TRIBES OF THE LOWER KLAMATH RIVER SYSTEM -
QUESTION OF TREATIES AND LAND TITLE
An Historic Perspective
on Indian Land Tenure Please
note, lands in
Column on the status of Lower and Mid Klamath tribal claims - (same as other ordinary "reserved rights," such as those of the National Forest.)
Vested private property rights - As stated in Chitty's Prerogatives of the Crown, page 132:
"It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges."
Barring specific reservation and subject to pre-established servitudes, a government land patent to an individual vests legal title and right to the located property to the extent it was held by the State or United States. It is considered in the nature of a compact and is an executed contract. It is a covenant that cannot be resumed, annulled or later modified by the grantor through legislation or otherwise. (A right vested, cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle, 8 Wheat. 1; Fletcher v. Peck, 6 Cranch 136 - 1810.)
In U S v. TITLE INSURANCE & TRUST CO., 265 U.S. 472 (1924,) the Court cited the case of Minnesota Co. v. National Co., 3 Wall. 332- 334, 18 L.Ed. 42 (1865) as ruling in matters of patented title:
'Where questions arise which affect titles to land, it is of great importance to the public that, when they are once decided, they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only; but where courts vacillate, and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective, and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change.'
In HYNES V. GRIMES PACKING CO. , 337 U.S. 86 (1949) the Court stated:
"An Indian reservation created by Executive Order of the President conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President. Such rights may be terminated by the unilateral action of the United States without legal liability for compensation in any form even though Congress has permitted suit on the claim. Sioux Tribe v. United States, 316 U.S. 317 ; see United States v. Santa Fe Pacific R. Co., 314 U.S. 339 , at page 347, 252. When a reservation is established by a treaty ratified by the Senate or a statute, the quality of the rights thereby secured to the occupants of the reservation depends upon the language or purpose of the congressional action. Since Congress, under the Constitution, 3 of Art. IV, has the power to dispose of [337 U.S. 86 , 104] the lands of the United States, it may convey to or recognize such rights in the Indians, even a title equal to fee simple, as in its judgment is just. Shoshone Indians v. United States, 324 U.S. 335 , 339, 340, 692, 693. When Congress intends to delegate power to turn over lands to the Indians permanently, one would expect to and doubtless would find definite indications of such a purpose."
The eighth article of the treaty of Guadalupe Hidalgo (9 Stat. 929) between the United States and Mexico ceding land to the United States stipulated: 'In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.'
Under the California Land Settlement Act of 1851, "each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government" was required to submit a claim to a three-person commission or tribunal. This commission investigated claims to land, and made a determination of their validity as respected the United States. Act of March 3, 1851, ch. XLI ' 8, 9 Stat.631.(See California Powder Works Co. v. Davis , 151 U.S. 389 (1894) This provision was interpreted to include Indian tribes. In 1900, the Supreme Court affirmed a California court's confirmation of title of non-Indian claimants against Mission Indians claiming a right of permanent occupancy to the same lands. In Barker v. Harvey, 181 U.S. 481 (1900), the Supreme Court indicated that the Indian right of occupancy should be considered as a "right or title derived from the...Mexican government" even though that right may have antedated the establishment of the Mexican government. The Indians' right of occupancy was deemed abandoned for failure to present it to the land claims commission. Twenty-four years later, the Supreme Court declined to overrule Barker because of the unsettling effect it would have upon property titles in California. United States v. Title Ins.& Trust Co., 265 U.S. 472, 486 (1924). See also Summa Corp. v. California Ex Rel. Lands Comm'n, 466 U.S. 198 (1984) As a consequence of Article VIII, some Mexican land grants to "pueblos" or Indian cities were recognized by the lands commission.
[See Kappler on Indian Land Tenure particularly " LIMITATIONS ON INDIAN RIGHT TO OCCUPANCY AND POSSESSION OF LANDS IN CERTAIN PARTS OF UNITED STATES." excerpts: Hayt v. United States, et al. (38 Court of Claims, 455-460-465) "...the King of Spain made no concessions respecting Indian titles in Mexico, but claimed the whole country for his own; that this claim by virtue of conquest was maintained until Mexico acquired its independence and that Government in turn never acknowledged the existence of aboriginal title. The significance of the proposition is that if the Indian title to occupancy was never recognized by Spain and Mexico the title acquired by the United States was obtained free of incumbrance by virtue of previous Indian occupancy." "...as for Mexico, neither the researches of counsel nor the investigation of the court disclose recognition of aboriginal title by that Government."] See also Tee-Hit-Ton Indians v. U.S., 348 U.S. 272 (1955)
In 1851, 18 treaties were signed with 400 California Indian leaders whereby millions of acres of land were ceded to the federal government in exchanged for perpetual use and occupancy to 8.5 million acres in reservation land, plus goods and services. According to the CA Water Plan DWR bulletin 106-05, in mid-March 1852, the California Assembly (35 to 6) and Senate (19 to 4) voted to submit resolutions opposing the ratification of the treaties to California’s U.S. Senators. The President submitted the treaties to the U.S. Senate on June 1, 1852. On June 7, the Senate read the President’s message, and referred the treaties to the Committee on Indian Affairs. The treaties were then considered and rejected by the U.S. Senate in secret session. The treaties did not reappear in the public record until January 18, 1905, after an injunction of secrecy was removed.
More on the 18 treaties, Report (1) (2) ; California Indians v. US (1941) 98 Ct. Cols, 583, and California Jurisdiction Act of May 18, 1928 Court awarded 7 cents an acre as compensation for the 8.5 million acres of land which was never set up as reservations under the 18 “lost treaties”. From this sum was deducted the cost of administration of the claims. Amount of Judgment: $17,053,941.98, Offsets: $12,029,099.64 (See Solicitor's opinion Mach 17, 1948.)
1851 Treaty made at Camp Klamath at the junction of the Trinity and Klamath Rivers with the Lower Klamath tribes (unratified); Treaty made on Oct. 6, 1851 in Scott's Valley, Shasta, County, Calif. between Redick McKee and the chiefs, captains and head men of the Upper klamath, Shasta and Scotts River tribes of Indians (unratified); Treaty made on October 6, 1851 at Camp Klamath at the Junction of the Klamath and Trinity Rivers between Redick McKee and the chiefs, captains and head men of the POH-IK or Lower Klamath tribes of Indians (unratified).
March 3, 1853 (10 Stat. 226, 238) Congress passed a bill to establish and fund five reservations in California for the protection of the Indians.March 3, 1855 (10 Stat. 686, 699) Congress passed another Indian funding bill that reduced each California reservation to only 25,000 acres and added 2 reservations. (Short v. United States, 486 F.2d 561, 562, 202 Ct.Cl. 870 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974).
Super et al. v. Work, Secretary of the Interior, et al..
No. 4110 Court of Appeals of District of Columbia 55 App. D.C 149; J F.2d 90; 1925 U.S.
App. LEXlS 3721 Submitted December 5, 1924 January 5, 1925, Decided
"The United States has accepted the fact that it long ago acquired the lands of the California Indians, extinguishing their Indian title. The Jurisdictional Act of May 18, 1928, 45 Stat. 602, authorized the attorney general of the state of California to bring suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .," any decree to be based upon the compensation proposed in certain ratified treaties of 1851-1852. Section 3 of that act provides: "Any payment which may have been made by the United States or moneys heretofor or hereafter expended . . . for the benefit of the Indians of California, made under specific appropriations for the support . . . of Indians of California, including purchases of land, . . . may be pleaded by way of set-off`."
"The Court of Claims decided October 5, 1942, that the California Indians were entitled to recover as compensation the sum of $10,648,625, for 8,518,900 acres taken, less $764,033.50 for lands "set aside by the United States for the plaintiff Indians as reservations and otherwise, by Executive Orders, Acts of Congress . . ." 98 C. Cls. 583, Cert. Den. 319 U.S. 764, 102 C. Cls. 837. The court held that whatever lands those Indians may have held "became a part of the public domain . . ." because the Indians did not qualify before the Commission set up by the Act of March 3, 1851 (9 Stat. 631) to settle private land claims in California. (p. 592) (According to an article by Professor Edward D. Castillo, $17,053,941.98 was offered in 1944 minus deductions for costs. There was a distribution to 36,000 eligible Indians in California in the amount of $150. This was in reimbursement for the unratified treaty lands promised to Indians.)
"It will be noted that this action in favor of the California Indian's is not a payment for money due the Indians, since the basis of the litigation and judgment is that these Indians lost their rights by reason of lathes. Nor did this involve all lands of the California Indians. The payment is in the nature of a gift, equitable because the United States Senate failed to ratify an agreement with the Indians concerning those particular lands. The claims of the California Indians, based upon aboriginal title, is now in process of litigation. This suit also is based upon acquisition of the Indians' lands by the United States."According to the Castillo article, the suit precipitated the creation of the federal Indian Claims Commission in 1946 for the purpose of seeking compensation for lost tribal lands. [Claimants had 12 years to file, after which suit was to be barred by the federal statute of limitations. Once claim was settled, according to a 1985 decision of the U.S. Suipreme Court reagrding the Shoshones, [ Northwestern Bands v. U.S. 324 U.S. 335 (1945),] further claims to regain possession are barred.] By August of 1951, twenty-three separate petitions had been filed by attorneys on behalf of tribes in California. These were consolidated and a settlement of $29,100,000 was offered. In 1964 the offer was accepted and in 1968, about $600 was distributed to nearly 65,000 Indians in California. This was in reimbursement for non-treaty land claims that were not already settled [It should be noted that interest was not allowed on compensation claims if they were just an "aboriginal title" and not a "recognized title" secured by treaty.]
See Solicitor's memo 8/1/1960 suit in the Court of Claims on behalf of the "Indians of California" for claims they might have against the United States "by reason of land's taken from them in the state of California by the United States without compensation . . .,"
(UCLA Report
"A Second Century of Dishonor") on federal funding inequities for California
tribes due to lack of treaties) 1969: "Final Report to the Governor and the
Legislature by the State Advisory Commission
on Indian Affairs."
[We recommend that] California Indians be declared eligible to participate in all
federally funded programs for Indians on the same basis as Indians in other states (SJR
32). 8
Senate Joint Resolution No. 32, California Legislature, August 21, 1969:
Whereas, The Indians of California are virtually excluded from participation in various
federal programs and services that are available to other Indians of the United States;
... therefore, be it
Resolved by the Senate and Assembly of the State of California, jointly, That the
Legislature of the State of California respectfully memorializes the President and the
Congress of the United States to establish a policy that insures that California Indians
are included to the fullest extent in various federal programs and services that are
available to other Indians of the United States.