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 reservations 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 Attorneys General of California have advocated this view.Flushman & Barbieri, 1986, at 428 ("The dealings of the United States with the California Indians has extinguished aboriginal title in California."); id. at 458 ("The inherent deficiency of with any future aboriginal title claim in California is that California Indians, unlike the Indians of the eastern United States, are able to point only to the acts of the United States as the reason they have been dispossessed.").

History

Spanish rule

Spain established twenty-one missions, indigenous peoples (the so-called Mission Indians) lived and worked under the supervision of missionaries.Flushman & Barbieri, 1986, at 398. However, approximately 80% of the approximately 100,000 to 300,000 indigenous population of California remained outside the Missions.Flushman & Barbieri, 1986, at 397–98. Spanish law fully recognized the customary title of indigenous peoples.Felix S. Cohen, Spanish Origin of Indian Rights in the Law of the United States, 31 1 (1942). See also Byrne v. Alas, 16 P. 523, 524 (Cal. 1888) ("[T]he contrast between the policy of the Spanish and Mexican governments towards their aborigines, and that manifested in some of the English colonies during contemporaneous reigns, is quite marked.") Spanish-era land grants are referred to as the Ranchos of California.

Mexican rule Mexico declared independence from Spain in 1824. Mexico secularized the Mission system, and granted some of these tribes their land in fee simple.

U.S. territory

Mexico ceded California to the US in 1848 pursuant to the Treaty of Guadalupe Hidalgo. 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.Treaty of Guadalupe Hidalgo, , , (1850). Articles Nine and Ten guaranteed the property rights of Mexican nationals. The United States established procedures to review the validity of such land grants.Flushman & Barbieri, 1986, at 399.

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.Flushman & Barbieri, 1986, at 400–01.

Statehood

The eighteen unratified treaties California was admitted as a U.S. state on September 9, 1850.California Act of Admission, 9 Stat. 452 (1850). The admission act made no reference to Native American land rights.Flushman & Barbieri, 1986, at 401. 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.Cong. Globe, 31st Cong., 1st Sess. 1792 (1850). On September 30, 1850, Congress passed an amended version of Fremont's bill appropriating $25,000 and authorizing the President to appoint three commissioners, O. M. Wozencraft, Redick McKee and George W. Barbour, to negotiate treaties with the tribes of California.9 Stat. 544, 558. By January 1852, eighteen treaties had been negotiated, representing about one-third of the tribes and bands in the state.Flushman & Barbieri, 1986, at 403. 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.Flushman & Barbieri, 1986, at 404–05. 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.Flushman & Barbieri, 1986, at 405–06.

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, also known as the California genocide, reduced their population to 17,000.Flushman & Barbieri, 1986, at 406.

The Land Claims Act

On March 3, 1851, Congress enacted the California Land Act of 1851, sometimes known as 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 Public Land Commission within two years.9 Stat. 631. 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.9 Stat. 631, 633 ("[A]ll land the claims to which have been finally rejected by the commissioners in manner herein provided, or which shall be finally decided to be invalid by the district or supreme court, and all lands the claims to which shall not have been presented to the commissioners within two years after the date of this act, shall be deemed held, and considered as a part of the public domain of the United States . . . ."). 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."10 Stat. 244, 246. That act also authorized the President to create five military reservations in California for Indian purposes.Flushman & Barbieri, 1986, at 407 n.115.

The effect of these acts on aboriginal title in California has been a subject of litigation for 150 years.Flushman & Barbieri, 1986, at 407–08. Regardless, the United States never again pursued treaty negotiations with California Indians, instead favoring legislation and executive orders.Flushman & Barbieri, 1986, at 408. By statute, Congress created several Indian reservations.See, e.g., Act of July 5, 1862, 12 Stat. 512, 530; Act of March 3, 1855, 10 Stat. 698, 699; Act of March 3, 1853, 10 Stat. 226, 238. Congress gave the executive the discretion to create further reservations.Act of April 8, 1864, 13 Stat. 39, 40. By 1986, Presidents had used this discretion to create 117 reservations totaling .Flushman & Barbieri, 1986, at 409.

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.1927 Cal. Stat. 1092. The next year, Congress passed a statute granting that court jurisdiction for such claims.Act of May 18, 1928, 45 Stat. 602 (codified at 25 U.S.C. § 651 et seq.). 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.Indians of Cal. v. United States, 98 Ct. Cl. 583 (1942), cert. denied, 319 U.S. 764 (1943). Warren negotiated a $5M settlement.120 Ct. Cl. 837 (1944); see 59 Stat. 77, 94 (codified at 25 U.S.C. § 558–61). 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.Pub. L. No. 88-635, 78 Stat. 1023 (1946) (codified at 25 U.S.C. § 660).

Effect of the Land Claims Act of 1851

Early California Supreme Court decisions The earliest cases heard by the Supreme Court under the Land Claims Act involved non-Indians.Thompson v. L.A. Farming & Milling Co., 180 U.S. 72 (1901); Botiller v. Dominguez, 130 U.S. 238 (1889); Beard v. Federy, 70 U.S. (3 Wall.) 478 (1865); Peralta v. United States, 70 U.S. (3 Wall.) 434 (1865); United States v. Auguisola, 68 U.S. (1 Wall.) 352 (1863); United States v. Castillero, 64 U.S. (23 How.) 464 (1859); United States v. Osio, 64 U.S. (23 How.) 273 (1859); United States v. Fossatt, 62 U.S. (21 How.) 445 (1859); Fremont v. United States, 58 U.S. (17 How.) 542 (1855); United States v. Ritchie, 58 U.S. (17 How.) 525 (1854). 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 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."Thompson v. Doaksum, 10 P. 199, 202 (Cal. 1886).

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.Byrne v. Alas, 16 P. 523, 528 (Cal. 1888) ("The lands claimed by these defendants are within, the boundaries of a Mexican grant confirmed by the board of land commissioners to Estudillo, it is true, but, as we have seen, this confirmation relieved the defendants of the necessity of presenting their claims, and conclusively adjudicated the fact that the lands were private property, and no portion of the public domain.").

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."16 P. at 524. 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."16 P. at 528.

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.Barker v. Harvey, 181 U.S. 481 (1901). The appeal to the Supreme Court was brought by the federal government in its trustee capacity.United States v. Title Ins. & Trust Co., 265 U.S. 472, 483 (1924) ("In the right of the Indians the United States then brought [Barker] here, and took charge of and presented it for them."). Justice Brewer, for a unanimous Court (White recused), affirmed.