
    A. C. DE BACA ET AL. v. THE UNITED STATES AND THE NAVAJO INDIANS.
    [Indian depredations, 3814, 3815.
    Decided May 20, 1901.]
    
      On the defendants Motion.
    
    The deceased claimant is born a Mexican citizen, on Mexican territory. At the time of the treaty of Guadalupe Hidalgo he is living in that part of Mexico lying on the east side of the Rio Grande, it being part of the Mexican department of New Mexico. The question involved is whether that part of New Mexico was legally a part of Texas; and the claimant consequently a citizen of Texas, and therefore of the United States.
    I.A person born a citizen of Mexico, living on the east side of the Rio Grande, in New Mexico, at the time of the treaty of Guadalupe Hidalgo, was a citizen of Mexico, and he can not maintain an action for an Indian depredation which occurred prior to his becoming a citizen of the United States in the manner provided by the treaty.
    II.The Republic of Texas could not acquire territory by merely fixing its boundary by statute if the territory was in the actual posses- - sion of Mexico.
    III.By the treaty with Texas of 1836 the United States did not recognize a boundary between Texas and Mexico. All that the treaty did was to establish a boundary between Texas and the United States, and concede that if Texas, then at war, should conquer territory then held by Mexico, the Rio Grande should be the future boundary between Texas and the United States.
    
      IV.By the Joint Resolution for annexing Texas, 1st March, 1845 ( 5 Stat. L., p. 797), Congress recognized the principle that Texas could not cede what it did not possess. The Joint Resolution admitting Texas to the Union, 29th December, 1845 (9 Stat. L., 108), designates no boundary. The Act to extend the laws of the United States over Texas, 29th December, 1845 (ib., p. 1), is also silent as to boundaries.
    V.The declaration of the United States, after annexation, that the western boundary of Texas was the Bio -Grande did not necessarily extend beyond that portion of Texas which was actually inhabited and possessed by Americans, and which had been “properly included within and rightfully belonging to the Republic of Texas, and by virtue of these terms ceded to the United States.”
    
    VI.The establishment of a post route from Independence to Santa Fe, by the Act 3d March, 1847 (9 id, pp. 188,194), was not a legislative recognition of Santa Fe as being within the State of Texas and thereby a part of the United States.
    VII.The §10,000,000 paid to Texas under the Act 9th May, 1850 (9 id., p. 446), was in consideration of all territory claimed by the State, and must be regarded as money paid to <juiet title, and to acquire a quitclaim from Texas of territory in New Mexico to which Texas asserted a title. The statute does not recognize any portion of New Mexico as having been “rightfully” a xsart of Texas.
    
      The Reporters’ statement of the case:
    This case was submitted originally without argument and decided in favor of the claimants. The defendants now move for a new trial on the jurisdictional question of the deceased claimant’s citizenship at the time when the depredation was committed. The facts, undisputed, will be found in the opinion of the court.
    
      Mr. Stanhope Ilenry (with whom was Mr. Assistant Attorney- General Thompson) for the motion:
    The question involved in this case is, At what time and by virtue of what international agreement did Antonio Sandoval become a citizen of the United States?
    His place of residence previous to the extension of the intercourse act by the United States, February 27,1851, over New Mexico is a question of fact well established as bearing upon the Sandoval grant in New Mexico east of the .Rio Grande. His political status before and after this time must be discovered in the light of historical revelations and be determined according to the accepted rules of international law obtaining in such cases.
    
      All histoiy points to the fact that the department of New Mexico east and west of the Rio Grande, from 1822 to August 18,1848 (which latter date was eight months after the Republic of Texas had ceased to exist), remained loyal to the mother country, old Mexico.
    The people of Texas established a republican form of government in 1836, but never had their independence acknowledged by old Mexico, the mother country. The territory and sovereignity embraced in this young republic extended over only such area as the domination of old Mexico had been ousted from. (See Opinions of Attorneys-General, vol. 9, pp. 142, 143; Poole v. Fleeger, p. 397, Cortis, vol. 12, 11 Peters; Opinions of Secretary of State Jefferson, March 18, 1792, 7 Jefferson’s Works, p. 572; Wheaton’s Elements of International Law, 6th ed., pt. 1, ch. 2, par. 10, p. 35; Hall’s International Law, 4th ed., p. 106, pt. 2, ch. 2, par. 30.)
    All history shows that the Republic of Texas during its existence as such, from 1836 to December 29, 1845, when annexed to the United States, or at no time previous thereto, had ousted the dominion of old Mexico further than just west of San Antonio, nor had she been able to take possession of people, engross, occupy, or control a vast stretch of domain startingwhere her jurisdiction ended, just west of San Antonio, and extending to and separating her from the province or department of New Mexico. Therefore it is that the principles of international law do not uphold her in her arrogance and unfounded assertion of claim to this section and area, and much less so to the department or provinceo f New Mexico, 300 miles more remote from the Republic of Texas and a loyal integral part of old Mexico. (See Vattel’s Law of Nations, Chitty’s ed. of 1859, ch. 18, sec. 28, pp. 98, 99; also ch. 18, sec. 205, p. 98; also book 2, ch. 7, secs. 83, 84, pp. 164, 165.)
    History shows that every effort made by the Republic of Texas for the conquest of the department of New Mexico proved not only a failure but was simpty disastrous to the pretension of the Republic of Texas, owing to the determined resistance and defiance of New Mexico, east of the Rio Grande, on both sides of the Rio Grande, successfully exercising the right of self-preservation in such a manner as to demonstrate that all of New Mexico was a distinct body politic from the Republic of Texas and so intended to remain. (See Wheaton’s Elements of International Law, 6th ed., pt. 2, ch. 1, par. 2, pp. 85, 86.)
    All accepted history shows that previous to the treaty of Guadalupe Hidalgo, New Mexico east of the Rio Grande contained the center of population and the seat of government of this department or province of New Mexico; that the governors and civil officers were appointed, remained loyal to old Mexico, and as such were sustained by the people whom they were sent to govern; that the Republic of Texas never had a court of law, a taxgatherer, a governor, civil or military, an election for State officers, or any army stationed in New Mexico east or west of the Rio Grande that for one day was able to disturb the unbroken dominion of old Mexico there since 1822.
    Thus it was that the dominion, of old Mexico over the department of New Mexico was an actuality before and during all the time the Republic of Texas had its existence, and remained dominant there eight months after the Republic of Texas had ceased to exist; hence extended to everything in the province or department of New Mexico. International law speaks plainly as to what her rights were there under the circumstances. (See Yattel’s International Law, Chitty’s ed., 1849, ch. 7, sec. 80, p. 164.)
    The fact that the map prepared by the General Land Office of the United States in 1898 sets out that New Mexico east of the Rio Gi’ande River was a part of the Republic of Texas incorporated into the Union of the United States by the annexation of Texas does not estop a United States attorney from arguing historical facts in this case showing the contrary to be true, in the absence of any provision in the joint resolution for the annexation of Texas, March 1,1845 (5 Stat. L., Y97), or of any other express unequivocal legislation on the part of the United States after annexation specifying, limiting, defining, or bounding the territory which claimant claims was acquired by the annexation of Texas. All that this joint resolution said was that 11 the territory properly included withi/n and rightfully belonging to the Republic of Texas may be erected unto a nexo State to be called the State of Texas.” This resolution and the following one of December 29 1845 (9 Stat. L., 108), and all subsequent acts of Congress bearing upon-this important subject, are silent as to the existing limits and bounds of the “ territory properly included withim, and rightfully belonging to the Republic of Texas.”
    
    Hence Congress avoided violating the principle of international law which should obtain in this case, and never declared that the Republic of Texas could cede or had ceded what she never possessed. The treaty of Guadalupe Hidalgo' determined that the dominion of the United States along the border of old Mexico should be after May 30, 1848, as follows:
    “The boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence westwardly along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence northward along the western line of New Mexico until it intersects the first bránch of the River Gila (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California to the Pacific Ocean.” (U. S. Stat. L., p. 962.)
    This treaty could determine and did determine nothing as to what the domain of the Republic of Texas was between March, 1836, and December 29,1845. It was an international agreement had as between the United States and old Mexico more than two years after the Republic of Texas had ceased to exist, and it can not be construed to mean as conceding to that Republic something that the Republic of Texas during its existence could never get the mother country, old Mexico,. to concede by any treaty agreement that was ever had between them.
    The act of the Congress of the Republic of Texas of December 18, 1836, declaring the Rio del Norte River to be its western bourdary, only bound the chief executive of the Republic not to treat for a less boundary with the mother country, old Mexico, and in the absence of any treaty ever had with old Mexico is no more or less than an expression of a young republic’s aspirations, never realized. (See Select Pamphlets, vol. 45, National Congressional Library; The Law of Nations, by Albert Gallatin.)
    When the United States paid Texas 110,000,000 in 1850, it was not for anything more or less than her assertion of claim to New Mexico east of the Rio Grande, and this was done to quiet a controversy regarding the domain already a part of the United States, acquired by conquest of New Mexico, eight months after the Republic of Texas had ceased to exist.
    The United States has through her judiciary recognized the •authority of old Mexico over New Mexico previous to August 18, 1846, at a time .when the Republic of Texas was in being. (See Ifaxwell Land Grant Case, 121 U. S. R., p. 325; also see Las Animas Lamd Grant v. The United States, 179 U. S. R., p. 201.)
    What the legislative body of the United States intended paying this 110,000,000 to Texas for is an element of importance. It was then declared b}^ Congress, speaking through her influential members, that this money was paid as a settlement of a vexed question and not for the claim Texas asserted to this domain, constituting New Mexico east of the Rio Grande River. (See Thrall’s History of Texas, p. 362; also sea vol. 24, Congressional Globe, 33d Congress, 1st sess. remarks of Mr. Pierce, pp. 927, 928, 1473, 1576; remarks of Underwood, pp. 1195-1197,1198,1199 and 1200; also see vol. 24, Congressional Globe, pp. 1155-1157, 1117, 1578; also see 18th, 20th, 21st, and 22d Congressional Globe.)
    History shows that when the United States took possession of the department or province of New Mexico east and west of the Rio Grande River in 1846, she found the sovereignty of the Republic of old Mexico resident there, and the sovereigntj’’ of the Republic of Texas was not there then and never had been there.
    History also establishes as a fact that Antonio Sandoval lived within and was loyal to the Republic of old Mexico until the section in which he resided was conquered b3r the United States;' that the allegiance which he gave to old Mexico could not, according to international law and under the circumstances obtaining in this case, be construed to have been acquired by any power save the United States.
    Antonio Sandoval who was depredated upon by Indians, December 15, 1848, can not recover as against the United States because at that date it was only six months and fifteen days after the ratification of the treaty of Guadalupe Hidalgo, there being five months and sixteen days remaining of the year set apart for him to elect as to his citizenship. (See Demetrio-Vallejos v. United States, C. Cls. B., 35, p. 489.) Nor can he recover for his alleged loss of July 10, 1845, for although he was a citizen of the United States at that time, yet the intercourse act was not extended by Congress over New Mexico until February 27, 1851, more than eighteen months after the occurrence of the alleged depredation.
    Historical references in support of the defendants’ contentions are so numerous that defendants have not seen fit to insert them here. They will be found in their brief on motion for a new trial.
    
      Mr. JET. C. Burnett opposed.
    Claimant contends:
    
      First. (1) That Antonio Sandoval, late of Bernalillo County, N. Mex., and the claimant in this case, was born in Santa Fe, now within the Territory of New Mexico, in or about the year 1809, and that he died in the town of Barelas during the year 18 — , and that his residence during his life was at Santa Fe, and then afterwards at Barelas, and never resided at any other place.
    (2) That the towns of Santa Fe and Barelas are and always have been situated on the east side of the Bio Grande, and within the present Territory of New Mexico.
    
      Second. That all that portion of New Mexico on the east side of the Bio Grande was a part of the Texas Bepublic after March 2, 1836. The constitution of the Bepublic of Texas defined the boundaries of the same as follows:
    “ Beginning at the mouth of the Sabine Biver and running west along the Gulf of Mexico 3 leagues from land to the mouth of source;- thence due north to the 42nd degree of north latitude; thence along the boundary line, as defined in the treaty between the United States and Spain, to the beginning; and that the President be and hereby is authorized and required to open a negotiation with the Government of the United States of America, so soon as, in his opinion, the public interest requires it, to ascertain and define the boundary line as agreed upon in said treaty.” (1 Say les Early Laws of Texas, art. 251.)
    
    Treaty with Spain, 1819 (8 Stat. L., 254).
    Treaty with Mexico, 1828 (8 Stat. L., 374).
    Recognition by the United States Government, 1837. '(Messages vol. Ill, p. 237).
    Treaty with Republic of Texas, 1838 (8 Stat. L., 511).
    Survey made under the treaty of 1838 (Sen. Ex. Doc. 199, 27th Cong., 2d sess.).
    
      Ü. 8. v. Texas (143 U. S., R., 621); Cook v. Ü 8. (138 U. S., R., 157).
    
      Third. Boundaiy of Texas recognized by the act of Congress in the annexation of the State of Texas. (5 Stat. L., 797; 9 Stat. L., 108.)
    
      Fourth. That the settlement of the question of boundary between the Texas Republic and the Mexican Government was assumed by the United States Government in the act of March 7,18If (5 Stat. L. ,797), and which controversy resulted in the Mexican War and was determined in favor of the United States and as Texas had formerly contended, and the boundary was clearly defined in the treaty of 1848. (Sen. Ex. Doc. No. 60, 1st sess., 30th Cong.; Ex. Doc. 25., Yol. TU. 1st sess., 30th Cong.)
    
      Fifth. That immediately upon the annexation of Texas in 1845, and before the making of the treaty of Guadalupe Hidalgo, 1848, Congress extended all of the laws of the United States over the entire territory claimed by the Texas Republic. (9 Stat. L., 1.) That the whole of the State of Texas was made one judicial district. (9 Stat. L., 1.) That the whole of the State of Texas was made one collection district. (9 Stat. L., 2.) That a postal route was established from Independence, Mo., via Bents Fort, to the town of Santa Fe, N. Mex., March 23, 1847. (9 Stat. L., 194.)
    
      Sixth. That the State of Texas, December 13,1850 (9 Stat. L., 1005), transferred to the United States Government, for a valuable consideration, all of the territory now within New Mexico situated on the east side of the Rio Grande, part of Colorado, southern portion of Wyoming, southwestern corner of Kansas, and the strip known as “ No Man’s Land,” and that said act was a recognition of the prior ownership of the Texas Republic. (Cook v. U. S., 138 IT. S. R., 157.)
    
      Seventh. That this is a political question and the court is compelled to take judicial notice of and accept the contention of the United States Government, and that all of the acts of Congress and the Executive Department of the Government is conclusive upon this court.
    
      Eighth. That the United States Government recognized the independence of the Texas Republic in 1837, after the said Republic had declared the boundaries of her civil and political jurisdiction. That in said recognition the boundaries as claimed by the Texas Republic at the time is conclusive upon this court, and this court is compelled to take judicial knowledge of the boundaries as claimed bjr the Texas Republic and recognized by the political and executive departments of the United States, and of her laws with reference to citizenship.
    
      Ninth. That the Texas Republic, under her constitution, declared that all persons who resided within her defined limits at the time of the declaration of independence, March 2,1836, and the adoption of the constitution, March 17, 1836, are identified as citizens of the Texas Republic. (Hart. Dig., p. 35, 38; McKinney v. Seviego, 8 How., 235; Mcll/oaine v. Cox, 1 Cranch, 278; Boyle v. State of Nebraska, 143 U. S. R., 135; TI. S. v. Mitchie, 17 How., 525; Inglis v. Sailors’ Snug Harbor, 3 Pet., 99; Shanks v. Dupont, 8 Pet., 242.)
    
      Tenth. That all citizens of the Texas Republic became citizens of the United States upon the annexation of the State of Texas.
    
      Eleventh. That the intercourse law was extended over New Mexico by the act of Congress December 29, 1845, by which all of the laws of the United States were extended over the State of Texas. (9 Stat. L., 1.)
   Nott, Ch. J.,

delivered the opinion of the court:

The claimants concede that Antonio Sandoval, the deceased claimant, was born on Mexican territory, a citizen of Mexico. And it is established sufficiently for the purposes of this decision that after the revolution of Texas and up to the time of the treaty of Guadelupe Hidalgo the part of Mexico lying-on the east side of the Rio Grande was inhabited by persons acknowledging allegiance to Mexico and not to Texas; that the center of population and the seat of government of the department or province of blew Mexico were both on the east side of the river; that the governor and civil officers of the department were all Mexicans; that the State of Texas was never in possession, actual or constructive, of any part of the territory; that the State never had a court or a taxgatheror actually within the department; that there never was an election for State officers, and that there never was a representative from the department or any portion of it in the Texan’ legislature. The question then is, By what means and at what time did the deceased claimant become a citizen of Texas?

The first reason assigned for this is that the- constitution of Texas made all inhabitants citizens of the Republic, and that the act of the Texas legislature, 19th December, 1836, fixed the western boundary of the State at the Rio Grande. But it is manifest that the State could not acquire territory by statute, and that it had no more legal right to declare- a part of the Mexican province of New Mexico a part of Texas than it had' a right to make a part of the State of Louisiana a part of Texas.

The next reason assigned is that by the treaty between the United States and Texas in 1836 the United States recognized the territory of Texas as extending westward to the sources of the Rio Grande. But Texas was then at war with Mexico, endeavoring to acquire a part of the territory within the Mexican province of New Mexico. The United States did not undertake to arbitrate between Mexico and Texas. All that the treaty did was to establish a boundary line between the territory possessed by Texas and the territory possessed by the-United States, and to concede that if Texas should conquer this portion of Mexico the river should be the future boundary between Texas and the United States.

The next reason assigned is that the United States recognized-the territory claimed by Texas, and that the courts of the United States must follow the action of the political branches of the Government. But the joint resolution for annexing Texas, March 1,1845 (5 Stat. L., 797), does not sustain the reason. On the contrary, Congress seem to have carefully avoided doing so, and to have recognized the principle that Texas could not cede what it did not possess. All that the resolution says is “the territory properly inclmded within and rightfully belonging to the Republic of Texas may be erected into a new State to be called the State of Texas.” The question now presented to the court is whether this portion of New Mexico was, in 1845, territory properly included within and rightfully belonging to the Republic of Texas.” The joint resolution admitting the State to the Union, 29th December, 1845 (9 Stat. L., 108), reiterates the above language and designates no boundary. The act to extend the laws of the United States over the State of Texas, 29th December, 1845 (ib., p. 1), is equally silent as to boundaries.

The next reason assigned is that the United States asserted, after the annexation, that the Rio Grande, and not the Neuces, was the boundary of Texas, and declared war to maintain that right. But the intent of the United States did not necessarily extend beyond that portion of Texas which was then actually inhabited and possessed by Americans between the Neuces and the Rio Grande and which had been “properly included within and rightfully belonging to the Republic of Texas,” and, by virtue of those terms, ceded to the United States.

The next reason assigned is that by the Act 3d March, 181fl (9 Stat. L., 188, 194), a post route was established by Congress from a point within the United States (Independence, Mo.) to the town of Santa Fe, in New Mexico. - But New Mexico was then held by conquest, and had been for six months, ánd civil government had been established by the commanding officer of the United States, General Kearny, with the approval of the Secretary of War. It was necessary that the United States should have mail communication within the territory, which it then possessed by right of conquest, and this conquest was subsequently made permanent by the treaty of Guadalupe Hidalgo.

Moreover, the establishment of such a post route means nothing as a declaration that Santa Fe was in Texas, for the Act 3d M-rch, 1851 (9 Stat. L., 637, sec. 2), confers upon the Postmaster-General power 4 4 to make suitable arrangements for transporting through any foreign country the mails of the United States, running from and to any point in the United States.” In other words, it authorizes a post route through a foreign country.

The next reason assigned is that the United States by the Act 9th May, 1850 (9 Stat. L., 446), paid to Texas $10,000,000 in consideration of the cession of all territory claimed by the State. But at that time the United States had acquired title to all of New Mexico by virtue of its right of conquest and the affirmance thereof by the treaty with Mexico. The United States and Texas were, therefore, asserting adverse titles against each other. The fact that the United States paid money to quiet title and to acquire a quitclaim from the State of Texas of lands to which Texas asserted a title can not.possibly affect, directly or indirectly, the prior citizenship of a person living within the disputed territory. The statute concedes nothing and declares nothing which the judicial branch of the Government can recognize as in any way affecting the question now in controversey.

With regard to the claim for pi'operty seized and taken by the defendant Indians after the claimant had become a citizen of the United States the court expresses no opinion.

It is ordered by the court that the defendant’s motion for a new trial, filed June 19, 1900, be allowed and a new trial granted.  