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).