced an enforceable resolution of the dispute. This meant that in the future the Pueblo Indians would probably be less likely to utilize those alternatives.58

     David Reichard has pointed out that Spanish-Mexican men continued to control the courts of the local justices of the peace for decades after the U.S. conquest. In order to consolidate American power and control in New Mexico, he notes, the United States government sought opportunities to shift authority from those local courts to the federally controlled district courts whenever possible. By demonstrating that the federal court system in the Territory could effectively serve Pueblo Indian interests, Acoma v. Laguna provided a precedent that may explain why the Indians chose to seek remedies in district court in later years-including the lawsuits of the 1890s over access to water (described by Reichard).

     Acoma v. Laguna also conveyed a powerful message about the Church's role in dispute resolution. Under Spain and Mexico, the Catholic Church had exercised not only religious and social authority but also significant political and legal authority. Although Church and State officials often battled each other for power, they also often buttressed each other's interests. The separation of Church and State in the United States meant that there could no longer be any official governing or adjudicatory role for the Catholic Church in New Mexico. Acoma v. Laguna was an important assertion of U.S. secular control over all formal, official legal activity in the Territory. The court did not reverse the decision of the priest. But by taking jurisdiction of the case and ruling on it, the court was asserting its own and the government's power. By accepting jurisdiction over a dispute about religious property, the territorial court was signaling both that the Catholic Church was not exempt from the rule of law and that the civil courts were the most appropriate venues for resolving disputes. The Church came out of the case looking weaker and less relevant as a political and legal power, and the relative authority of the secular U.S. government was thereby strengthened.

Asserting Rational Legal Decision Making

Acoma v. Laguna was also a firm assertion of rational legal process over what the Americans perceived to be irrational methods of dispute resolution. Resolving the conflict over the painting through a formal trial and backing the decision with enforcement mechanisms provided a sharp contrast to the priest's informal and irrational and ultimately unsuccessful approach to dispute resolution. To the Americans, drawing lots to decide a disagreement over property was an expression of superstitious beliefs; it was most definitely not civilized law. Not surprisingly, in this era that witnessed the rise of the anti-Catholic Know-Nothing Party, the Americans found it difficult to separate what they categorized as superstitious dispute resolution by a priest from the basic superstitiousness that seemed to underlie Catholicism itself. They knew that superstition had no rules, no precedents, and no proof. It relied solely on blind faith.

     And this form of decision making by the priest was not, to the Americans, substantially different from the informal, discretionary dispute resolution by the old alcaldes or the new justices of the peace. Those local magistrates had no legal training and rarely based their decisions on written laws. Thus their decision making, too, was seen by the Americans as irrational and New Mexicans' faith in such decisions as blind as their faith in the priest or the saints. The Americans perceived New Mexicans as oppressed by a kind of political superstitiousness, a blind faith that local government officials would protect them and make them prosperous.

     Rational and predictable law was essential for incorporating New Mexico into the national economy. And rationalizing property law and contract law was most important in order to ensure a smooth-working economy that encouraged financial investments, market exchanges, and real estate development. Acoma v. Laguna involved both of those essential fields of law and thus established and reinforced legal principles that were crucial to economic incorporation and development.

     The trial in Acoma v. Laguna helped demonstrate the impersonal, predictable rationality of the American legal system and therefore may well have helped wean the Pueblo Indians and other New Mexicans of their reliance on informal justice. It is remarkable that the Americans paid attention to this dispute over property that had so little value. For the Americans, however, the material value of the painting was not relevant. The purpose of the trial was not just to resolve the dispute and keep peace between the two pueblos but also to introduce New Mexicans to this rational American legal system and to encourage them to turn to the courts rather than to discretionary and informal authorities for resolution of their disputes.

The Court as a "Middle Ground"?

David Reichard asserts that late nineteenth- and early twentieth-century New Mexico courts constituted a "legal middle ground." He persuasively describes how the courts were "active sites of contest where New Mexicans waged major struggles over land, water, local politics and the maintenance of community autonomy," and he convincingly argues that Spanish-Mexicans played an influential role in negotiating the shape of the legal system of territorial New Mexico in the nineteenth century.59 The Spanish-Mexicans constituted a majority of the population, the Treaty of Guadalupe Hidalgo explicitly gave them the right to become American citizens and voters, and they continued to hold many government offices after the U.S. occupation. Consequently, the Americans had much to gain from accommodating Spanish-Mexicans' interests. Reichard's analysis naturally raises the question of whether Acoma v. Laguna exemplifies a similar role for Pueblo Indians in the early territorial court system.

     Certainly the Pueblo Indians were not completely passive and helpless victims of a system simply imposed on them. They were legal actors who chose to use the American court system to achieve their own goals. Indeed, it appears that in the Acoma v. Laguna case they were savvy legal consumers who knew when to resort to formal litigation and how to use the courts effectively. Although Spanish colonial courts had served as tools of acculturation and control, for three hundred years the Pueblo Indians had used those same courts to protect and defend their own interests against Spanish encroachment and exploitation. They knew that colonized people could shape the outcomes of individual lawsuits by the ways they presented their cases, told their stories, and represented their traditions. Furthermore, they understood well that courts were places of interplay, negotiation, dialogue, and mutual accommodation.60 Therefore, it would be a mistake to regard the Acoma and Laguna as completely controlled by a hegemonic U.S. power that conceded nothing in the courtroom.

     In fact, Acoma v. Laguna demonstrates some ways in which subordinated groups could gain benefits from the legal system and ways in which judges were willing to accommodate the interests of such groups. First, the Acoma Indians won a tangible victory: they got their painting back, a painting that they regarded as an important element of their religious practice and as an essential tool for ensuring rain for their crops. Second, when the U.S. courts accepted established male leaders of the pueblos as spokesmen for the Indians in court, they reinforced those leaders' power in the pueblos. Third, in Acoma v. Laguna the Americans acknowledged and supported an element of Pueblo Indian culture that was foreign to most Americans. By accepting jurisdiction of the dispute over the painting of San Jose the courts gave support to Pueblo Indian religious beliefs, which blended Catholicism with traditional spiritual doctrines and practices. In fact, since the goal of the lawsuit was ownership of an object presumed to have (or at least have access to) supernatural powers, by accepting this case the courts went further than merely supporting pueblo religious beliefs: they allowed the Acoma to use the supposedly rational American legal process to achieve what the Americans themselves probably regarded as an irrational goal.

    Although the Pueblo Indians (or at least some of the Pueblo Indians) gained important benefits from the court, and the United States showed a willingness to accommodate certain aspects of Pueblo culture in the courtroom, it is important not to overstate the degree of Pueblo Indian influence and autonomy in New Mexico's courts. They were not acting on a plane of equality with the English-speaking judges. One can compare the situation of the Indians to that of Spanish-Mexican women in nineteenth-century New Mexico. As Deena Gonzalez notes, few of those women had chosen or invited the changes that came with conquest by the United States. "To view their choices or decisions as self-conscious action, as mere adaptation, or, from a slightly more proactive position, as an adoption of 'something new,'" she observes, "implies complicity or motive based on knowledge, implies . . . an egalitarian lineup of choices." Gonzalez regards such a view as unrealistic, given the hierarchical, patriarchal, and hegemonic nature of the institutions that the United States brought to New Mexico.61 Similarly, although the Pueblo Indians were permitted to use the legal system, they had little negotiating power in the face of overwhelming domination by the Americans.

     Furthermore, the Indians made important concessions in Acoma v. Laguna. Most important, by participating in the U.S. legal system, the Acoma were accepting American rule, including U.S. authority over a religious matter. Meanwhile, the United States lost nothing and drew significant benefits from the case. U.S. government officials in New Mexico gained greater acceptance as the primary political and legal authorities and had the opportunity to convey lessons in the rationality of the American judicial process. Even one of the presumed benefits to pueblo leadership turned out to be just as useful to the United States: by awarding recognition to the male elders the Americans made it more likely that the elders would help maintain order and stability in the pueblos. In short, this case does not suggest that the Pueblo Indians played as significant a role in shaping and influencing the court system as Spanish-Mexicans did in the first decade of U.S. rule. To the extent that the "legal middle ground" concept implies mutual and reciprocal contributions to a legal system, it does not apply to the Pueblo Indian role in early territorial New Mexico. Although the United States accommodated certain aspects of Pueblo Indian culture in Acoma v. Laguna, at its core the case was a strong, rather one-sided, assertion of U.S. government authority and American legal values in New Mexico.


Even aside from the facts of the case, there were clear advantages to deciding in favor of the pueblo of Acoma. First, by ruling in accord with the priest's decision, the district court avoided a direct confrontation with the Church, which was a deeply embedded element of the dominant Spanish-Mexican culture in New Mexico. While the firmness of the court's decision was seen as exhibiting the superiority of "rational" civil court decision making over "irrational" priestly resolution, the court refrained from actually overruling the decision of the Church's representative.

     Second, ruling in favor of Acoma created a bond of mutual support between American officials on the one hand and both traditional tribal leaders and European-style leaders of the pueblo on the other. Acoma witnesses in the case included traditional leaders of the pueblo community (a cacique and two war chiefs) as well as an official who held a position created by the Spanish colonial authorities (the governor of the pueblo). In contrast, no traditional leaders of Laguna participated in the lawsuit; the only Laguna government leaders to testify were its governor and its alcalde. This might very well have created the impression that there was less consensus in the pueblo of Laguna about supporting the U.S. legal system. In a sense, the court's decision rewarded Acoma for involving both traditional and nontraditional leaders in the lawsuit.

     By ruling in favor of Acoma Pueblo, the United States avoided a direct challenge to the dominant religious culture of Spanish-Mexican New Mexico, accommodated important aspects of Pueblo culture, and recognized and reinforced Acoma's traditional and nontraditional leadership. Yet Americans in New Mexico were confident that in Acoma v. Laguna the United States also successfully illustrated the effectiveness, fairness, rationality, and general superiority of its legal system over alternative forms of dispute resolution, such as resolution by a priest or cacique, by a justice of the peace or a governor, or by private violence. Thus, this case is an important example of how the United States accommodated local cultural traditions in order to achieve the larger goal of solidifying its control of New Mexico, the most foreign of America's continental territories in the nineteenth century.

Deborah A. Rosen is an associate professor of history at Lafayette College. She thanks Adriana Novoa and the anonymous readers of the Law and History Review for their very helpful suggestions on earlier versions of this article.


1 For the sake of consistency, I use the English-language name for New Mexico throughout this article, even though it was known as Nuevo Mexico to the Spanish. I also omit the accent in words that are used in English, such as the place names Mexico (instead of Mexico) and Santa Fe (rather than Santa Fe).

2 On the history and population of New Mexico, see Marc Simmons, New Mexico: A Bicentennial History (New York: Norton, 1977); Ramon A. Gutierrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 1500-1846 (Stanford: Stanford University Press, 1991); David J. Weber, The Spanish Frontier in North America (New Haven: Yale University Press, 1992); and Howard R. Lamar, The Far Southwest, 1846-1912 (New Haven: Yale University Press, 1966).

3 On the political structure of the pueblos, see Joe S. Sando, Pueblo Nations: Eight Centuries of Pueblo Indian History (Santa Fe: Clear Light Publishers, 1992), chap. 1; Gutierrez, When Jesus Came; and John K. Robison, "Phoenix on the Mesa: Acoma Pueblo During the Spanish Colonial Period, 1500-1821" (Ph.D. diss., Oklahoma State University, 1997), chap. 1. On the role of religious leaders, see Leslie A. White, The Acoma Indians: People of the Sky City (Glorieta, N.M.: The Rio Grande Press, 1973) [First issued in 1932 as part of the Forty-Seventh Annual Report of the Bureau of American Ethnology to the Secretary of the Smithsonian Institution (1929-1930)], 41-42, 52-54, 63-67.

4 George P. Hammond and Agapito Rey, eds. and comps., "Trial of the Indians of Acoma, 1598," in Don Juan de Onate: Colonizer of New Mexico, 1595-1628 (Albuquerque: University of New Mexico Press, 1953), 428-79; Robison, "Phoenix on the Mesa," chap. 6; Ward Alan Minge, Acoma: Pueblo in the Sky, 2d ed., rev. ed. (Albuquerque: University of New Mexico Press, 1991), 10-16.

5 Charles R. Cutter, The Protector de Indios in Colonial New Mexico, 1659-1821 (Albuquerque: University of New Mexico Press, 1986).

6 Marc Simmons, Spanish Government in New Mexico (Albuquerque: University of New Mexico Press, 1968); Charles R. Cutter, The Legal Culture of Northern New Spain, 1700-1810 (Albuquerque: University of New Mexico Press, 1995), chaps. 3 and 4; and Daniel Tyler, Sources for New Mexican History, 1821-1848 (Santa Fe: Museum of New Mexico Press, 1984), 4-11.

7 Cutter, Protector de Indios, 79 and 92-93.

8 Complaint of the Indians of Taos against Sebastian Martin, Baltasar Romero, and others, August 13, 1731, Spanish Archives of New Mexico, 1621-1821, at the New Mexico State Archives and Records Center, Santa Fe [hereafter cited as SANM], series II, archive number 361; Judgment in suit by Indians of Pueblo of San Ildefonso against heirs of Juana Lujan, April 12-May 5, 1766, SANM II:595; Laguna Pueblo protest against Joaquin Pino's occupation of Laguna Pueblo land, September 26, 1816, SANM I:668; and Proceedings in a dispute between the Indians of Taos and some Spanish citizens, April 11-May 15, 1815, SANM I:1357.

9 For examples, see the documents in SANM II:447; SANM I:1343; SANM II:1004; SANM II:1172; SANM II:287; SANM II:367, 370, 378, 380, and 388; SANM II:394; and SANM II:2140.

10 For examples, see the documents in SANM I:1373; SANM I:380; SANM I:1381, 1382, and 1383; SANM I:1374; and Mexican Archives of New Mexico, at the New Mexico State Archives and Records Center, Santa Fe, reel 1, frame 1184.

11 Myra Ellen Jenkins, "The Baltasar Baca 'Grant': History of an Encroachment," El Palacio 68 (1961): 47-64 and 87-105 (at 60-61); and Marc Simmons, "History of the Pueblos since 1821," in Southwest, ed. Alfonso Ortiz, vol. 9 of Handbook of North American Indians, ed. William C. Sturtevant (Washington, D.C.: Smithsonian Institution, 1979), 206-23, at 207.

12 Governor William Carr Lane to William Glasgow, September 26, 1852, in "Letters of William Carr Lane," ed. Ralph P. Bieber, New Mexico Historical Review 3 (1928): 179-203, at 186; and Lane to Commissioner of Indian Affairs Luke Lea, October 30, 1852, Letters Received by the Office of Indian Affairs, 1824-1881: New Mexico Superintendency, 1849-1861, original manuscripts in National Archives, Washington, D.C., microfilm rolls 546-50 [hereafter cited as Letters Received by OIA]; Governor David Meriwether to Commissioner of Indian Affairs George W. Manypenny, August 31, 1853, Letters Received by OIA.

13 James S. Calhoun to William Medill, October 1, 1849; Calhoun to Commissioner of Indian Affairs Orlando Brown, November 20, 1849, November 30, 1849, January 28, 1850, February 2, 1850, and September 30, 1850; and Calhoun to Lea, March 31, 1851, in The Official Correspondence of James S. Calhoun while Indian Agent at Santa Fe and Superintendent of Indian Affairs in New Mexico, ed. Annie Heloise Abel (Washington, D.C.: Government Printing Office, 1915) [hereafter Correspondence of Calhoun], 33, 86-87, 88, 119, 133, 260, 307. The quotations are at 33, 88, and 307.

14 In this article, I use the adjective "Spanish-Mexican" to refer to the legal system that had its roots in colonial New Spain and the Republic of Mexico and the adjective "Anglo-American" to refer to the legal system that had its roots in the English colonies and in the early United States. I refer to the Spanish-speaking, non-Indian residents of New Mexico after 1821 as "Spanish-Mexicans." The English-speaking, non-Indian residents of New Mexico are referred to as "Americans," because that is how they were called in New Mexico in the mid-nineteenth century. Finally, the term "New Mexicans" refers to residents of New Mexico who were of European or Pueblo Indian ancestry.

15 Journal of John Ward, May 15, 1853, and June 2, 1853, in Annie Heloise Abel, ed., "Indian Affairs in New Mexico under the Administration of William Carr Lane, from the Journal of John Ward," New Mexico Historical Review16 (1941): 206-32 and 328-58, at 340 and 345; and Annie Heloise Abel, ed., "The Journal of John Greiner," Old Santa Fe: A Magazine of History, Archaeology, Genealogy and Biography 3 (1916): 189-243, at 206 and 217.

16 The role of the alcaldes as local magistrates was formally supplanted by justices of the peace after the U.S. occupation in 1846. In practice, however, many of the new JPs were the same men who had previously served as alcaldes, and in fact they were often referred to as alcaldes well into the territorial period.

17 "Journal of John Ward," July 7, 1853, and July 21, 1853, at 350 and 353.

18 For a description of the legal system of New Mexico and an analysis of the role law, courts, and lawyers played in incorporating the territory in the social, economic, and political orbit of the United States, see David A. Reichard, "'Justice Is God's Law': The Struggle to Control Social Conflict and U.S. Colonization of New Mexico, 1846-1912" (Ph.D. diss., Temple University, 1996).

19 Regarding negative impressions of Spanish-Mexicans that pervaded American travel literature in the nineteenth century, see Raymond A. Paredes, "The Mexican Image in American Travel Literature, 1831-1869," New Mexico Historical Review 52 (1977): 5-29. For a description of Americans' similar negative attitudes toward the Spanish legal system of the Louisiana Territory in the early nineteenth century, see Stuart Banner, Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860 (Norman: University of Oklahoma Press, 2000).

20 William Watts Hart Davis, El Gringo; or, New Mexico and Her People (1857; reprint, New York: Arno Press, 1973), 105-6, 253-54, 267; and Josiah Gregg, Commerce of the Prairies, ed. Max L. Moorhead (1844; reprint, Norman: University of Oklahoma Press, 1954), 159.

21 Santa Fe Weekly Gazette, September 23, 1854; Calhoun to Medill, October 13, 1849, and Calhoun to Brown, November 30, 1849, January 25, 1850, February 18, 1850, and April 15, 1850, in Correspondence of Calhoun, 46, 88, 103, 152-54, and 188.

22 Santa Fe Weekly Gazette, May 6, 1854, and May 13, 1854.

23 On the use of "rule of law" to justify and bolster U.S. colonization of New Mexico, see Reichard, "'Justice Is God's Law.'" For discussions of rule of law in other colonial settings, see Richard Roberts and Kristin Mann, "Law in Colonial Africa," and David Groff, "The Dynamics of Collaboration and the Rule of Law in French West Africa: The Case of Kwame Kangah of Assikasso (Cote d'Ivoire), 1898-1922," in Law in Colonial Africa, ed. Mann and Roberts (Portsmouth, N.H.: Heinemann Educational Books, 1991), 3-58 (especially 35-36) and 146-66, respectively. On the role of European law in the colonizing process, see the review article by Sally Engle Merry, "Law and Colonialism," Law and Society Review 25 (1991): 889-922.

24 Groff, "Dynamics of Collaboration," 147. On the relationship between a "rational" legal system and commercial growth and capitalism, see also Max Weber, Max Weber on Law in Economy and Society, ed. Max Rheinstein, trans. Edward Shils and Max Rheinstein (Cambridge, Mass.: Harvard University Press, 1954) [originally published as Wirtschaft und Gesellschaft, 2d ed., 1925], especially 266-68 and 349-56; Marc Galanter, "The Modernization of Law," in Modernization, ed. Myron Weiner (New York, 1966), 153-66; and J. Joseph Burns, "Civil Courts and the Development of Commercial Relations: The Case of North Sumatra," Law and Society Review15 (1980-81): 347-68.

25 Davis, El Gringo, 231.

26 On the different legal values among Spanish-Mexicans and Americans, see especially David J. Langum, Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846 (Norman: University of Oklahoma Press, 1987), chap. 5; and Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico (Albuquerque: University of New Mexico Press, 1994), chaps. 1 and 2.

27 See, for example, the description of a lynching in Dona Ana County in the Santa Fe Weekly Gazette, April 28, 1855, and August 25, 1855.

28 Calhoun to Brown, January 28, 1850, in Correspondence of Calhoun, 119-20.

29 Bill of Rights declared by Stephen W. Kearney in Santa Fe, September 22, 1846, printed with Laws of the Territory of New Mexico Passed by the First Legislative Assembly (Santa Fe: James L. Collins, 1852), 32-33; and "An Act declaring and establishing the Rights of the People . . . ," July 12, 1851, ibid., 152-54.

30 Davis, El Gringo, 267; and Santa Fe Weekly Gazette, October 20, 1855.

31 Reichard, "'Justice Is God's Law,'" 66-67.

32 Lansing Bartlett Bloom, "New Mexico under Mexican Administration, 1821-1846," Old Santa Fe: A Magazine of History, Archaeology, Genealogy and Biography 1 (1913-1914): 3-49, 131-75, 235-87, 347-68, and 2 (1914-1915): 3-56, 119-69, 223-77, 351-80 (at 2:12); and Ralph Emerson Twitchell, Old Santa Fe: The Story of New Mexico's Ancient Capital (Chicago: The Rio Grande Press, 1963), 341.

33 Anecdote taken from Pedro Sanchez, Memorias Sobre la Vida del Presbetero don Antonio Jose Martinez (Santa Fe: Compania Impresora del Nuevo Mexicano, 1903), 32-33, quoted in Bloom, "New Mexico under Mexican Administration," 2:379. The anecdote concludes by noting that Martinez's students changed their focus, deciding to study civil law and the English language instead of Catholicism.

34 On special protections for Indians in New Spain, see Woodrow Borah, Justice by Insurance: The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real (Berkeley and Los Angeles: University of California Press, 1983); Cutter, Protector de Indios; Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949); and C. H. Haring, The Spanish Empire in America (New York: Oxford University Press, 1947), chap. 3. On the loosening of the protective laws in the Mexican Republic, see G. Emlen Hall and David J. Weber, "Mexican Liberals and the Pueblo Indians, 1821-1829," New Mexican Historical Review 59 (1984): 5-32.

35 "An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," June 30, 1834, 4 Stat. 729.

36 On the political status of the Pueblo Indians, see the Supreme Court decisions in United States v. Joseph, 94 U.S. 614 (1876), and United States v. Sandoval, 231 U.S. 28 (1913). For an in-depth description of the battles over the lands of one Indian pueblo from the end of the Spanish colonial period until the early years of New Mexican statehood, see G. Emlen Hall, Four Leagues of Pecos: A Legal History of the Pecos Grant, 1800-1933 (Albuquerque: University of New Mexico Press, 1984).

37 "An Act to enable Pueblo Indians to bring and defend actions," December 1847, in Laws Passed by the General Assembly of the Territory of New Mexico in the Session of December, 1847 (Santa Fe: Hovey and Davies, 1848), 35-37; and Hugh N. Smith to Brown, March 9, 1850, in Correspondence of Calhoun, 224-26. The quotation is at 225.

38 Laguna's Petition to the Provincial Deputation, dated June 15, 1827, is in SANM I:1291 and 1372. Governor Antonio Marin del Valle's decision in the dispute, dated April 25, 1832, is in the Arthur Bibo Collection of Acoma and Laguna Pueblo Documents, New Mexico State Records Center and Archives, document number 2. Acoma's Petitions, dated June 12, 1829 and May 6, 1841, are in the Bibo Collection, document number 4 and document number 6.

39 Calhoun to Lea, March 31, 1851, John R. Tullis to Calhoun, enclosed with Calhoun's letter to Lea, May 1, 1851, Calhoun to Lea, July 28, 1851, in Correspondence of Calhoun, 307, 339-41, and 390; Instructions and Order from Acting Governor William S. Messervy to Governors of Acoma and Laguna, April 22, 1854, in Bibo Collection, document number 10; Meriwether to Ward, July 27, 1854, in Bibo Collection, document number 11; Davis to Abraham G. Mayers, Pueblo Indian Agent, March 31, 1856, and Davis to Manypenny, March 29, 1856, Letters Received by OIA; Report of Abraham G. Mayers, April 7, 1856, and letter from Mayers to Davis, April 12, 1856,Letters Received by OIA. See also Military Governor John M. Washington's instructions to the "alcalde" (i.e., the justice of the peace) of Cebolleta requesting information on the dispute, February 27, 1849, in Bibo Collection, document number 9.

40 The water rights case is Pueblo of Acoma v. Pueblo of Laguna, U.S. District Court for the Territory of New Mexico, Third Judicial District, Valencia County, case file at New Mexico State Records Center and Archives, Santa Fe. The text of the Boundary Agreement of July 6, 1857, is in the Bibo Collection, document number 15.

41 Davis to Manypenny, March 29, 1956, Letters Received by OIA; "Message of W. W. H. Davis, Acting Governor of the Territory of New Mexico, Delivered to the Legislative Assembly," December 3, 1855, reprinted in the Santa Fe Weekly Gazette, December 15, 1855; Meriwether to Manypenny, September 1855, Letters Received by OIA; and Mayers to Manypenny, January 3, 1857, Letters Received by OIA.

42 Writ of Judge Kirby Benedict, Pueblo of Acoma v. Pueblo of Laguna, U.S. District Court for the Territory of New Mexico, Third Judicial Circuit, Valencia County, February 22, 1855. The manuscript case file, which is in the New Mexico State Records Center and Archives, Santa Fe, also contains the following documents that are referred to in this article: Petition of Pueblo of Acoma, February 1855; Benedict's Writ ordering issuance of the Injunction, February 21, 1855; Injunction issued by Court Clerk Vincent St. Vrain, February 22, 1855; Answer of Pueblo of Laguna, April 10, 1855; Evidence in the trial recorded by Frederick Layton, April 13, 1855; Decree, April 14, 1855; and Bill of Costs, April 14, 1855. All quotations of testimony in this article are from Layton's record of the court proceedings.

43 Davis, El Gringo, 356-58 and 387.

44 Aurora Hunt, Kirby Benedict: Frontier Federal Judge (Glendale, Calif.: Arthur H. Clark, 1961), 161 and 190; Arie W. Poldervaart, Black-Robed Justice (1948; reprint, New York: Arno Press, 1976), 72-83; Lamar, The Far Southwest, 88; Calhoun to Lea, March 31, 1851, February 29, 1852, and Lea to Calhoun, January 31, 1852, in Correspondence of Calhoun, 312, 473, 488; and "List of the Civil Officers of the Territory of New Mexico," included with Laws of the Territory of New Mexico.

45 "To the People of New Mexico," in Correspondence of Calhoun, 370-75.

46 Bibo Collection, document number 12, dated December 5, 1854.

47 In late 1849, James Calhoun reported that, in addition to daily rations, blacksmiths earned $40 a month, while common servants earned $10 to $15 a month. Calhoun to Brown, November 17, 1849, in Correspondence of Calhoun, 82-83.

48 See Reverend Samuel Gorman to Meriwether, May 18, 1856; Mayers to Manypenny, January 3, 1857; and Meriwether to Manypenny, September, 1855. All three letters are in Letters Received by OIA.

49 Vicente's last name was mentioned in the court documents, but it is undecipherable.

50 Reverend Gorman was the only European-American mentioned as playing an unofficial role in the case. In their testimony some Laguna members referred to Gorman as "a son of Laguna" (Luis Saracino) or as "adopted by Laguna" (Juan Pedro Garbiso), which suggests that some of them felt close to him. However, it is not clear from the court papers to what extent he may have advised the Laguna in connection with the lawsuit. Nor are other potential advisers (such as Indian agents) mentioned in the file, though it is possible that they existed. In "'Justice Is God's Law,'" David Reichard specifically notes that Pueblo litigants in the late nineteenth century were aided by Indian agents, teachers, and other advisers (see chap. 5).

51 Deena J. Gonzalez, Refusing the Favor: The Spanish-Mexican Women of Santa Fe, 1820-1880 (New York: Oxford University Press, 1999), 21-24.

52 Eric Van Young, Hacienda and Market in Eighteenth-Century Mexico: The Rural Economy of the Guadalajara Region, 1675-1820 (Berkeley and Los Angeles: University of California Press, 1981), 322.

53 Van Young also mentions Mexican Indian use of the concept of "time immemorial" or, more specifically, "immemorial possession" of land, though he points out that they were "not always justified" in making such claims. Ibid., chap. 14. The quoted phrase is on 342.

54 Davis, El Gringo, 395-96.

55 There has been considerable scholarly debate about the issue of "conversion" of Indians in the Americas. For different perspectives on Indians' responses to Christianity, see the essays in Spiritual Encounters: Interactions between Christianity and Native Religions in Colonial America, ed. Nicholas Griffiths and Fernando Cervantes (Lincoln: University of Nebraska Press, 1999).

56 Pueblo of Laguna v. Pueblo of Acoma, 1 N.M. 220 (1857).

57 Benedict made these comments about the San Jose case at the conclusion of another case involving Acoma Pueblo, Victor de la O v. The Pueblo of Acoma, 1 N.M. 226 (1857). The case report in Acoma v. Laguna does not explicitly state which of the three judges participated in the decision; as was typical at the time, only the name of the justice who wrote the opinion is mentioned. So it is possible that Benedict, who had been the judge in the case in the lower court, might have recused himself from the supreme court when it heard the appeal. This was not always the practice, however. In fact, during the same term as Acoma v. Laguna, Benedict wrote the supreme court opinions in two other cases coming from his own district, Victor de la O v. Acoma and Sanchez v. Luna, 1 N.M. 238 (1857). It was also in the January 1857 term that Justice Davenport explicitly acknowledged serving as both district court judge and supreme court justice in Bustamento v. Analla, 1 N.M. 255 (1857). The proposed state constitution of 1849 tried to end the practice by providing that the judge who tried a case in the district court would not be allowed to hear the same case on appeal, but since New Mexico was not admitted as a state at that time the provision did not go into effect in the nineteenth century. The problem was not resolved until New Mexico actually became a state half a century later.

58 For descriptions of ways in which colonial powers have displaced traditional extrajudicial means of dispute resolution in Africa, see Paul Bohannan, Justice and Judgment among the Tiv (London: International African Institute, 1957); and Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985), chap. 5.

59 Reichard, "'Justice Is God's Law.'" The quotation is at 61.

60 For a general discussion of these principles, see June Starr and Jane F. Collier, "Introduction: Dialogues in Legal Anthropology," in History and Power in the Study of Law: New Directions in Legal Anthropology, ed. Starr and Collier (Ithaca, N.Y.: Cornell University Press, 1989). For the application of the principles to the Aztec relationship with the Spanish in an earlier period, see Susan Kellogg, Law and the Transformation of Aztec Culture, 1500-1700 (Norman: University of Oklahoma Press, 1995). For a broader discussion of mutual accommodation between Native Americans and Europeans outside the legal sphere, see Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815 (Cambridge: Cambridge University Press, 1991).

61 Gonzalez, Refusing the Favor, 110.


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