Having served as the last Chief Justice of the territorial Supreme Court and the first federal judge after New Mexico achieved statehood, William H. Pope has a unique place in New Mexico history.
By Mark B. Thompson
Having served as the last Chief Justice of the territorial Supreme Court and the first federal judge[1] after New Mexico achieved statehood, William H. Pope has a unique place in New Mexico history. Judge Pope may also be unique in that he twice, as an appellate and later as a trial judge, held that the U.S. Government could not prosecute a person for “introducing liquor” into the territory of a New Mexico Indian Pueblo.
William Hayes Pope was born June 14, 1870,[2] into a large Beaufort, South Carolina family headed by lawyer Joseph James Pope.[3] He received both a master of arts and a law degree from the University of Georgia and practiced in Atlanta before heading to New Mexico in 1894, apparently in an effort to find a climate more suited to his health condition.[4] He served in several posts, including special assistant U.S. Attorney for the New Mexico Pueblos and as a trial judge in the Philippines before being appointed Supreme Court Justice and judge of New Mexico’s Fifth District by President Roosevelt in 1903.[5] As part of the resignation of Governor Curry and appointment of Chief Justice William J. Mills as Governor, President Taft gave Judge Pope the additional job of Chief Justice in 1910.[6]
In 1907, Judge Pope authored the opinion of the court affirming a dismissal of a prosecution by the United States alleging the sale of “intoxicants” to members of the Taos Pueblo in violation of the Act of January 30, 1897. In a concise opinion, with what Judge Pope himself later characterized as “adequate reasoning,” the court held that the members of Taos Pueblo did not come within any of the three classes of Indians described in the statute.[7] The government did not appeal the decision to the U.S. Supreme Court and Congress did not immediately amend the 1897 statute. But then, in the “Enabling Act” of 1910, Congress provided that, as a condition of statehood, New Mexico must agree to prohibit the introduction of liquor into Indian country, “which term shall also include all lands now owned or occupied by the Pueblo Indians . . . .”[8]
William H. Pope was again favored by President Taft, (the two had become friends in the Philippines), by appointment as the new federal judge in New Mexico following the signing of the statehood bill in January of 1912.[9] But the nomination hit a roadblock which, in the light of his career, now appears somewhat ironic. This was the man who cleared the Territorial Supreme Court docket in his first year as Chief Justice[10] and who was once complimented by his fellow justices for his swift but sure justice in presiding at a murder trial in 1906.[11] Pope was accused by ten lawyers, including the president of the Chaves County Bar Association, of sitting on submitted cases in his district.[12] His opinion in the Mares case notwithstanding, The Roswell Record said he was also opposed by the “saloon element,” perhaps because he was known to favor prohibition.[13] None of this was deemed sufficient to prevent his confirmation,[14] and Judge Pope was sworn in at the U.S. Supreme Court in late February, 1912.[15]
The fourteenth case on the docket of the United States District Court for the District of New Mexico was the prosecution of Felipe Sandoval for “introducing liquor” into Santa Clara Pueblo. Judge Pope dismissed the indictment with a verbose opinion that may reveal his belief that this time the government would surely take the case to the U.S. Supreme Court.[16] He quoted at length from cases he believed supported his view that the Pueblo Indians were just regular citizens. Although the State of New Mexico was not a party to the prosecution, he held that Congress could not constitutionally require New Mexico to prohibit the introduction of liquor into the Pueblos. Because nothing else had changed since the Mares case, he had to dismiss the indictment.
In some respects the U. S. Supreme Court took the bait and itself issued a lengthy opinion in reversing Judge Pope.[17] As the court was to later summarize,[18] the narrow question was whether or not Congress had reasonably brought the Pueblos under the prohibition of the 1897 law, in this instance by merely providing such in an “unrelated” act of Congress. Although the court in Sandoval said it was deferring to the expertise of Congress, it had to indicate why Congress had not acted arbitrarily in including the Pueblos as “dependent” peoples. The court even used Judge Pope’s former job as special counsel to the Pueblos, though not mentioning him by name, as evidence that Congress had consistently treated the Pueblos as dependent.
By 1915, Judge Pope’s poor health apparently was beginning to have some effect on his work load. What could have been his “trial of the century” was the prosecution of lawyer Elfego Baca (and others) for conspiracy involving the escape from federal custody in Albuquerque by the Mexican General, Jose Ines Salazar. The case was tried in Santa Fe in December 1915, with Judge John C. Pollock of the District of Kansas presiding.[19] By February of 1916 it was common knowledge that Judge Pollock was helping out because of Judge Pope’s illness.[20] Judge Pope died September 13, 1916, in Atlanta, survived only by his bride of 11 years.[21] His widow, the former May Hull of Atlanta, survived him by forty years, apparently living most of that time with various siblings in Washington, D.C.,[22] rejoining Judge Pope for burial in the Fairview Cemetery on Cerrillos Road in Santa Fe.
This article was prepared as part of the participation by the Historical Committee of the State Bar in the One Hundredth anniversary of the groundbreaking for the federal building at 4th and Gold in Albuquerque. Historical Committee Member Judge John Pope of Los Lunas says he has no known relationship to William Pope. Lawyer Art Bova of Albuquerque, through his grandfather Jenkins M. Pope, is a first cousin, twice removed, of Judge William Hayes Pope.
[1] That is, an “Article III Judge” within the meaning of the U.S. Constitution. Territorial judges appointed by the President of the United States under section 10 of the Organic Act, September 9, 1850, were “legislative” judges with four year terms. See also, McAllister v. United States, 141 U.S. 174 (1891).
[2] Harold Chase, Biographical Dictionary of the Federal Judiciary (Detroit: Gale Research Press, 1976), p. 223.
[3] J.J. Pope household, 1870 U.S. census, Beaufort County, South Carolina, population schedule, Beaufort township, page 20, dwelling 218, family 295; National Archives micropublication M593, roll 1485.
[4] See generally, James K. Logan, ed., The Federal Courts of the Tenth Circuit: A History (Denver: Gov. Printing Office, 1992), pp. 258-59.
[5] “Judge William H. Pope of Santa Fe Selected By President Roosevelt for Supreme Bench of New Mexico,” The Albuquerque Morning Journal, October 8, 1903, p. 1.
[6] “Judge Pope to Be Chief Justice Monday,” The Albuquerque Morning Journal, Sunday, February 27, 1910, p. 5. Territorial judges held both trial and appellate positions and Judge Pope remained resident in Roswell as the local district judge. See, New Mexico Legislative Manual (“Blue Book”), Santa Fe, 1911, p. 101.
[7] United States v. Mares, 14 N.M. 1 (1907).
[8] Act of June 20, 1910, § 309.
[9] “Pope’s Early Nomination is Assured,” The Roswell Record, January 19, 1912, p. 3. The Record’s optimism was not shared by the Journal, however, which reported two days later that Attorney General Frank P. Clancy had the inside track. “Federal Judgeship May Be Given Clancy,” The Albuquerque Morning Journal, January 21, 1912, p. 1. The next day, President Taft sent Pope’s nomination to the Senate. “Judge Pope Appointed Federal Judge For New Mexico,” The Roswell Record, January 23, 1912, p. 1.
[10] See e.g., Arie Poldervart, Black-Robed Justice in New Mexico,1846-1912, N.M. HIST. REV., vol. 23, p. 229 (1948).
[11] Territory v. Price, 14 N.M. 262, 268-69 (1907). The murder took place on a train on March 30 and by April 13, Price had been indicted, tried by a jury and found guilty.
[12] “Pope’s Supporters Not Worried Over Affairs,” The Roswell Record, February 6, 1912, p. 1. The opponents submitted a digest of 16 cases which allegedly showed Pope’s dilatory habits. In addition, they submitted several affidavits of citizens of Roswell stating that Judge Pope had a reputation of being biased in favor of certain lawyers.
[13] “Judge Pope Lands Plum,” The Roswell Record, January 19, 1912, p. 7. At his death, he was described as an “uncompromising fighter” for prohibition. “Judge W.H. Pope is Dead; End Came in Atlanta, Ga.,” Santa Fe New Mexican, September 13, 1916, p. 1. The Prohibition Amendment to the Constitution was ultimately adopted in 1919.
[14] “Senate Committee Recommends the Confirmation of Judge Pope,” The Roswell Record, February 20, 1912, p. 1.
[15] “Judge Pope Sworn in As Federal Judge,” The Albuquerque Morning Journal, February 24, 1912, p. 1.
[16] United States v. Sandoval, 198 Fed. 539 (D.N.M. 1912).
[17] United States v. Sandoval, 231 U.S. 28 (1913).
[18] Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 242 (1985). This opinion has a summary of the entire history of the status of the Pueblos, at least as seen by the U.S. Supreme Court.
[19] “All Defendants in Conspiracy Case Freed By Jury’s Verdict,” The Albuquerque Morning Journal, December 19, 1915, p. 1. See generally, Ralph H. Vigil, Revolution and Confusion: The Peculiar Case of Jose Ines Salazar, N.M. Hist. Rev., Vol., 53, pp. 145, et seq., (1978).
[20] “Nearly 50 Attorneys at Banquet Given to Judge John C. Pollock,” The Albuquerque Morning Journal, February 27, 1916, p.4.
[21] “Federal Judge W.H. Pope Dies at His Former Home, Atlanta,” The Albuquerque Morning Journal, September 14, 1916, p. 1.
[22] Harry Hull household, 1920 U.S. census, Washington, District of Columbia, population schedule, enumeration district [ED] 268, supervisor’s district [SD] 40, sheet 9B, dwelling 62, family 279; National Archives micropublication T625, roll 212.
Reprinted with permission from the State Bar of New Mexico. No further replication or reproduction is permitted without the written consent of the State Bar of New Mexico. www.nmbar.org
Chief Justice; territorial period; supreme court