By Court,
JOHNSON, J.:'
The question here raised is as to the “ ability” (as it is termed by the statutes of this territory in relation to practice in our district courts), i. e., the right of the plaintiffs to bring and maintain this action. In order to determine this question, it is necessary to consider not only whether the plaintiffs have properly set up their claim to the penalty prescribed in tbe eleventh section of the act of June 30, 1834, 4 U. S. Stats. at Large, 730, against the defendant for settling on any of tbe lauds contemplated by the statute at the time of its enactment, but also whether the provisions of this section have been extended by congress to lauds owned by inhabitants of the territory known as pueblo Indians. The eleventh section above cited says: “If any person shall make a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or shall survey, or shall attempt to survey, such lauds, or designate any of the boundaries by marking trees or otherwise, such offender shall forfeit and pay the sum of one thousand dollars,” etc. On the one hand, it is contended that the claim to. the penalty is sufficiently set up by the allegations that the lands belong to Indians and are secured to them by patent from the United States; while on the other hand it is contended that such claim is not sufficiently set up within the terms of the statute, unless it be alleged that such lands “belong to an Indian tribe by treaty with the United States,” or “are secured to such tribe by treaty with the United States.” The rules of interpretation require that the penal provisions of a statute be interpreted strictly according to its context, from wdiich we are to infer immediately the intention of the legislature, and to the exclusion of any inference whatever suggested by extraneous circumstances. This section inflicts the penalty of forfeiture of the sum of one thousand dollars, for the offense of making a settlement “ on lands belonging to any Indian tribe,” “secured to any Indian tribe,” “or granted” “to any Indian tribe;” and here it is necessary to ascertain if the qualifying phrase “ by treaty with the United States,” should be limited to lands “ granted,” or should be used likewise as a qualification of “ belonging” and “ secured.” It should be considered a settled rule that where several conditions are set out disjunctively, the qualifying phrase annexed to the last-mentioned condition belongs equally to, or is descriptive of, each one of the antecedent conditions that has not annexed to itself a qualifying phrase, and when the application of such qualifying phrase would not render the condition legally inoperative.
Under this rule of construction, it is obvious that, according to the terms of this section, no forfeiture accrues unless it is made apparent that the defendant has violated one or more of its conditions qualified by the phrase “ by treaty with the United States.” The plaintiffs were certainly aware of tlie necessity of using some qualifying term in connection with the word or condition “secured,” as tliey in their petition say “and secured to the said pueblo tribe of Indians, of the pueblo of Taos, aforesaid, by patent from the United States,” because, if their argumentative hypothesis as to the construction of disjunctive conditions with a qualifying phrase annexed to the one last mentioned had governed them in drafting their petition, they would not have used it in connection with the word or condition “ secured,” which, in the text of the section under consideration, is practically as far from the qualifying phrase, and also from the words “to any Indian tribe,” as the word “ belonging.”
The plaintiffs allege in their petition, that the lands claimed to have been settled upon by defendant, in violation of this section, were “ secured to the said pueblo tribe of Indians, of the pueblo of Taos aforesaid, by patent,from the United States.” The text of the section under which this suit is claimed to have been brought uses the phrase “ by treaty with the United States,” and not “by patent from the United States;” and therefore, as there is such a wide difference between the meaning of the words “ treaty” and “patent,” that the one can not be used in, the same sense as the other, none of the offenses or acts set out in this section can be said to be charged in the petition, even if the section were construed and interpreted as liberally as the rules of interpretation allow.
Congress, in legislating, at that time, on the subject of trade and intercourse with the Indian tribes, did so in pursuance of the clause of section 8, of article I of the constitution, which gives congress power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It is to be inferred that the framers of the constitution, when they granted this power, contemplated only the wild tribes which subsisted at that time within the territorial jurisdiction of the United States, and immediately adjacent to their borders. It can not be said that the framers of that instrument contemplated any other than the tribes of wild Indians, because there were none of any other kind known to them, and statesmen of that day had enough to occupy their minds in taking care of the territory which had separated from the mother country, to entirely preclude any idea of the expansiveness inaugurated with the annexation of Texas. The forfeiture or penalty prescribed in the eleventh section of the act of June 30, 1834, is not for the benefit of the Indian tribe whose rights may be violated as therein specified, but its provisions are solely for the preservation of the government’s paramount ownership of the soil, and to prevent any person whomsoever from interfering between itself and the Indian tribes in acquiring from them the possessory right which the Indians had hitherto. The Indian policy of the government is extensively discussed in The Cherokee Nation v. Georgia, 5 Pet. 1; in Worcester v. Georgia, 6 Id. 515; in Mitchel v. United States, 9 Id. 711; in Clark v. Smith, 13 Id. 195, and in other cases.
By section 7 of the act of congress approved February 27, 1851, entitled “ An act making appropriations for the current and contingent expenses of the Indian department,” etc., the laws regulating trade and intercourse with the Indian tribes are extended in these words: “All the laws now in force regulating trade and intercourse with the Indian tribes or such provisions of the same as may be applicable shall be, and the same are hereby extended over the Indian tribes in the territories of New Mexico and Utah.” No other significance can be given to this section than that which it expresses in such very unambiguous language. Thus congress extended not over the territories of New Mexico and Utah, but over the Indian tribes in these territories, the laws iu force on the twenty-seventh of February, 1851, regulating trade and intercourse with the Indian tribes; and as congress has made no change or modification of the eleventh section of the act of June 30, 1834, we certainly have no right to construe it as applicable to any other cases or circumstances than such as it was applicable to on the thirtieth of June, 1834.
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By Court,
JOHNSON, J.:'
The question here raised is as to the “ ability” (as it is termed by the statutes of this territory in relation to practice in our district courts), i. e., the right of the plaintiffs to bring and maintain this action. In order to determine this question, it is necessary to consider not only whether the plaintiffs have properly set up their claim to the penalty prescribed in tbe eleventh section of the act of June 30, 1834, 4 U. S. Stats. at Large, 730, against the defendant for settling on any of tbe lauds contemplated by the statute at the time of its enactment, but also whether the provisions of this section have been extended by congress to lauds owned by inhabitants of the territory known as pueblo Indians. The eleventh section above cited says: “If any person shall make a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or shall survey, or shall attempt to survey, such lauds, or designate any of the boundaries by marking trees or otherwise, such offender shall forfeit and pay the sum of one thousand dollars,” etc. On the one hand, it is contended that the claim to. the penalty is sufficiently set up by the allegations that the lands belong to Indians and are secured to them by patent from the United States; while on the other hand it is contended that such claim is not sufficiently set up within the terms of the statute, unless it be alleged that such lands “belong to an Indian tribe by treaty with the United States,” or “are secured to such tribe by treaty with the United States.” The rules of interpretation require that the penal provisions of a statute be interpreted strictly according to its context, from wdiich we are to infer immediately the intention of the legislature, and to the exclusion of any inference whatever suggested by extraneous circumstances. This section inflicts the penalty of forfeiture of the sum of one thousand dollars, for the offense of making a settlement “ on lands belonging to any Indian tribe,” “secured to any Indian tribe,” “or granted” “to any Indian tribe;” and here it is necessary to ascertain if the qualifying phrase “ by treaty with the United States,” should be limited to lands “ granted,” or should be used likewise as a qualification of “ belonging” and “ secured.” It should be considered a settled rule that where several conditions are set out disjunctively, the qualifying phrase annexed to the last-mentioned condition belongs equally to, or is descriptive of, each one of the antecedent conditions that has not annexed to itself a qualifying phrase, and when the application of such qualifying phrase would not render the condition legally inoperative.
Under this rule of construction, it is obvious that, according to the terms of this section, no forfeiture accrues unless it is made apparent that the defendant has violated one or more of its conditions qualified by the phrase “ by treaty with the United States.” The plaintiffs were certainly aware of tlie necessity of using some qualifying term in connection with the word or condition “secured,” as tliey in their petition say “and secured to the said pueblo tribe of Indians, of the pueblo of Taos, aforesaid, by patent from the United States,” because, if their argumentative hypothesis as to the construction of disjunctive conditions with a qualifying phrase annexed to the one last mentioned had governed them in drafting their petition, they would not have used it in connection with the word or condition “ secured,” which, in the text of the section under consideration, is practically as far from the qualifying phrase, and also from the words “to any Indian tribe,” as the word “ belonging.”
The plaintiffs allege in their petition, that the lands claimed to have been settled upon by defendant, in violation of this section, were “ secured to the said pueblo tribe of Indians, of the pueblo of Taos aforesaid, by patent,from the United States.” The text of the section under which this suit is claimed to have been brought uses the phrase “ by treaty with the United States,” and not “by patent from the United States;” and therefore, as there is such a wide difference between the meaning of the words “ treaty” and “patent,” that the one can not be used in, the same sense as the other, none of the offenses or acts set out in this section can be said to be charged in the petition, even if the section were construed and interpreted as liberally as the rules of interpretation allow.
Congress, in legislating, at that time, on the subject of trade and intercourse with the Indian tribes, did so in pursuance of the clause of section 8, of article I of the constitution, which gives congress power “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It is to be inferred that the framers of the constitution, when they granted this power, contemplated only the wild tribes which subsisted at that time within the territorial jurisdiction of the United States, and immediately adjacent to their borders. It can not be said that the framers of that instrument contemplated any other than the tribes of wild Indians, because there were none of any other kind known to them, and statesmen of that day had enough to occupy their minds in taking care of the territory which had separated from the mother country, to entirely preclude any idea of the expansiveness inaugurated with the annexation of Texas. The forfeiture or penalty prescribed in the eleventh section of the act of June 30, 1834, is not for the benefit of the Indian tribe whose rights may be violated as therein specified, but its provisions are solely for the preservation of the government’s paramount ownership of the soil, and to prevent any person whomsoever from interfering between itself and the Indian tribes in acquiring from them the possessory right which the Indians had hitherto. The Indian policy of the government is extensively discussed in The Cherokee Nation v. Georgia, 5 Pet. 1; in Worcester v. Georgia, 6 Id. 515; in Mitchel v. United States, 9 Id. 711; in Clark v. Smith, 13 Id. 195, and in other cases.
By section 7 of the act of congress approved February 27, 1851, entitled “ An act making appropriations for the current and contingent expenses of the Indian department,” etc., the laws regulating trade and intercourse with the Indian tribes are extended in these words: “All the laws now in force regulating trade and intercourse with the Indian tribes or such provisions of the same as may be applicable shall be, and the same are hereby extended over the Indian tribes in the territories of New Mexico and Utah.” No other significance can be given to this section than that which it expresses in such very unambiguous language. Thus congress extended not over the territories of New Mexico and Utah, but over the Indian tribes in these territories, the laws iu force on the twenty-seventh of February, 1851, regulating trade and intercourse with the Indian tribes; and as congress has made no change or modification of the eleventh section of the act of June 30, 1834, we certainly have no right to construe it as applicable to any other cases or circumstances than such as it was applicable to on the thirtieth of June, 1834.
Those inhabitants of this territory, commonly known as the pueblo Indians, were transferred with this territory by Mexico to tbe United States by the treaty of Guadalupe Hidalgo, February 2, 1848, and, according to the terms of that treaty, have the same relations to the United States which they had to the republic of Mexico, both as regards their persons and property, at the time of the treaty. These relations can only be modified, regulated, or changed by congress in accordance with the terms of this treaty. Articles 8 and 9 of this treaty contain the guaranties entered into by the United States as to persons and property transferred by Mexico to the jurisdiction of the former, and by them are secured to all such persons the same rights of property as are enjoyed by all citizens of the United States, and to such persons as should not elect within the time specified in the treaty to retain the character of Mexican citizens admission “to the enjoyment of all the rights of citizens of the United States according to the principles of the constitution.” According to the decree dated at Iguala, February 24, 1821, section 12, these pueblo Indians were made citizens of New Spain, which afterwards became the republic of Mexico. This section reads thus: “Todos los habitantes de la Nueva España, sin distinción alguna de Europeos, Africanos ni Indios, son ciudadanos de esta monarquía, con opcion á todo empleo según su mérito y virtudes;” which is translated: “ All the inhabitants of New Spain, without any distinction of Europeans, Africans or Indians, are citizens of this monarchy, with eligibility to every office, according to their merits and virtues.” It might cursorily seem that the wild Indians are included in the term “Indians,” in this section; but such is not the fact, as by the usage of Mexicans the term habitantes is limited to persons having a place of abode, and does not embrace vagrants or nomads. The pueblo Indians, however, had places of abode, and, consequently, came within this section, and Avere made citizens by it. The thirteenth section of the same decree says: “Las personas de todo ciudadanos y sus propiedades serán respetadas y protegidas por el gobierno,” Avhich is in English: “The persons and property of every citizen shall be respected and protected by the government.” These quotations are from Galvani’s collection of decrees, etc., of the Mexican nation, and others of like effect may be made from the same work. The term propiedades in Mexican law means property of all kinds, real, personal, and mixed. The quotations above made show that the pueblo people, or town Indians, were considered citizens, and that as to persons and properties there was no distinction made on account of origin, race, or caste, and the'same work shows that when the Mexican nation changed their monarchy of New Spain into the republic of Mexico, the status of these citizens with regard to persons and property was affirmed, and I have not been able to ascertain from any source whatever, and it has not been shown here in argument, that their status was changed prior to the date of the treaty of Guadalupe Hidalgo.
We come now to consider the only legislation by our congress in relation to the lands of the pueblo of Taos, and other pueblos within the territory. This is contained in the act of December 22, 1858, entitled “ An act to confirm the land claims of certain pueblos and towns in the territory of New Mexico:” 11 U. S. Stats. at Large, 374, from which is here only quoted what is necessary to show its bearing upon the lands of the pueblo of Taos: “The pueblo land claims in the territory of New Mexico designated in the corrected list as * * * 1. The pueblo of Taos, in the county of Taos * * * reported upon favorably by the surveyor-general of New Mexico in his report of the thirteenth of September, 1856, to the department of the interior * * * be, and they are hereby confirmed, and the commissioner of the land office shall issue the necessary instructions for the survey of all said claims, as recommended for confirmation by said surveyor-general, and shall cause a patent to issue therefor, as in ordinary cases to private individuals; provided, that this confirmation shall only be construed as a relinquishment of all title and claim of the United States to any of said lands, and shall not affect any adverse valid rights, should such exist.”
It is observable in the above-quoted act, the claimants to the lands of the pueblo of Taos, and of other pueblos mentioned, are not designated as Indians. However, inasmuch as the United States -have by this act quitclaimed the lands mentioned therein to the Taos and other pueblos, and say that it “ shall not affect any adverse valid rights, should such exist,” it seems to me that the contest as to the validity of adverse claims should be between the confirmees and the adverse claimants alone.
In this opinion several points were discussed merely because they have been argued by counsel of both parties in this court, although I doubt that they were properly brought before the court below. The fact that the plaintiff’s petition shows no right of action is of itself sufficient reason for affirming the judgment of the court below.
Judgment affirmed in the United States supreme court. See 94 U. S. (4 Otto) 619.