Guest Post by Bill Wood: Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California (Revised)

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).

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Ninth Circuit Rejects Nonrecognized Kawaiisu Tribe’s Claim to Tejon Ranch

Here is the opinion in Robinson v. Jewell.

From the court’s summary:

The panel affirmed the district court’s dismissal of the claims of the Kawaiisu, a non-federally recognized Native American group, and its elected chairperson, David Laughing Horse Robinson, asserting title to the Tejon Ranch, one of the largest continuous expanses of private land in California.

The panel held that the district court properly determined that the Tribe had no ownership interest in the Tejon Ranch and that no reservation was established. Specifically, the panel held that the district court correctly concluded that the Tribe’s failure to present a claim to the Board of Commissioners created by the California Land Claims Act of 1851 extinguished its title; that the Treaty with the Utah did not convey land rights to the signatory tribes or recognize aboriginal title; and that Treaty D was never ratified and conveyed no rights. The panel rejected the Tribe’s complaints of alleged forgery and deception in obtaining patents for the four Mexican land grants comprising Tejon Ranch because all of the alleged acts occurred prior to the submission of the claims to the Board of Commissioners, and the Tribe could not challenge the validity of land patents after more than a century of time had passed.

The panel held that the claims against Kern County were subsumed into the Tejon Ranch ownership determination. The panel further held that the Tribe’s claims originally asserted against the Secretary of the United States Department of the Interior, and Robinson’s individual claims, were waived for failure to assert them on appeal. The panel
declined to consider the Tribe’s new arguments on appeal.

Briefs:

Robinson Opening Brief

Kern County Brief

Tejon Mountain Village Answer Brief

US Answer Brief

Robinson Reply

Lower court materials.