Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California
A few people emailed and texted me about this opinion and suggested I write something about it. So I’ve sketched out below some initial thoughts on certain of the court’s statements concerning the laws applicable to Indian lands and aboriginal title in California generally—which reflect and perpetuate legal and historical misunderstandings that permeate federal Indian law in California—and regarding the history of the Tejon Ranch and the Tejon Reservation (the lands at issue in the case, hereinafter “Tejon” for convenience). I’m not commenting here on the merits of the plaintiffs’ claims or the lawyering (I haven’t read the briefs or the district court’s opinion). And I didn’t intend to write something this long. But I felt like I needed to provide enough detail to support my points (there are some footnotes, mostly citing historical sources, that aren’t included in this post due to technological limitations), while hopefully not getting bogged down in the particulars of the statutes and cases addressing aboriginal title in California or the histories of the military reservations established here in the 1850s and 1860s. My apologies for where I fall short in that regard or otherwise, including where things may be oversimplified.
The court notes (slip op. at 10) that the lands at issue were the subject of four different Mexican land grants that were confirmed by a commission established under an 1851 law to determine the validity of Mexican (and Spanish) land grants: the Act to Ascertain and Settle the Private Land Claims in the State of California. Pub. L. No. 31-41, 9 Stat. 631 (1851) (emphasis added). (The court calls it the California Land Claims Act of 1851, or simply the Act of 1851, conveniently omitting and ignoring the “Private Land Claims” language in the law’s title.) As the court explains (slip op. at 12; see also at 5), this 1851 Act required that “each and every person claiming lands by virtue of any right derived from the Spanish or Mexican government” (my emphasis) to present that claim to the commission by March 3, 1853, when lands for which grants were not confirmed would go into the public domain. And the court, reinforcing a jurisprudential misunderstanding dating back to the late nineteenth century, stated that “the Tribe’s failure to present a claim to the Commission pursuant to the [1851 Act] extinguished its title” (slip op. at 12), because “the Act . . . fully extinguished any existing aboriginal title or unregistered land grants” (slip op. at 16).
But the 1851 Act’s requirement applied only to the private land claims of individual Spanish and Mexican land grantees (whose rights derived from Spain and Mexico, and who would present their grants to the commission), evidenced by the law’s title. Though courts (including this one) have suggested otherwise, it did not apply to Indians with aboriginal rights which—as the court here acknowledges (slip op. n.12)—do not derive from the Spanish or Mexican government. Those rights preexist(ed) the Spanish and Mexican governments, both of which recognized aboriginal title in their law generally as well as in (conditions stated expressly in) land grants issued to their citizens, including at least one at issue in this case.
To the extent it addressed Indian land title, the 1851 Act—in a provision the court doesn’t mention—placed a duty on the commissioners “to ascertain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied or cultivated by Pueblos or Rancheros Indians.” 9 Stat. at 364. This provision covered (at least some of) the villages at Tejon, where contemporaneous accounts describe Indians tending farms and fields. But the commissioners failed to carry out their duty; there is no record of any such report ever being made (regarding any Indian lands in California), nor of any investigation of Indian land tenure at Tejon. See H.R. Subcomm. of the Cmte. on Indian Affairs, Indian Tribes of California, 66th Cong. 117 (Mar. 23, 1920) (statement of Charles E. Kelsey, Special Agent for California Indians).
The 1851 Act did not require Indians with aboriginal title rights to go before the commissioners to preserve those rights; it required the commissioners to go out, investigate, and report on Indians’ land rights (which they did not do). Congress didn’t intend the 1851 Act to effect any extinguishment of aboriginal title. Congress passed the law after studying report it commissioned which explained that Spanish and Mexican law clearly recognizing the rights of Indians on the mission and rancho lands for which the private grants were issued. See Senate Exec. Doc. 31-18 at 32-33 (Jan. 30, 1851) (Report of William Carey Jones). That’s why Congress included the provision requiring the commissioners to report on Indian land tenure. Congress was trying to extinguish aboriginal title in California through the negotiation of treaties.
In September 1850, Congress passed legislation authorizing the negotiation of treaties with California Indians. Between March 1851 (the same month the 1851 Act was passed) and January 1852, U.S. treaty commissioners negotiated 18 treaties in California, including Treaty D, which the court says was “executed in 1851 by the Kawaiisu [and other Indians] and the United States” (slip op. at 15), and which (would have) set aside at least some of the land at issue as a reservation. The court states that the negotiation of this treaty—and presumably the seventeen other treaties the Senate rejected in a closed session in 1852 and ordered sealed in a vault in the Senate basement (where they remained until they were made public in 1905)—“was also insufficient for the purposes of the Act of 1851’s requirement that any parties claiming title to land in California under Spanish or Mexican grants present their claims to the Commission” by March 1853 (slip op. at 15-16), as the 1851 Act “provides for no alternative to presenting one’s claims to the Commission.” (slip op. at 15).
But why would Indians asserting (a claim based on) aboriginal title need to go before a commission to confirm title to certain lands—lest that title be extinguished, under the court’s theory—when the federal government was at the same time negotiating a treaty to set aside those lands as a reservation (and extinguish title to ceded lands)? No court has ever answered, or attempted to answer, this question. And this court fails to do so even while noting in adjacent sentences (slip op. at 5) that “[n]o Indian groups, including the predecessors to the Kawaiisu, registered claims with the Commission during the two-year period” (between 1851 and 1853), and that the United States negotiated “eighteen treaties . . . with California tribes between 1851 and 1852.” No Indian groups filed claims because there was no requirement they do so—that supposed requirement is something courts made up in a line of cases I don’t have the time or space to address here (but which are analyzed in my UCLA master’s thesis).
Thus the court not only misreads the 1851 Act (by suggesting that Indians had a duty to present aboriginal title claims to the commission); it also fails to understand the act’s relationship to (the legislation authorizing) the treaties being negotiated with California Indians at the same time these tribes were supposed to have presented claims before the commission. The negotiation of these treaties, together with a proper understanding of the history surrounding, the language of, and the provisions in the 1851 Act, indicates that courts are wrong to suggest that the 1851 Act—and the fact tribes did not present aboriginal title claims to a commission they were never told about (my guess is that people(s) would have tried to file claims had they been informed or aware of a need to do so), but who had a statutory duty (which they failed to perform) to report on Indian land tenure at places within the boundaries of the same private land grants they were reviewing and confirming—somehow extinguished aboriginal title in California.
Subsequent Congressional actions and Supreme Court case law also indicate that Congress did not intend the 1851 Act to, and that the Act did not, extinguish aboriginal title in California. Perhaps most significantly, the statute passed in March 1853 to transfer lands to which private titles weren’t confirmed (by the commission) into the public domain expressly carved out lands occupied or possessed by Indian tribes. Pub. L. No. 32-145, 10 Stat. 244, 246-47 (1853). The 1891 Mission Indian Relief Act authorized the U.S. attorney general to represent Indians in litigation to protect their rights to villages and lands included within the boundaries of Mexican land grants. 26 Stat. 712, 713 (1891). And the Supreme Court held in 1923 that aboriginal title still existed on a parcel of land in Siskiyou County (not included within the boundaries of a Spanish or Mexican land grant, and for which no claim was presented to the commission), explaining that the 1851 Act did not require Indians to present aboriginal rights claims to the commission because such claims do not derive from the Spanish or Mexican government. Cramer v. United States, 261 U.S. 219, 231 (1923).
If Congress intended aboriginal title to be extinguished through the 1851 Act, why did Congress acknowledge that title—and prohibit settlement on Indian lands—in the 1853 Act? If aboriginal title rights were extinguished through the 1851 Act, what rights were left for Congress to protect in the 1853 Act and the 1891 Mission Indian Relief Act? And how, if aboriginal title in California was extinguished in 1853 (at the end of the two-year period set forth in the 1851 Act), could it have existed in 1923?
It is disappointing to see a court once again avoid these questions, especially since this is the only case I can think of (at least right now) where the relationship between the 1851 Act and one of the 18 unratified treaties—and the paradox of aboriginal title being extinguished by legislation that was passed to settle private land claims (and did not apply to Indian tribes’ aboriginal title claims), that required the commission determining those private land claims to investigate on Indian land tenure at places like Tejon (which they didn’t do), and that was passed during the time the United States was negotiating treaties with California tribes to extinguish Indian title in the State—was (or should have been) squarely before the court. But it’s not surprising. Other courts, including those cited by this panel, have ignored these questions and failed to reconcile the 1851 Act (and the argument it extinguished aboriginal title because Indians did not present aboriginal title claims to a commission that was supposed to report on their land rights) with the treaties, or to reconcile the provisions of the 1851 Act with each other, those in the 1853 Act, or those in the 1891 Mission Indian Relief Act. (The closest the Ninth Circuit came was in United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976), a case involving the Pit River Tribe’s aboriginal title where the court noted that “[t]he contention that the [Tribe’s] Indian title was not extinguished by the 1851 Act finds some support” in Supreme Court precedent and the 1853 Act limiting settlement on lands occupied or possessed by Indian tribes, but then found that “a series of federal actions subsequent to 1851” extinguished title. Id. at 1148-49).
And thus the idea that the 1851 Act extinguished aboriginal title in California gets reinforced, as it is in this opinion, without critical analysis. That’s the aboriginal title (and treaties) part of my commentary. The opinion’s discussion of the history of Indian reservations in California in the years following the rejection of the 18 treaties, and the Tejon Reservation (also known as the Sebastian Military Reserve) specifically, is also lacking.
The court states that “[d]uring the period [after 1853 or 1855 and] prior to 1864, the President appears to have only officially created three reservations in California” (slip op. at 8, mentioning the Klamath River, Mendocino, and Smith River reservations) and that “no Presidential proclamation or executive order was ever issued regarding the Tejon or Sebastian Reservation” (slip op. at 9; see also at 19), implying there was never a federal Indian reservation at Tejon. But various readily available historical sources—including one the court cites regarding the rejection of the 18 treaties—are clear that the Tejon (or Sebastian) Reservation existed from 1853 until 1864, and that there were other federal (military) reservations, or farms, in California besides those at Klamath River, Mendocino, and Smith River mentioned by the court. George Harwood Phillips, a professor emeritus of history at the University of Colorado (and former member of the history department at UCLA) who has authored several books and articles on California Indian history, published a book in 2004 specifically on the history of the Tejon Reservation titled “Bringing Them Under Subjection”: California’s Tejón Indian Reservation and Beyond, 1852-1864.
The opinion (slip op. at 10) also states, without citing any authority, that “[t]he President . . . established four reservations by executive order” under legislation passed in 1864 to reorganize the Indian affairs bureaucracy in California (13 Stat. 39, ch. 40, 48 (Apr. 8, 1864)), and that “[t]he Tejon/Sebastian Reservation was not among them.” This statement reflects a misunderstanding of the history surrounding and following the 1864 Act and the establishment of executive order reservations in California. And it ignores that the Tejon Reservation was abandoned as a federal reservation in 1864 (though Indians continued to live there) as part of the restructuring of the Indian affairs administration in California that was taking place (13 Stat. 39, ch. 40, 48 (Apr. 8, 1864)), itself a product of (among other things) corruption on the part of government officials who lived on and oversaw the reservations. Those officials included Edward Beale, the Superintendent of Indian Affairs for California who founded and lived on the Tejon Reservation—and who between 1855 and 1866 acquired title to the (former) reservation and surrounding lands, which are the lands at issue in this case. (See slip op. at 10).
It’s unfortunate to see these historical omissions and legal misunderstandings reinforced on any level, and more so in another opinion issued by the Ninth Circuit (given its reputation for more thorough and sophisticated analysis) that perpetuates the falsehood that aboriginal title was somehow extinguished through the 1851 Act and sows further confusion regarding the history of Indian lands in California.