Aboriginal title in California
Encyclopedia
Aboriginal title in California refers to the aboriginal title
land rights of the indigenous peoples of California
. The state is unique in that no Native American tribe in California is the counterparty
to a ratified federal treaty. Therefore, all the Indian reservation
s in the state were created by federal statute or executive order.
California has experienced less possessory land claim litigation than other states. This is primarily the result of the Land Claims Act of 1851 (following the Treaty of Guadalupe Hidalgo
) that required all claims deriving from the Spanish and Mexican governments to be filed within two years. Three U.S. Supreme Court decisions and one Ninth Circuit ruling have held that the Land Claims Act applied to aboriginal title, and thus extinguished all aboriginal title in the state (as no tribes filed claims under the Act). Two Deputy Attorney Generals of California have advocated this view.
) lived and worked under the supervision of missionaries
. However, approximately 80% of the approximately 100,000 to 300,000 indigenous population of California
remained outside the Missions. Spanish law fully recognized the customary title of indigenous peoples. Spanish-era land grants are referred to as the Ranchos of California
.
.
. Under Article Eight of that treaty, the United States agreed to respect the hundreds of land grants, many quite substantial, granted by the Spanish and Mexican governments to private landowners. Articles Nine and Ten guaranteed the property rights of Mexican nationals. The United States established procedures to review the validity of such land grants.
That same year gold was discovered in California
, rapidly accelerating migration to California. Reports commissioned by the federal government during this period uniformly downplayed the extent of indigenous land rights under Spanish and Mexican rule.
California was admitted as a U.S. state
on September 9, 1850. The admission act made no reference to Native American land rights. On their second day in office as California's first Senators, John Fremont and William M. Gwin
introduced bills to extinguish all aboriginal title in California. On September 30, 1850, Congress passed an amended version of Fremont's bill appropriating $25,000 and authorizing the President to appoint three commissioners to negotiate treaties with the tribes of California. By January 1852, eighteen treaties had been negotiated, representing about one-third of the tribes and bands in the state. The state legislature strongly opposed the Indian reservation
policy pursued by the treaty and lobbied the federal government to instead remove the Indians from the state entirely
. Because Fremont and Gwin represented the key swing votes between the Whig
and Democratic parties, none of the treaties were ever ratified and all were classified.
Federal agents had already persuaded nearly all of the Indians to remove to their would-be reservations while the treaties were pending; soon, "starvation, disease, and murder" reduced their population
to 17,000.
The Land Claims Act
On March 3, 1851, Congress enacted the Land Claims Act, requiring "each and every person claiming lands in California by virtue of any right or title derived by the Mexican government" to file their claim with a three-member Board of Land Commissioners within two years. The Commissioners were to issue patents to the claims they found meritorious and the other lands were to pass into the public domain
at the end of the two years. Two years later, Congress passed an act to survey those lands that had passed into the public domain under the first statute, but exempted "land in the occupation or possession of any Indian tribe." That act also authorized the President to create five military reservations in California for Indian purposes.
The effect of these acts on aboriginal title in California has been a subject of litigation for 150 years. Regardless, the United States never again pursued treaty negotiations with California Indians, instead favoring legislation and executive orders. By statute, Congress created several Indian reservations. Congress gave the executive the discretion to create further reservations. By 1986, Presidents had used this discretion to create 117 reservations totalling 632,000 acres.
Claims Court litigation
In 1927, the California legislature passed a statute authorizing the California Attorney General
to bring claims on behalf of the tribes in the Court of Claims
. The next year, Congress passed a statute granting that court jurisdiction for such claims. California Attorney General Earl Warren
(future Chief Justice) finally argued the case in 1941. The court found liability but indicated it would not award pre-judgment interest, and the Supreme Court declined to grant certiorari
. Warren negotiated a $5M settlement. After the passage of the Indian Claims Commission
Act, the same group of tribes struggled to bring a single action for recovery under the broader claims allowed under the ICCA, which settled for $29M.
judgment for the plaintiff, holding: "If defendants [Indians belonging to the Big Meadows tribe] had any right to the land, it should have been asserted in the land department pending the application for patent, or by direct proceeding on the part of the government to set aside the patent."
Two years later, Byrne v. Alas (1888), the court distinguished its holding by reversing a quiet title judgment against a group of Mission Indians
. Byrne, in distinguishing Doaksum, held that the fact of a third party validating title to certain lands was conclusive of the fact that those lands were not in the public domain, and thus, that the aboriginal title was not extinguished.
There, the Mission Indians did not claim fee simple by any Mexican grant, but rather "by virtue of their possession, and the continuous, open, and exclusive use and occupancy by their predecessors and ancestors ever since the year 1815." Further, the court interpreted the language in the Land Claims Act requiring the Commissioner to investigate the status of indigenous tenure as evidence that "Congress did not intend that the rights of the Indians should be cut off by a failure on their part to present their claims."
Barker has two independent holdings. First, the Court reaffirmed its holding from Botiller v. Dominguez
(1889) that even perfect title was subject to the requirements of the Land Claims Act. Barker rejected in part the reasoning of the California Supreme Court from Byrne, noting: "Surely a claimant would have little reason for presenting to the land commission his claim to land, and securing a confirmation of that claim, if the only result was to transfer the naked fee to him, burdened by an Indian right of permanent occupancy." Thus, Barker has since been cited by the Court as the source of the rule that the Land Claims Act itself extinguished aboriginal title.
Second, the Court held that the plaintiff's title had been extinguished before the Mexican Cession
. To determine this, the Court examined and quoted extensively the specific text of the plaintiff's grants. From this, the Court concluded that the aboriginal title had long been extinguished by abandonment:
considerations of stare decisis
in declining the government's request to overrule Barker:
) to the construction of federal hydroelectric dams in California. The plaintiffs, members of the Karuk
and Peh-tsick tribes, alleged both that the dams would violate their aboriginal title rights and their rights under the Treaty of Guadalupe Hidalgo. The United States Court of Appeals for the District of Columbia held that both rights (if they existed) were extinguished by the 1851 statute. Unlike the plaintiffs in Barker, who were Mission Indians, the plaintiffs here were nomadic at the time of the relevant times.
In a one-sentence per curiam opinion, the Court affirmed the D.C. Circuit, citing Barker, Title Insurance, Lone Wolf v. Hitchcock
(1903), and Conley v. Ballinger (1910). The Karuk attempt to re-assert their claims decades later based upon the federal government's general trust relationship and other statutes were unsuccessful. Since Super, the Court has twice interpreted the Land Claims Act to also have imposed the requirement to file upon the state of California itself.
considered the trespass
and conversion
claims of Chumash tribe (joined by the federal government) over the ownership of the Channel Islands of California
(and the channel beds surrounding the Santa Cruz
and Santa Rosa
islands) in California. The Ninth Circuit held that, although the Chumash's aboriginal title survived the issuance of Mexican land grants to the same islands, the tribe's title was extinguished by its failure to file under the Land Claims Act.
First, the Ninth Circuit disagreed with the District Court's holding that Mexican land grants had extinguished the Chumash's title. Instead, the court applied the same standards to Mexican land grants as would have been applied to federal land grants: the grants were presumed to grant an interest subject to the tribe's aboriginal title. Next, the Ninth Circuit rejected the tribe's arguments that the islands were not within the land ceded by the Treaty of Guadalupe Hidalgo. Third, the court rejected the Chumash's argument that the Treaty converted the tribe's aboriginal title into recognized title.
Finally, the court reached the question of the Land Claims Act. The Ninth Circuit examined the rule of Barker, Title Insurance, and Super. As for Barker, the court conceded that "the precise basis for this holding is not clear." With respect to Title Insurance, the court noted that it is "not entirely clear in the opinion" that the case involved aboriginal title, but inferred such from subsequent interpretations of that decision.
The Chumash attempted to distinguish these cases by relying on Cramer v. United States (1923), the case that established the existence of "individual aboriginal title" (as opposed to tribal); Cramer, after all, had distinguished Barker. Thus, "[g]iven the line of Supreme Court decisions recognizing the extensive reach of the Act of 1851," the Ninth Circuit stated that Cramer could only avail those whose individual aboriginal title post-dated 1851. The court also rejected the Chumash's attempt to interpret the Act according to canons of international law
.
The Supreme Court denied certiorari
.
The Supreme Court considered six arguments by the railroad. First, it rejected the railroad's argument that the exceptions to the grant did not specifically mention Indians; instead, the court held that all land grants are presumed to be granted subject to aboriginal title.
Next, the Court considered the Act of 1851. The Court held that it was irrelevant:
Third, the Court rejected the argument that the federal government could not bring suit on behalf of the tribe. Fourth, the Court rejected the statute limiting the time in which the government could challenge the validity of its land patents, holding that did not apply to suits on behalf of Indians. Fifth, the Court rejected estoppel
: "Since these Indians with the implied consent of the government had acquired such rights of occupancy as entitled them to retain possession as against the defendants, no officer or agent of the government had authority to deal with the land upon any other theory." Finally, however, the Court reversed the Ninth Circuit's voiding of the entire patents, holding that only the portions possessed by the Indians should be void.
The holding in Cramer lay dormant for many years. Decade later, Justice Douglas dissented to the denial of certiorari
where the lower court had denied a California Indian defendant the ability to defend a criminal prosecution for illegal logging on the basis of individual aboriginal title as recognized in Cramer. The Court has since elaborated on the basis for its holding in Cramer:
However, the Ninth Circuit concluded that the federal policies in place at the time of Cramer had changed and thus:
Individual aboriginal title is a fact-specific and fact-intensive defense, which is difficult to raise as a criminal affirmative defense
, for which the defendant has the burden of proof.
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
land rights of the indigenous peoples of California
Indigenous peoples of California
The Indigenous peoples of California are the indigenous inhabitants who have lived or currently live in the geographic area within the current boundaries of California before and after the arrival of Europeans. With over one hundred federally recognized tribes, California has the largest Native...
. The state is unique in that no Native American tribe in California is the counterparty
Counterparty
A counterparty is a legal and financial term. It means a party to a contract. A counterparty is usually the entity with whom one negotiates on a given agreement, and the term can refer to either party or both, depending on context....
to a ratified federal treaty. Therefore, all the Indian reservation
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
s in the state were created by federal statute or executive order.
California has experienced less possessory land claim litigation than other states. This is primarily the result of the Land Claims Act of 1851 (following the Treaty of Guadalupe Hidalgo
Treaty of Guadalupe Hidalgo
The Treaty of Guadalupe Hidalgo is the peace treaty, largely dictated by the United States to the interim government of a militarily occupied Mexico City, that ended the Mexican-American War on February 2, 1848...
) that required all claims deriving from the Spanish and Mexican governments to be filed within two years. Three U.S. Supreme Court decisions and one Ninth Circuit ruling have held that the Land Claims Act applied to aboriginal title, and thus extinguished all aboriginal title in the state (as no tribes filed claims under the Act). Two Deputy Attorney Generals of California have advocated this view.
Spanish rule
Spain established twenty-one missions, indigenous peoples (the so-called Mission IndiansMission Indians
Mission Indians is a term for many Native California tribes, primarily living in coastal plains, adjacent inland valleys and mountains, and on the Channel Islands in central and southern California, United States. The tribes had established comparatively peaceful cultures varying from 250 to 8,000...
) lived and worked under the supervision of missionaries
Missionary
A missionary is a member of a religious group sent into an area to do evangelism or ministries of service, such as education, literacy, social justice, health care and economic development. The word "mission" originates from 1598 when the Jesuits sent members abroad, derived from the Latin...
. However, approximately 80% of the approximately 100,000 to 300,000 indigenous population of California
Population of Native California
Estimates of the Native Californian population have varied substantially, both with respect to California's pre-contact count and for changes during subsequent periods. Pre-contact estimates range from 133,000 to 705,000 with some recent scholars concluding that these estimates are low...
remained outside the Missions. Spanish law fully recognized the customary title of indigenous peoples. Spanish-era land grants are referred to as the Ranchos of California
Ranchos of California
The Spanish, and later the Méxican government encouraged settlement of territory now known as California by the establishment of large land grants called ranchos, from which the English ranch is derived. Devoted to raising cattle and sheep, the owners of the ranchos attempted to pattern themselves...
.
Mexican rule
Mexico declared independence from Spain in 1824. Mexico secularized the Mission system, and granted some of these tribes their land in fee simpleFee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
.
U.S. territory
Mexico ceded California to the US in 1848 pursuant to the Treaty of Guadalupe HidalgoTreaty of Guadalupe Hidalgo
The Treaty of Guadalupe Hidalgo is the peace treaty, largely dictated by the United States to the interim government of a militarily occupied Mexico City, that ended the Mexican-American War on February 2, 1848...
. Under Article Eight of that treaty, the United States agreed to respect the hundreds of land grants, many quite substantial, granted by the Spanish and Mexican governments to private landowners. Articles Nine and Ten guaranteed the property rights of Mexican nationals. The United States established procedures to review the validity of such land grants.
That same year gold was discovered in California
California Gold Rush
The California Gold Rush began on January 24, 1848, when gold was found by James W. Marshall at Sutter's Mill in Coloma, California. The first to hear confirmed information of the gold rush were the people in Oregon, the Sandwich Islands , and Latin America, who were the first to start flocking to...
, rapidly accelerating migration to California. Reports commissioned by the federal government during this period uniformly downplayed the extent of indigenous land rights under Spanish and Mexican rule.
Statehood
The eighteen unratified treatiesCalifornia was admitted as a U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
on September 9, 1850. The admission act made no reference to Native American land rights. On their second day in office as California's first Senators, John Fremont and William M. Gwin
William M. Gwin
William McKendree Gwin was an American medical doctor and politician.Born near Gallatin, Tennessee, his father, the Reverend James Gwin, was a pioneer Methodist minister under the Rev. William McKendree, his son's namesake. Rev. James Gwin also served as a soldier on the frontier under General...
introduced bills to extinguish all aboriginal title in California. On September 30, 1850, Congress passed an amended version of Fremont's bill appropriating $25,000 and authorizing the President to appoint three commissioners to negotiate treaties with the tribes of California. By January 1852, eighteen treaties had been negotiated, representing about one-third of the tribes and bands in the state. The state legislature strongly opposed the Indian reservation
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
policy pursued by the treaty and lobbied the federal government to instead remove the Indians from the state entirely
Indian Removal
Indian removal was a nineteenth century policy of the government of the United States to relocate Native American tribes living east of the Mississippi River to lands west of the river...
. Because Fremont and Gwin represented the key swing votes between the Whig
Whig Party (United States)
The Whig Party was a political party of the United States during the era of Jacksonian democracy. Considered integral to the Second Party System and operating from the early 1830s to the mid-1850s, the party was formed in opposition to the policies of President Andrew Jackson and his Democratic...
and Democratic parties, none of the treaties were ever ratified and all were classified.
Federal agents had already persuaded nearly all of the Indians to remove to their would-be reservations while the treaties were pending; soon, "starvation, disease, and murder" reduced their population
Population of Native California
Estimates of the Native Californian population have varied substantially, both with respect to California's pre-contact count and for changes during subsequent periods. Pre-contact estimates range from 133,000 to 705,000 with some recent scholars concluding that these estimates are low...
to 17,000.
The Land Claims Act
On March 3, 1851, Congress enacted the Land Claims Act, requiring "each and every person claiming lands in California by virtue of any right or title derived by the Mexican government" to file their claim with a three-member Board of Land Commissioners within two years. The Commissioners were to issue patents to the claims they found meritorious and the other lands were to pass into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
at the end of the two years. Two years later, Congress passed an act to survey those lands that had passed into the public domain under the first statute, but exempted "land in the occupation or possession of any Indian tribe." That act also authorized the President to create five military reservations in California for Indian purposes.
The effect of these acts on aboriginal title in California has been a subject of litigation for 150 years. Regardless, the United States never again pursued treaty negotiations with California Indians, instead favoring legislation and executive orders. By statute, Congress created several Indian reservations. Congress gave the executive the discretion to create further reservations. By 1986, Presidents had used this discretion to create 117 reservations totalling 632,000 acres.
In 1927, the California legislature passed a statute authorizing the California Attorney General
California Attorney General
The California Attorney General is the State Attorney General of California. The officer's duty is to ensure that "the laws of the state are uniformly and adequately enforced" The Attorney General carries out the responsibilities of the office through the California Department of Justice.The...
to bring claims on behalf of the tribes in the Court of Claims
Court of Claims
The Court of Claims in the United Kingdom is a special court established after the accession of a new Sovereign to judge the validity of the claims of persons to perform certain honorary services at the coronation of the new monarch....
. The next year, Congress passed a statute granting that court jurisdiction for such claims. California Attorney General Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
(future Chief Justice) finally argued the case in 1941. The court found liability but indicated it would not award pre-judgment interest, and the Supreme Court declined to grant certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. Warren negotiated a $5M settlement. After the passage of the Indian Claims Commission
Indian claims commission
The Indian Claims Commission was a judicial panel for relations between the United States Federal Government and Native American tribes. It was established in 1946 by the United States Congress to hear claims of Indian tribes against the United States...
Act, the same group of tribes struggled to bring a single action for recovery under the broader claims allowed under the ICCA, which settled for $29M.
Early California Supreme Court decisions
The earliest cases heard by the Supreme Court under the Land Claims Act involved non-Indians. Therefore, in Thompson v. Doaksum (1886), the California Supreme Court considered the application of the Act to Indians as a matter of first impression. The court upheld a quiet titleQuiet title
An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title....
judgment for the plaintiff, holding: "If defendants [Indians belonging to the Big Meadows tribe] had any right to the land, it should have been asserted in the land department pending the application for patent, or by direct proceeding on the part of the government to set aside the patent."
Two years later, Byrne v. Alas (1888), the court distinguished its holding by reversing a quiet title judgment against a group of Mission Indians
Mission Indians
Mission Indians is a term for many Native California tribes, primarily living in coastal plains, adjacent inland valleys and mountains, and on the Channel Islands in central and southern California, United States. The tribes had established comparatively peaceful cultures varying from 250 to 8,000...
. Byrne, in distinguishing Doaksum, held that the fact of a third party validating title to certain lands was conclusive of the fact that those lands were not in the public domain, and thus, that the aboriginal title was not extinguished.
There, the Mission Indians did not claim fee simple by any Mexican grant, but rather "by virtue of their possession, and the continuous, open, and exclusive use and occupancy by their predecessors and ancestors ever since the year 1815." Further, the court interpreted the language in the Land Claims Act requiring the Commissioner to investigate the status of indigenous tenure as evidence that "Congress did not intend that the rights of the Indians should be cut off by a failure on their part to present their claims."
Barker v. Harvey (1901)
In Barker v. Harvey (1901), the Supreme Court heard the consolidated appeals of a group of Mission Indians who had lost a quiet title action by several non-Indians. The appeal to the Supreme Court was brought by the federal government in its trustee capacity. Justice Brewer, for a unanimous Court (White recused), affirmed.Barker has two independent holdings. First, the Court reaffirmed its holding from Botiller v. Dominguez
Botiller v. Dominguez
Botiller v. Dominguez, 130 U.S. 238 , was a decision by the United States Supreme Court dealing with the validity of Spanish or Mexican land grants in the Mexican Cession, the region of the present day southwestern United States that was ceded to the U.S...
(1889) that even perfect title was subject to the requirements of the Land Claims Act. Barker rejected in part the reasoning of the California Supreme Court from Byrne, noting: "Surely a claimant would have little reason for presenting to the land commission his claim to land, and securing a confirmation of that claim, if the only result was to transfer the naked fee to him, burdened by an Indian right of permanent occupancy." Thus, Barker has since been cited by the Court as the source of the rule that the Land Claims Act itself extinguished aboriginal title.
Second, the Court held that the plaintiff's title had been extinguished before the Mexican Cession
Mexican Cession
The Mexican Cession of 1848 is a historical name in the United States for the region of the present day southwestern United States that Mexico ceded to the U.S...
. To determine this, the Court examined and quoted extensively the specific text of the plaintiff's grants. From this, the Court concluded that the aboriginal title had long been extinguished by abandonment:
It thus appears that prior to the cession the Mexican authorities, upon examination, found that the Indians had abandoned the land; that the only adverse claim was vested in the mission of San Diego and made an absolute grant, subject only to the condition of satisfying whatever claims the mission might have. How can it be said therefore that when the cession was made by Mexico to the United States there was a present recognition by the Mexican government of the occupancy of these Indians? On the contrary, so far as any official action is disclosed, it was distinctly to the contrary, and carried with it an affirmation that they had abandoned their occupancy, and that whatever of title there was outside of the Mexican nation was in the mission, and an absolute grant was made subject only to the rights of such mission.
United States v. Title Ins. & Trust Co. (1923)
More than two decades later, the Court reconsidered the meaning and propriety of its Barker decision in United States v. Title Ins. & Trust Co. (1923). There, the federal government sued on behalf of a group of Mission Indians holding a 1842 Mexican grant. The court cited the relianceReliance
-Companies:* Reliance Industries, an Indian conglomerate of companies headed by Mukesh Ambani** Reliance Petroleum** Reliance Life Sciences** Reliance Solar** Reliance Logistics** Reliance Industrial Infrastructure** Reliance Institute of Life Sciences...
considerations of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
in declining the government's request to overrule Barker:
The decision was given 23 years ago, and affected many tracts of land in California, particularly in the southern part of the state. In the meantime there has been a continuous growth and development in that section, land values have enhanced, and there have been many transfers. Naturally there has been reliance on the decision. The defendants in this case purchased 15 years after it was made. It has become a rule of property, and to disturb it now would be fraught with many injurious results. Besides, the government and the scattered Mission Indians have adjusted their situation to it in several instances.
Super v. Work (1926)
Super v. Work (1926) involved a challenge in the Supreme Court of the District of Columbia (now known as the United States District Court for the District of ColumbiaUnited States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
) to the construction of federal hydroelectric dams in California. The plaintiffs, members of the Karuk
Karuk
Karuk is an indigenous people of California in the United States.The tribal headquarters, located off State Route 96, is in the town of Happy Camp, California. Currently the tribe has three tribal board meeting places, in Yreka, Happy Camp, and Orleans...
and Peh-tsick tribes, alleged both that the dams would violate their aboriginal title rights and their rights under the Treaty of Guadalupe Hidalgo. The United States Court of Appeals for the District of Columbia held that both rights (if they existed) were extinguished by the 1851 statute. Unlike the plaintiffs in Barker, who were Mission Indians, the plaintiffs here were nomadic at the time of the relevant times.
In a one-sentence per curiam opinion, the Court affirmed the D.C. Circuit, citing Barker, Title Insurance, Lone Wolf v. Hitchcock
Lone Wolf v. Hitchcock
Lone Wolf v. Hitchcock, was a United States Supreme Court case brought against the US government by the Kiowa chief Lone Wolf, who charged that Native American tribes under the Medicine Lodge Treaty had been defrauded of land by Congressional actions in violation of the treaty.The Court declared...
(1903), and Conley v. Ballinger (1910). The Karuk attempt to re-assert their claims decades later based upon the federal government's general trust relationship and other statutes were unsuccessful. Since Super, the Court has twice interpreted the Land Claims Act to also have imposed the requirement to file upon the state of California itself.
United States ex rel. Chunie v. Ringrose (1986)
In United States ex rel. Chunie v. Ringrose (1986), the United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
considered the trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
and conversion
Conversion
-Economy and Finance:* Currency conversion or exchange rate* Conversion , one of the options strategies* Economic conversion-Law:* Conversion , conversion by taking a chattel out of the possession of another with the intent of exercising a permanent or temporary dominion over it, despite the...
claims of Chumash tribe (joined by the federal government) over the ownership of the Channel Islands of California
Channel Islands of California
The Channel Islands of California are a chain of eight islands located in the Pacific Ocean off the coast of Southern California along the Santa Barbara Channel in the United States of America...
(and the channel beds surrounding the Santa Cruz
Santa Cruz Island
Santa Cruz Island was the largest privately owned island off the continental United States, but is currently part-owned by the National Park service . The island, located off the coast of California, is long and from wide...
and Santa Rosa
Santa Rosa Island, California
Santa Rosa Island is the second largest of the Channel Islands of California at 53,195 acres . Defined by the United States Census Bureau as Block 3009, Block Group 3, Census Tract 29.10 of Santa Barbara County, California, the 2000 census showed an official population of 2 persons. It is part of...
islands) in California. The Ninth Circuit held that, although the Chumash's aboriginal title survived the issuance of Mexican land grants to the same islands, the tribe's title was extinguished by its failure to file under the Land Claims Act.
First, the Ninth Circuit disagreed with the District Court's holding that Mexican land grants had extinguished the Chumash's title. Instead, the court applied the same standards to Mexican land grants as would have been applied to federal land grants: the grants were presumed to grant an interest subject to the tribe's aboriginal title. Next, the Ninth Circuit rejected the tribe's arguments that the islands were not within the land ceded by the Treaty of Guadalupe Hidalgo. Third, the court rejected the Chumash's argument that the Treaty converted the tribe's aboriginal title into recognized title.
Finally, the court reached the question of the Land Claims Act. The Ninth Circuit examined the rule of Barker, Title Insurance, and Super. As for Barker, the court conceded that "the precise basis for this holding is not clear." With respect to Title Insurance, the court noted that it is "not entirely clear in the opinion" that the case involved aboriginal title, but inferred such from subsequent interpretations of that decision.
The Chumash attempted to distinguish these cases by relying on Cramer v. United States (1923), the case that established the existence of "individual aboriginal title" (as opposed to tribal); Cramer, after all, had distinguished Barker. Thus, "[g]iven the line of Supreme Court decisions recognizing the extensive reach of the Act of 1851," the Ninth Circuit stated that Cramer could only avail those whose individual aboriginal title post-dated 1851. The court also rejected the Chumash's attempt to interpret the Act according to canons of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
The Supreme Court denied certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
.
Cramer v. United States (1923)
Cramer v. United States (1923) involved would-be Indian reservations (as provided for in the aforementioned unratified treaties) that had subsequently been granted to railroads by the federal government. The United States District Court for the Northern District of California canceled the railroad's land patents based upon the actual use and occupation of the Indians since 1855. The Ninth Circuit agreed with the District Court, but cancelled the entirety of the patents at issue.The Supreme Court considered six arguments by the railroad. First, it rejected the railroad's argument that the exceptions to the grant did not specifically mention Indians; instead, the court held that all land grants are presumed to be granted subject to aboriginal title.
Next, the Court considered the Act of 1851. The Court held that it was irrelevant:
The act plainly has no application. The Indians here concerned do not belong to any of the classes described therein and their claims were in no way derived from the Spanish or Mexican governments. Moreover, it does not appear that these Indians were occupying the lands in question when the act was passed.
Third, the Court rejected the argument that the federal government could not bring suit on behalf of the tribe. Fourth, the Court rejected the statute limiting the time in which the government could challenge the validity of its land patents, holding that did not apply to suits on behalf of Indians. Fifth, the Court rejected estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
: "Since these Indians with the implied consent of the government had acquired such rights of occupancy as entitled them to retain possession as against the defendants, no officer or agent of the government had authority to deal with the land upon any other theory." Finally, however, the Court reversed the Ninth Circuit's voiding of the entire patents, holding that only the portions possessed by the Indians should be void.
The holding in Cramer lay dormant for many years. Decade later, Justice Douglas dissented to the denial of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
where the lower court had denied a California Indian defendant the ability to defend a criminal prosecution for illegal logging on the basis of individual aboriginal title as recognized in Cramer. The Court has since elaborated on the basis for its holding in Cramer:
This holding was based upon the well-understood governmental policy of encouraging the Indian to forego his wandering habits and adopt those of civilized life; and it was said that to hold that by so doing he acquired no possessory rights to the lands occupied, to which the government would accord protection, would be contrary to the whole spirit of the traditional American policy toward these dependent wards of the nation. The fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive.
United States v. Dann (1989)
United States v. Dann (1989) is the most in-depth consideration of individual aboriginal title since Cramer. There, although the relevant tribal aboriginal title had been extinguished, and an ordinance prohibited entry onto the federal lands in question, the Court found that the defendants could and did establish individual aboriginal title based on their use of the lands before the ordinance. The Ninth Circuit (in an appeal from Nevada, not California) held:[An individual] establish[es] aboriginal title in much the same manner that a tribe does. An individual might be able to show that his or her lineal ancestors held and occupied, as individuals, a particular tract of land, to the exclusion of all others, from time immemorial, and that this title had never been extinguished.
However, the Ninth Circuit concluded that the federal policies in place at the time of Cramer had changed and thus:
In short, an Indian cannot today gain a right of occupancy simply by occupying public land, as the Indians did in Cramer. Under current law, that occupancy could not be viewed as undertaken with the implied consent of the government, as was the occupancy in Cramer. We therefore conclude that any individual occupancy rights acquired by the Danns must have had their inception prior to November 26, 1934, the date that the lands in question were withdrawn from entry by Executive Order No. 6910.
Individual aboriginal title is a fact-specific and fact-intensive defense, which is difficult to raise as a criminal affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
, for which the defendant has the burden of proof.