# In Re Wilson

> California Supreme Court · October 8, 1981 · 30 Cal. 3d 21

URL: https://www.frixlaw.com/law-library/cases/9628086

## Case

- **Full name:** In Re ANDREW WILSON on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** October 8, 1981
- **Citations:** 30 Cal. 3d 21; 177 Cal. Rptr. 336; 634 P.2d 363; 1981 Cal. LEXIS 175
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Bird, Mosk, Newman
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9628086

## How later opinions describe it (automated extraction)

- rejecting Indians' claim that extinguishment of aboriginal title does not extinguish hunting and fishing rights, after surveying case law and concluding that "the right to hunt and fish has been held included in the right of occupancy"

## Opinion text

MOSK, J.
I dissent.
Where the majority stray from both reality and the law is in equating hunting and fishing rights with ownership of real property. They are clearly distinguishable; the waiver or extinction of one does not compel elimination of the other unless specifically provided. There is no such provision here.
Indeed there is virtually no relationship between title to real property and hunting and fishing. Anyone f¿miliar with outdoor life is aware that such activities are seldom undertaken on or limited by the boundaries of real property owned by the hunter and fisherman. Venison on the hoof and peripatetic trout are unlikely to feel circumscribed by metes and bounds.
Real property is immovable; it consists of land and that which is affixed to land (Civ. Code, § 658), such as timber (McAdams v. McElroy (1976) 62 Cal.App.3d 985 [ 133 Cal.Rptr. 637 ]; McKeever v. Locke-Paddon Co. (1922) 58 Cal.App. 51 [ 207 P. 1040 ]), fixtures (Civ. Code, § 660; Bank of America Nat. Trust & Sav. Assn. v. Los Angeles County (1964) 224 Cal.App.2d 108 [ 36 Cal.Rptr. 413 , 6 A.L.R.3d 491 ]), gas, oil and minerals (Cox v. United States (9th Cir. 1976) 537 F.2d 1066 ) and water flowing in its natural channel (Civ. Code, § 662; Fudickar v. East Riverside I. Dist. (1895) 109 Cal. 29 , 36 [ 41 P. 1024 ]). In short, the code defines land as “the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance . . . . ” (Civ. Code, § 659.)
Personal property is generally limited to visible, tangible, movable chattels, i.e., objects of the senses, deliverable in specie. (Italiani v. Metro-Goldwyn-Mayer Corp. (1941) 45 Cal.App.2d 464, 467 [ 114 P.2d 370 ].)
Hunting and fishing rights are neither real nor personal property; they are a distinct category of property, incorporeal in nature, broadly comparable to choses in action, products of the mind (Civ. Code, § 980; Johnston v. Twentieth Century-Fox Film Corp. (1947) 82 Cal.App.2d 796 [ 187 P.2d 474 ]), the right to practice a profession (Hewitt v. State *38 Board of Medical Examiners (1906) 148 Cal. 590 [ 84 P. 39 ]), causes of action (Neale v. Depot Railway Co. (1892) 94 Cal. 425 [ 29 P. 954 ]), and the good will of a business (Civ. Code, § 655).
With definitions clearly in mind the issue before us becomes relatively simple; when a party bargains away or otherwise is deprived of his real property rights and no more, does he thereby automatically suffer extinction of other incorporeal rights unrelated to real property? A negative answer seems compelled: a right remains a right until specifically eliminated by agreement, unequivocal waiver, or appropriate legislative enactment.
The United States Supreme Court has recognized that the federal government has the Big Brother power to extinguish the Indian right of occupancy, commonly known as “Indian title.” (United States v. Santa Fe Pacific R. Co. (1941) 314 U.S. 339, 347 [ 86 L.Ed. 260, 270 , 62 S.Ct. 248 ].) This is based on a theory, no longer open to us to question, that Indian title is primarily a permissive right to occupy certain land but the fee title remains with the United States government. (Oneida Indian Nation v. County of Oneida (1974) 414 U.S. 661, 667 [ 39 L. Ed.2d 73, 79 , 94 S.Ct. 772 ].) Thus Indian title, or aboriginal title, differs from what we commonly know as fee title.
In addition to, and as a distinct right separate from aboriginal title and the “right of occupancy,” there has been an historically recognized and unrestricted aboriginal right to hunt and fish. (Sac & Fox Tribe of Mississippi in Iowa v. Licklider (8th Cir. 1978) 576 F.2d 145, 153 ; United States v. Winans (1905) 198 U.S. 371, 381 [ 49 L.Ed. 1089, 1092-1093 , 25 S.Ct. 662 ].)
It is a well-established tenet of federal law that neither the existence of aboriginal title nor the separate right to hunt and fish are dependent upon a grant from the federal government. As the United States Supreme Court has stated: “Nor is it true, as respondent urges, that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal government action.” (United States v. Santa Fe Pacific R. Co., supra, 314 U.S. 339, 347 [ 86 L.Ed. 260, 270 ].) The term “Indian title” or “aboriginal title” means the right is derived from ancestral occupancy to a specified land area, not by means of a grant from the government.
*39 While these ancestral rights—occupancy, and hunting and fishing— are not dependent upon a grant, they can be eliminated by government action. For example, in Sac & Fox Tribe of Mississippi in Iowa v. Licklider, supra, SI6 F.2d at pages 151, 153, the circuit court found that by formal treaty, the tribe relinquished not only its possessory interest but also its aboriginal right to hunt and fish. (Also see United States v. Winans, supra, 198 U.S. 371, 381 [ 49 L.Ed. 1089, 1092-1093 ].)
The only manner in which “Indian title” can be extinguished is through explicit extinguishment pursuant to a “clear and plain” congressional mandate. (United States v. Santa Fe Pacific R. Co., supra, 314 U.S. 339, 353-354 [ 86 L.Ed. 260, 273-274 ]; Menominee Tribe v. United States (1968) 391 U.S. 404 [ 20 L.Ed.2d 697 , 88 S.Ct. 1705 ]). As was emphasized in Menominee Tribe , hunting rights exist independently from occupancy rights. Therefore, before tribal hunting rights are extinguished, Congress must also specifically and unequivocally extinguish them; this cannot be accomplished by conjecture or inference.
The United States Commission on Civil Rights recognized in its June 1981 report that “tribes may retain hunting and fishing rights in lands ceded to the United States in cases where no mention of such rights is made in a treaty.” Citing Menominee Tribe , the federal agency agrees that if hunting and fishing rights are not specifically terminated “when the tribal-Federal relationship was ended” the states are prevented from applying their game laws on the former reservation. (Indian Tribes: A Continuing Quest for Survival, Report of the United States Commission on Civil Rights (June 1981) pp. 44-45.)
In the case at hand, no congressional act can be identified by which the aboriginal hunting rights of the Pit River Indians have been extinguished. Moreover, the Appellate Department of the Shasta County Superior Court found as a fact that “the federal government has never abrogated or extinguished by treaty or statute, the tribe’s aboriginal fishing and hunting rights.”
It is true that the Pit River Indians have lost title to their aboriginal lands (United States v. Gemmill (9th Cir. 1976) 535 F.2d 1145 ), but in that process, and in arriving at a settlement thereafter with the government, it was clear that the agreement only “revoked the Indians’ rights of permissive occupancy” (id., p. 1149). No mention was made in the settlement, nor did Gemmill declare that any explicit or implicit under *40 standing was reached, to eliminate the Indians’ independent right to hunt and fish. As was stated recently in United States v. Dupris (8th Cir. 1979) 612 F.2d 319, 323 , “[Djiminishment of a reservation should only be found where the intent of Congress for such diminishment is clear and unambiguous.”
Cases cited by the majority are not apposite. In United States v. State of Minn. (D.Minn. 1979) 466 F.Supp. 1382 , the court found as a fact that the Indians there involved “were told that under the Nelson Act they would not retain special hunting and fishing rights in ceded areas . ..(Id., p. 1387.) United States v. Shoshone Tribe (1938) 304 U.S. 111 [ 82 L.Ed. 1213 , 58 S.Ct. 794 ] involved mineral rights, which everyone concedes are part of real property.
The Supreme Court case of Menominee Tribe v. United States, supra, 391 U.S. 404 , convincingly undermines the majority’s conclusion both in result and in rationale. The act of Congress there involved was by its terms “to provide for orderly termination of Federal supervision over the property and members” of the tribe, and thereafter “the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.” Justice Douglas, for the court, declared, “We decline to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians.” (Id., at p. 412 [ 20 L.Ed.2d at p. 703 ].) The court conceded the power to abrogate those rights exists (Lone Wolf v. Hitchcock (1903) 187 U.S. 553, 564-567 [ 47 L.Ed. 299, 305-307 , 23 S.Ct. 216 ]) but an intention to do so ‘“is not to be lightly imputed to the Congress.’ [Citation.]” (Id., at p. 413 [ 20 L.Ed.2d at p. 703 ]; also see Kimball v. Callahan (9th Cir. 1974) 493 F.2d 564 .)
The following quotation from Fishing in Western Washington—a Treaty Right, a Clash of Cultures, Indian Tribes: A Continuing Quest for Survival, A Report of the United States Commission on Civil Rights (June 1981) page 99, aptly relates the problem: “The fishing rights conflict is very much a study in frustration. Indian tribes have been fighting for their economic survival throughout this century. When non-Indian institutions, like courts and legislatures of the State and Federal governments upon which they have had to rely, have failed them, they have lost their promised rights. When some of those institutions have supported them, the battle itself has been moved to a different forum. The struggle, like the fish, is cyclical and ongoing. It requires tribes to *41 be ever vigilant to protect their fishing rights from many forms of direct attack as well as indirect assault. Through all the battles, they must move with caution. They are a political minority with assets envied by others. They have had to pay law firms and technical experts in order to retain their rights, and they have had to deal extensively with all branches of State and Federal governments in order to give lasting effect to last century’s promises. The situation is perhaps most easily summarized by the remark of one Indian fish manager: ‘Well, ... if they could get the politics out of the management of the fish, we’d have some.’”
It is anomalous that my colleagues in the majority have been willing to give unprecedented and, in my opinion unconstitutional, economic and educational preferences to specifically enumerated minorities, some of whom may have been recent arrivals in the state (see, e.g., DeRonde v. Regents of University of California (1981) 28 Cal.3d 875 [ 172 Cal. Rptr. 677 , 625 P.2d 220 ]; Price v. Civil Service Com. (1980) 26 Cal.3d 257 [ 161 Cal.Rptr. 475 , 604 P.2d 1365 ]), but they are unmoved by the attempted exercise of historically recognized rights of a minority people whose presence here antedates all of us. 1 One must ponder the political vigor of the former (see my dissent in DeRonde , p. 901) compared to the pathetic impotency of the numerically insignificant Pit River Indians.
From the colonial era to this very day, the dominant society has overreacted to Indian lore, as if it were a volatile threat to our security. This overrated danger, wrote the eminent historian W. E. Woodward, “has become a sort of historical myth” (Woodward, A New American History (1938) p. 105). Yet we have an unpaid debt to the Indians, if for no other reason than it was from them, who out of the need for survival were adept in the arts of hunting and fishing, that the early settlers on this continent learned and perfected their techniques of acquiring food for sustenance and material for clothing and shelter. (Beard, A Basic History of the United States (1944) p. 25.) We can best repay that obligation by broadening our perspective to welcome the existence of the diverse Indian culture, by encouraging rather than penalizing cherished traditions and by enhancing rather than disparaging the Indians’ sense of personal dignity.
*42 This petitioner and his fellow tribesmen should prevail—on the strength of their legal, moral and historical rights. I would issue a writ of habeas corpus.
Indeed, most unusual for a majority opinion, it devotes almost as much printed space to an effort to rebut this dissent as it does to justify its own conclusion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628086. Public record. Not legal advice.