Title: Henry Stanbery to S. B. Elkins, 23 November 1867
Date: November 23, 1867
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00312
Contributors to digital file: Elizabeth Lorang, Nima Najafi Kianfar, Kevin McMullen, and John Schwaninger
November 23, 1867
S. B. Elkins, Esq.
United States Attorney for New Mexico,
Santa Fe, N. M.
Your several communications of the 4th June, 6th August and 18th October, respecting the Pueblo and Camanche Indians, of New Mexico, have been received and considered.
It appears that under the provisions of law regulating intercourse with the Indian tribes and particularly of those of the Act of 30th June, 1834, 4 Statutes, 729, et seq. you instituted suits on behalf of the United States. The suits were actions of debt upon statute, in conformity to Section 27 of said Act of Congress. Some of these suits were founded upon alleged unlawful intercourse with the Camanches; others, unlawful intercourse with, and depredation upon, the Pueblos. The defendants demurred, in the first-named cases, on the ground that the first section of said Act of 1834 defined the Indian Country, and does not include New Mexico. In the cases of the Pueblos, the demurrer was chiefly on the ground that by the Treaty between the United States and Mexico, the Pueblos are not Indians, but having been, as claimed, citizens of Mexico, are now citizens of the United States, and consequently not within the purview of the Indian intercourse laws. Both demurrers were sustained by the court. You have appealed a case of each class to the Supreme Court of the Territory, and you propose, in case the decision below be sustained, to carry the matter to the Supreme Court of the United States.
It is perceived that the effect of a final decision corresponding with those of the District Court of the Territory, as they are understood, would be to render all laws regulating trade and intercourse with Indians, inapplicable to the Territory of New Mexico, not only for the protection of the Pueblos, but for the restraint of the Camanches, notwithstanding the provisions of the Indian appropriation Act of 27 February, 1851, 9 Stats, 587, extending generally, laws regulating Indian intercourse to the Territory of New Mexico.
The questions this raised are believed to be sufficiently novel and important to warrant the course you propose to take. I advise that your action should, for the present, be confined to the particular suits which you have brought before the highest court of the Territory. Should the decision affirm the ruling below, you will take the proper steps for bringing up the respective cases for adjudication by the Supreme Court of the United States, and report your action to this office.
I am, respectfully,