Petition for Writ of Certiorari — Chunie v. Ringrose

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In The CLERK ae

Supreme Court of the United States

October Term, 1986

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UNITED STATES OF AMERICA ex rel. CHUNIE

(FRANCES S. HERRERA); THE BROTHERHOOD

OF THE TOMOL, INC., a California non-profit cor-

poration, and all Chumash descendants similarly sit-

uated,

| __Enner

Petitioner,

vs.

MARIE RINGROSE, ILDA McGUINNESS, PIER

GHERINI, FRANCES GHERINI, THE NATURE

CONSERVANCY, a District of Columbia non-profit

corporation, SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER LENNOX VAIL,

JAMES VAIL WILKINSON, NATHAN RUSSEL

VAIL, MARGARET VAIL WOOLEY, and THE

VICKERS COMPANY, LTD., a California corporation;

and THE STATE OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Sipvey C. Fiores*

Fores, Luna & Barrios

95 South Market Street, Suite 250

P.O. Box 266

San Jose, California 95103-0266

Telephone: (408) 292-3400

Marto GonzALEz

P.O. Box 334

Black Hawk, South Dakota 57718

Attorney for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the Act of March 3, 1851—which required

any person claiming lands in California by virtue of right

or title derived from the Spanish or Mexican governments

to present their claims to a board of land commissioners

within two years—is applicable to Chumash Indians claim-

ing lands under aboriginal Indian title.

LIST OF PARTIES

Pursuant to Rule 21.1 of the Rules of the United

States Supreme Court, the following is a list of all parties

to the proceedings before the Ninth Cireuit Court of Ap-

peals, to-wit:

APPELLANTS: United States of America Ex Rel.

Chunie (Frances S. Herrera) and the Brotherhood of the

Tomol, Ine. Although the case was filed as a class action

on behalf of all Chumash descendants similiarly situated,

the class was never certified by the District Court.

RESPONDENTS: Marie Ringrose; Ilda MecGuiness;

Pier Gherini; Frances Gherini; The Nature Conservancy,

a District of Columbia Corporation; The Santa Cruz Is-

land Company, a California corporation; Alexander Len-

nox Vail; James Vail Wilkinson; Nathan Russel Vail;

Margaret Vail Wooley; The Vickers Company, a Cali-

fornia Corporation; and The State of California.

iil

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW WW.

Lips OF FARTICS —_

ee Or GO

TABLE OF AUTHORITIES CITED .000ww..

OPINION BELOW

JURISDICTION OF THE COURT .

TREATIES AND STATUTES INVOLVED |...

Deere We ste COAGe

REASONS FOR GRANTING THE WRIT _.

Il.

IIT.

CHUMASH ABORIGINAL TITLE IS NOT

DERIVED FROM EITHER SPAIN OR MEXI-

CO AND THEREFORE DID NOT HAVE TO

BE PERFECTED UNDER THE 1851 ACT ......

A. Nature of Aboriginal Indian title 000000000...

B. Applicability of the doctrine of discovery to

the Mexican COSSLON QVC oeccccccccsccessseeesscecsseessstessesisee

C. Establishment of aboriginal Indian title ...........

D. Extinguishment of aboriginal Indian title ..

THE SCOPE AND MEANING OF THE AP-

PEAL PANEL’S DECISION IS IN CONFLICT

WITH DECISIONS OF THIS COURT AND

THE COURT OF CLAIMS HOLDING THAT

ABORIGINAL TITLE SURVIVED THE

MEXICAN CESSION AND MUST BE RE-

SPECTED UNTIL IT IS EXPRESSLY EX-

TINGUISHED BY CONGRESS ...

THE APPEAL PANEL ERRED IN HOLDING

THAT THE CHUMASH LOST ALL RIGHTS

IN THE ISLANDS AND CHANNEL BEDS

BY FAILING TO PRESENT CLAIMS IN

TABLE OF CONTENTS—Continued -

Page

THE LAND CONFIRMATION PROCEED-

INGS UNDERTAKEN PURSUANT TO THE

1848 TREATY OF GUADALUPE HIDALGO

PETERS Te RE lcs hana eestica

Background of the 1861 Act

Aboriginal title is not a creature of a econ-

quering sovereign, but is rather a principle of

international law derived from the doctrine

OF GE aa

Chumash aboriginal title was not frozen in

1848 when the United States extended its sov-

ereignty to the Mexican Cession area un-

der the Treaty of Guadalupe Hidalgo .............

Individual aboriginal title asserted in the

Cramer case is indistinguishable from tribal

aboriginal title ............... iia hides Sptckctlek plaice

. The Chumash elaims to aboriginal Indian title

are indistinguishable from those asserted in

the Cramer case and were never subject to

the land confirmation proceedings undertaken

parcuees: te ee 1G Bet

CEERI, acai bid Sissi ncstintecaicebniboalasaaisbooaoictens

APPENDIX:

UNREPORTED ORDER OF THE UNITED

STATES DISTRICT COURT GRANTING

DEFENDANTS’ MOTION TO DISMISS

(Filed November 29, 1984; Entered November

I NR cecannssneactedavescableaRentcmeg a acon cicaaanlen aetna iain

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

(April 29, 1986)

TABLE OF CONTENTS—Continued

JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH

Cimoure (iste 2e. TO) 2 a

ORDER AMENDING OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT (May 5, 1986) ...

PETITION FOR REHEARING

ORDER OF NINTH CIRCUIT COURT OF AP-

PEALS DENYING PETITION FOR RE-

HEARING (August 6, 1986) 0

1848 TREATY OF GUADALUPE HIDALGO,

ARTICLES VIII & 1X (9 STAT, 922)

1851 ACT TO ASCERTAIN AND SETTLE

THE PRIVATE LAND CLAIMS IN THE

STATE OF CALIFORNIA (9 STAT. 631) .....

TABLE OF AUTHORITIES

Page

Cases:

Barker v. Harvey, 181 U.S. 481 (1901) 22, 23, 24

Beecher v. Wetherby, 95 U.S. (5 Otto) 517 (1877) = 6

Choate v. Trapp, 224 U.S. 665 (1912) 13

Chouteau v. Molony, 57 U.S. (16 How.) 203 (1853) _. 6,10

Cramer v. United States, 261 U.S. 219 (1922)...10, 15, 19, 24

Cramer v. United States, 276 F. 78 (9th Cir. 1921) ...24, 26

Fletcher v. Peck, 10 U.S. (6 Craneh) 87 (1810) .. 7,18

Fremont v. United States, 58 U.S. (17 How.) 542

IIE icc cerension 17

Holden v. Joy, 84 U.S, 211 (1872) ........ 9

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543

(1823) 6, 7, 9, 12, 14, 18

Manuelo Carrillo de Jones v. United States, (S.D.

Cal., Dee. Term 1855) (Unpublished) 0. 17

Mitchel v. United States, 34 U.S. (7 Pet.) 711 (1835)...... 9

Oneida Indian Nation v. County of Oneida, 414

U.S. 661 (1974) ............ 9

Sac and Fox Tribe v. United States, 315 F.2d

896 Ct.Cl. 1963), cert. denied 375 U.S. 921

(1963) 12

Sac and Fox Tribe v. United States, 383 F.2d

Se Cees BD ii acne 12, 19

Sioux Nation v. United States, 23 Ind. Cl. Comm.

(i) 12

Summa Corporation v. California ex rel. State

Land Commission, 466 U.S. 198 (1984) .......... 10, 22, 23, 24

Tee-Hit- On Indians v. United States, 348 U.S. 272

(1955) 10

Title Insurance and Trust Co. v. United States,

265 U.S. 472 (1924) 22, 23

vii

TABLE OF AUTHORITIES—Continued

Page

Turtle Mountain Band v. United States, 23 Ind.

Cl. Comm. 315 (1970) 12

United States v. Castillero, 64 U.S. (23 How.)

464 (1860) xe 17

United States v. Dann, 105 S.Ct. 1058 (1985) ow... 10

United States v. Dann, 706 F.2d 919 (9th Cir. 1983)..10, 12

Umted States Fossatt, 62 U.S. (21 How.) 445

(1859) 17

United States v. Gemmill, 535 F.2d 1145 (9th Cir.

1976) 13, 14

United States v. Mississippi, 380 U.S. 128 (1965) ........... 5

United States ex rel. Chun v. Ringrose, 788 F.2d

638 (9th Cir. 1986) passim

United States ex rel. Hualpat Indians v. Santa Fe

Pacific Railroad Co., 314 U.S. 339 (1941) ww. 11, 12,

13, 19, 26

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ........ 6

FEDERAL TREATY AND STATUTORY PROVISIONS:

1848 Treaty of Guadalupe Hidalgo, 9 Stat. 922 .......... passim

1803 Louisiana Purchase, 8 Stat. 200 19

Act of March 3, 1851, 9 Stat. 631 passim

28 U.S.C. 1254 (1) 2

MISCELLANY:

Rule 21.1, United States Supreme Court i

Supreme Court of the United States

October Term, 1986

UNITED STATES OF AMERICA ex rel. CHUNIE

(FRANCES S. HERRERA); THE BROTHERHOOD

OF THE TOMOL, INC., a California non-profit cor-

poration, ana all Chumash descendants similarly sit-

uated,

Petitioner,

Vs.

MARIE RINGROSE, ILDA McGUINNESS, PIER

GHERINI, FRANCES GHERINI, THE NATURE

CONSERVANCY, a District of Columbia non-profit

corporation, SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER LENNOX VAIL,

JAMES VAIL WILKINSON, NATHAN RUSSEL

VAIL, MARGARET VAIL WOOLEY, and THE

VICKERS COMPANY, LTD., a California corporation;

and THE STATE OF CALIFORNIA, ©

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ra’

Petitioner United States of America ex rel. Chunie

(Frances S. Herrera) and the Brotherhood of the Tomol,

Inc. respectively pray that a Writ of Certiorari issue to

review the Judgment of the United States Court of Ap-

peals for the Ninth Circuit entered in these proceedings on

April 29, 1986.

o>)

OPINION BELOW

The Opinion of the Ninth Circuit Court of Appeals as

amended, is reported at 788 F.2d 638. The original opin-

ion and judgment of the Court of Appeals appear in Ap-

pendices B and C, and the amendment to the opinion ap-

pears in Appendix D. The unreported Order of the Dis-

trict Court granting Defendants’ motion to dismiss

appears in Appendix A.

JURISDICTION OF THE COURT

The Final Judgment and Opinion of the Court of

Appeals were filed and entered on April 29, 1986. The

Order Amending Opinion was filed on May 5, 1986. A

timely Petition for Rehearing was served on May 19, 1986

(Appendix E) and an order denying the petition was filed

on August 6, 1986 (Appendix F). This Petition for a Writ

of Certiorari was filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C. 1254 (1).

————_____ —_0Q——- ———_ - —

TREATIES AND STATUTES INVOLVED

The treaties and statutes involved are:

(1). The 1848 Treaty of Guadalupe Hidalgo, 9 Stat.

922 (Appendix G), which ceded all of the State of Califor-

nia from Mexico to the United States, and required the

United States to protect the property of Mexican citizens,

and the property of former Mexican citizens who elect to

become United States citizens, and

(2). The Act of March 3, 1851, ch. 41, 9 Stat. 631

(Appendix H), which was enacted for the purpose of as-

certaining and settling private land claims in the State of

California. The Act created a board of three commis-

sioners to determine the validity of land claims in Cali-

fornia and required every person claiming by virtue of

any right or title derived from the Spanish or Mexican

Governments to present their claims within two years.

Any land not claimed within two years, and any land for

which a claim was rejected, was deemed part of the publie

domain of the United States.

O--

STATEMENT OF THE CASE

From time immemorial, the Chumash Indians have

occupied the Santa Barbara Islands and surrounding chan-

nel beds! and mainland. ‘Two of the islands, Santa Cruz

and Santa Rosa, lie off the Santa Barbara coast and each

cover approximately 50,000 acres. United States ex rel.

Chunie v. Ringrose, 788 F.2d 638, 641 (9th Cir. 1986), Ap-

pendix at B-2.

Spain initially claimed all of California, including

Chumash territory, under the doctrine of discovery. Span-

‘Channel beds,” as used in the Chumash’s complaint, re-

fers to both tide and submerged lands underlying the Pacific

Ocean within three geographical miles seaward from the coast-

line of Santa Cruz and Santa Rosa Islands. See United States

Ex Rel. Chunie v. Ringrose, 788 F.2d 638, 646 n. 3 (9th Cir.

1986), Appendix at B-16.

ish and Mexican law regarding aboriginal title does not

differ from United States law. Spain’s discovery of Cali-

fornia ‘‘conferred upon Spain the right as sovereign to

extinguish the Indians’ aboriginal title’’ and Mexico,

upon its independence from Spain, ‘‘aequired this right

...’’ Id. at 642, Appendix at B-5.

In the 1830’s and 1840’s, the Mexican government

granted Santa Rosa Island to Antonio and Carlos Car-

rillo and Santa Cruz Island to Andres Castillero. Jd. at

641, Appendix at B-3. ‘‘[T]he Mexican land grants to

Castillero and the Carrillos did not effect an extinguish-

ment of the Chumash’s aboriginal title.’’ 7d. at 642-643,

Appendix at B-7.

Under the 1848 Treaty of Guadalupe Hidalgo (9 Stat.

922), Mexico ceded all of California to the United States.

To settle land claims in California, Congress passed the

Act of March 3, 1851 (9 Stat. 631). This Act created a

board of commissioners to determine the validity of claims,

and required every person ‘‘claiming lands in California

by virtue of any right or title derived from the Spanish or

Mexican government’’ to present the claim within two

years. Jd. at 641, Appendix at B-3.

‘

Andres Castillo, and the successor-in-interest to the

Carrillos, presented claims to the 1851 board of commis-

sioners, which were upheld by the federal courts. Jd. at

641, 645, Appendix at B-3, B-12. ‘‘The Chumash did not

file any claims under the [1851] Act,’’ since ‘‘aboriginal

title is not derived from the Spanish and Mexican govern-

ment.’’ Id. at 645, Appendix at B-12.

The Chumash claim nnextinguished aboriginal Indian

title to the islands and surrounding channel lands.? They

instituted this suit in District Court seeking declaratory

relief, damages for trespass and conversion, injunctive re-

lief, and attorneys fees. Eight individuals and three cor-

porations who claim interests in either Santa Cruz or

Santa Rosa Islands, and the State of California which

claims ownership to the surrounding tide and submerged

lands were named as defendants. Id. at 641, Appendix

at B-4.

On motions filed by defendants, the District Court

held that plaintiffs failed to state a claim for which relief

can be granted and dismissed the case. A timely appeal

was filed by the Chumash. Jd. at 641, Appendix at B-4.

On appeal, the Ninth Cireuit Court of Appeals:

1. Held that the District Court erred in holding that.

the Mexican Government’s grant of Santa Cruz and Santa

Rosa Islands to private individuals extinguished the Chu-

mash Indian’s aboriginal title and that ‘‘Castillero and

2it is undisputed that the Chumash are “claiming a right

of occupancy based on aboriginal title’ in this case. United

States Ex Rel. Chunie, 788 F.2d 638, 646 (9th Cir. 1986), Ap-

pendix at B-15. In Paragraph 4 of their amended complaint,

the Chumash allege that “|f]rom time immemorial, the Chu-

mash people have occupied the islands and surrounding chan-

nel beds. Each and every part of this territory was used for and

was essential to the subsistence and religious observances of

the Chumash people.” See First Amended Complaint, Docket

Entry No. 9, para. 4. These factual allegations were accepted

as true by the Appeal Panel for the purposes of appeal. See

Chunie, supra, 788 F.2d at 641. Accord, United States v. Mis-

sissippi, 380 U.S. 128, 143 (1965) (In considering the correctness

of a dismissal for failure to state a claim upon which relief can

be granted, “the allegations of the complaint are to be taken

as true’’). ;

the Carrillos, and their successors in interest, took the

islands subject to Chumash’s right of oecupany. Id. at

641-643, Appendix at B-7.3

2. Held that the Chumash lost all rights to the islands

and surrounding channel beds when they failed to present

claims in the land confirmation proceedings undertaken

pursuant to the Treaty of Guadalupe Hidalgo and the 1851

Act and affirmed the District Court on this basis. 7d. at

644-647, Appendix at B-11 to B-16.

3In reversing the District Court, the Appeal Panel ruled that

the “land grants to Castillero and the Carrillos did not effect

an extinguishment of Chumash’s aboriginal title’ and therefore

“Castillero and the Carrillos, and their successors-in-interest,

took the islands subject to the Chumash’s right of occupancy.”

United States Ex Rel. Chunie v. Ringrose, 788 F.2d 638, 642-643

(9th Cir. 1986). This ruling correctly upholds the principle in

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823), that

European discovers inherited the power to grant lands occupied

by Indians, but “[t}hese grants have been understood by all,

to convey a title to the grantees, subject only to the Indian

right of occupancy.”” [Emphasis Supplied]. Also see Worcester

v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Beecher v. Wetherby, 95

U.S. (5 Otto) 517, 525 (1877) (The grantee . . . would take only

the naked fee, and could not disturb the occupancy of the

Indians . . .’’); Chouteau v. Molony, 57 U.S. (16 How.) 203, 239

(1853) (land grants by the Spanish governors were made sub-

ject to the rights of Indian occupancy).

REASONS FOR GRANTING THE WRIT

I. CHUMASH ABORIGINAL TITLE IS NOT DE-

RIVED FROM EITHER SPAIN OR MEXICO AND

THEREFORE DID NOT HAVE TO BE PERFECT-

ED UNDER THE 1851 ACT.

A. Nature of Aboriginal Indian title.

In the first case it considered involving aboriginal

Indian title, the Supreme Court stated:

What is the Indian title? It is a mere occupancy

for the purpose of hunting. It is not like our tenures;

they have no idea of a title to the soil itself. Its

overrun by them, rather than inhabited. It is not a

true and legal possession. ***** * * Itis a right not

to be transferred but extinguished. It is a right reg-

ulated by treaties, not by deed of conveyance. It de-

pends upon the law of nations, not upon municipal

right. [Cites Omitted].

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 121 (1810).

The power of European governments, and successors

in interest such as the United States, to acquire Indian

title under international law was later discussed in John-

son v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823):

On the discovery of this immense continent, the great

nations of Europe were eager to appropriate to them-

selves so much of it as they could respectively acquire.

Its vast extent offered an ample field to the ambition

and enterprise of all; and the character and religion

of its inhabitants afforded an apology for considering

them as a people over whom the superior genius of

Europe might claim in ascendency. The potentates

of the old world found no difficulty in convincing

themselves that they made ample compensation to the

inhabitants of the new, by bestowing on them civiliza-

tion and Christianity, in exchange for unlimited in-

dependence. But, as they were all in pursuant of

nearly the same object, it was necessary, in order to

avoid conflicting settlements, and consequent war with

each other, to establish a principle, which all should

acknowledge as the law by which the right of aequisi-

tion, which they all asserted, should be regulated as

between themselves. This principle was that discovery

gave title to the government by whose subjects, or by

whose authority, it was made, against all other Eur-

opean governments, which title might be consummated

by possession.

The exclusion of all other Europeans, necessarily

gave to the nation making the discovery the sole right

of acquiring the soil from the natives, and establish-

ing settlements upon it. It was a right with which no

Europeans could interfere. It was a right which all

asserted for themselves, and to the assertion of which.

by others, all assented.

In the establishment of these relations, the rights of

the original inhabitants were, in no instance, entirely

disregarded; but were necessarily, to a considerable

extent impaired. They were admitted to be the right-

ful occupants of the soil, with a legal as well as just

claim to retain possession of it, and to use it

according to their own discretion; but their rights to

complete sovereignty, as independent nations, were

necessarily diminished and their power to dispose of

the soil at their own will. to whomsoever they pleased,

was denied by the original fundamental principle, that

discovery gave exclusive title to those who made it.

While the different nations of Europe respected the

right of the natives, as occupants, they asserted the

ultimate dominion to be in themselves; and claimed

and exercised, as a consequence of this ultimate domin-

ion, a power to grant the soil, while yet in possession

of the natives. These grants have been understood by

all, to convey a title to the grantees, subject only to

the Indian right of occupancy.

The history of America, from its discovery to the

present day, proves, we think, the universal recogni-

tion of these principles.

* * * * *

The United States, then, have unequivocally acceded

to that great and broad rule by which its civilized in-

habitants now hold this country. They hold, and as-

sert in themselves, the title by which it was acquired.

They maintain, as all others have maintained, that

discovery gave an exclusive right to extinguish the

Indian title of occupancy, either by purchase or by

conquest; and gave also a right to such a degree of

sovereignty as the circumstances of the people would

allow them to exercise.‘

Id. at 572-574, 587.

Aboriginal Indian title is ‘‘considered as sacred as the

fee simple of the whites,’’ Mitchel v. Umted States, 34 U.S.

(Pet.) 711, 745-746 (1835), and recognizes the Indians as

‘‘the rightful occupants of the soil, with a legal as well

as just claim to retain possession.’’ Johnson v. M’Intosh,

supra, 21 U.S. (8 Wheat.) at 574. It entitles the tribes to

full use and enjoyment of the surface and mineral estate,

and to resources, such as timber, on the land.’’ Ringrose,

supra, 788 F.2d at 642, Appendix at B-5. The right of pos-

session ‘‘is good against all but the sovereign’’ and can

‘‘be terminated only by sovereign act.’’ Oneida Indian

4Also see Holden v. Joy, 84 U.S. 211, 244 (1872), where the

Court held that the Cherokee Indians’ aboriginal title was ab-

solute subject only to the pre-emption right of purchase ac-

quired by the United States as the “successor” to Great Britain.

Nation v. County of Oneida, 414 U.S. 661, 667 (1974).5 Also

see Cramer v. United States, 261 U.S. 219, 227 (1922)

(‘‘[ I]t has been the policy of the Federal Government from

the beginning to respect [Indian Title], which could be

interfered with or determined by the United States) ;

Umited States v. Dann, 706 F.2d 919, 922 (9th Cir. 1983)

(‘‘[I]t is valid against all parties until it is ‘extinguished’

by the United States’’), rev’d. on other grounds 105 S.Ct.

1058 (1985).°

B. Applicability of the doctrine of discovery to the

Mexican cession area.

Spanish recognition of the doctrine of discovery is

evident in Chouteau v. Molony, 57 U.S. (16 How.) 2038, 239

5An extinguishment of aboriginal title by the United States

does not give rise to a right of compensation under the Fifth

Amendment. United States v. Dann, supra, 706 F.2d at 922 n. 1

(Citing Tee-Hit-Ton Indians v. United States, 348 U.S. 272

(1955)).. The Chumash presented an ancillary recognized title

claim below, United States Ex Rel. Chunie v. Ringrose, 788 U.S.

638, 644 (9th Cir. 1986), but do not challenge the findings of

the Appeal Panel regarding recognized title in this Petition.

®It would also be valid against a party such as the State of

California. ,

In this case the United States acceded to the rights pos-

sessed by the Mexican Government in California prior to 1848

under the doctrine of discovery. This includes fee title, which

was passed to the United States subject to the Indian right of

occupancy. Upon statehood, the State of California acquired

whatever rights the United States passed to them under the

Equal footing doctrine, i.e., fee title to tide and submerged

lands. This explains why the State had to perfect its fee in-

terests—which were derived from the Mexican Government

as the successor-in-interest to Spain—in Summa Corporation v.

California ex rel. State Lands Commission, 466 U.S. 198 (1984).

It also explains why the Indians claiming aboriginal Indian

title in Cramer v. United States, 261 U.S. 219 (1923), were not

subject to the 1851 Act.

(1853), where the Supreme Court held that a Spanish land

grant was ‘‘made subject to the Indian right of oeeupancy.”’

The Mexican Governiient acceded to the doctrine of dis-

covery when it gained its independence from Spain in 1821.

Chunie, supra, 788 F.2d at 642, Appendix at B-5.

The Court, moreover, has made it clear that ‘‘lands

within the Mexican Cession were not excepted from the

poliey to respect Indian rights or oceupaney,’’ and it would

‘‘take plain and unambiguous action to deprive [Indians]

of the benefits of that poliey.’’ United States ex rel.

Haulpai Indians v. Santa Fe Pacific Ratlroad Co., 314 US.

339, 345-46 (1941). The Court expressly found that:

[T]he Cramer case assumed that lands within the

Mexican cession were not excepted from the policy to

respect Indian right or oeeupaney. Though the Cramer

ease involved the problem of individual Indian occu-

pancy, this Court stated that such occupancy was not

to be treated differently from ‘the original nomadic

tribal occupancy.” * * * Perhaps the assumption

that aboriginal possession would be respected in the

Mexiean Cession was, like the generalizations in the

Johnson v. M’Intosh,... not necessary for the narrow

holding of the case. But generalizations have been so

often and so long repeated as respects land under the

prior sovereignty of the various Kuropean nations in-

eluding Spain, that like other rules governing title to

property ... they should now be considered no longer

open.’’ |Emphasis Supplied}.

Id. at 346.

Thus, it is ‘‘no longer open’’ to question that the doc-

trine of discovery is applicable to Chumash territory in the

State of California and Chumash aboriginal title lands

must be respected until title is expressly extinguished by

Congress.

C. Establishment of aboriginal Indian title.

‘‘The existence of aboriginal title is in every case a

question of fact.’’ Umited States v. Dann, 706 I°.2d 919,

933 n. 10 (9th Cir. 1983) (Citing United States ex rel.

Hualpai Indians v. Santa Fe Pacific Railroad Co., 314 U.S.

339, 345 (1942)), rev’d. on other grounds at 105 S.Ct. 1058

(1985). Exclusive use and occupation ‘‘for a long time’’

prior to the loss of the property by a tribe is sufficient to

give aboriginal title. Sac and Fox Tribe v. United States,

383 F.2d 991, 998 (Ct.Cl. 1967) (Citing Sac and Fox Tribe

v. United States, 315 F.2d 896, 903 (Ct.Cl. 1963), cert

demied 375 U.S. 921 (1963)); Turtle Mountain Band v.

Umited States, 23 Ind. Cl. Comm. 315, 323-324 (1970). ‘‘That

a ‘long time’ ran during the period of United States sov-

ereignty over [an] area involved rather than during the

period of ... Spanish [and Mexican] sovereignty is irrele-

vant insofar as the perfecting of Indian title is concerned.”’

Sioux Nation v. United States, 23 Ind. Cl. Comm. 419

423 (1970).

D. Extinguishment of aboriginal Indian title.

The Supreme Court in Johnson v. M’Intosh, supra, 21

U.S. (8 Wheat.) at 587, provided that extinguishment of

aboriginal title could occur “either by purchase or by con-

quest.” The Court later clarified the manner in which

Indian title could be extinguished by holding extinguish-

ment can occur, “whether it be done by treaty, by the

sword, by purchase, by the exercise of complete dominion

adverse to the right of occupancy, or otherwise.” “The

intent must be clear, however, ‘an extinguishment cannot

be lightly implied.’” United States v. Dann, supra, 706

F.2d at 928 (Citing United States ex rel. Hualpai Indians

v. Santa Fe Pacific Railroad Co., 314 U.S. at 347 (1942)).

In United States v. Gemmill, 535 F.2d 1145 (9th Cir.

1976), the Ninth Circuit Court of Appeals stated that:

[D]espite ‘the policy of the Congress, continued

throughout our history, to extinguish Indian title

through negotiation rather than by force’... , extin-

guishment need not be accomplished by treaty or vol-

untary cession. The relevant question is whether the

governmental action was intended to be a revocation

of Indian occupancy rights, not whether the revoca-

tion was effected by permissible means. [Emphasis

Supplied].

Id. at 1148.

The Ninth Cireuit—without deciding whether Congress

intended in the “ambiguous Act of 1851” to extinguish ab-

original Indian title of the Pitt River Indians of Cali-

fornia’—further noted that the exact date of extinguish-

ment “is often difficult to determine.” Gemmill, supra,

535 F.2d at 1149. The court, after examining various gov-

ernmental actions regarding Pitt River lands, found that:

Any one of these actions, examined in isolation, may

not provide an unequivocal answer to the question of

7TAmbiguous acts regarding Indians are to be liberally con-

strued and interpreted in their favor: “{D]Joubtful expressions,

instead of being resolved in favor of the United States, are to

be resolved in favor of a weak and defenseless people, who

are wards of the nation, and dependent wholly upon its pro-

tection and good faith.” United States ex rel. Hualpai Indiains

v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354 (1941) (quot-

ing Choate v. Trapp, 224 U.S. 665, 675 (1912). The Appeal Panel

should have therefore resolved the applicability of the 1851

Act to Chumash aboriginal title in favor of the Chumash instead

of against them.

extinguishment. However, the activity of the federal

government, beginning with the ambiguous <Act of

1851 and culminating in the payment of the compro-

mise settlement, has included expulsion by force, in-

consistent use, and voluntary payment of compensa-

tion agreement. * * * This century-long course of con-

duct amply demonstrates that the Pitt River Indian

title has been extinguished.

Gemmill, supra, 535 F.2d at 1149.

II. THE SCOPE AND MEANING OF THE APPEAL

PANEL’S DECISION IS IN CONFLICT WITH

DECISIONS OF THIS COURT AND THE COURT

OF CLAIMS HOLDING THAT ABORIGINAL

TITLE SURVIVES STATE SUCCESSION AND

MUST BE RESPECTED UNTIL IT IS EXPRESS-

LY EXTINGUISHED BY CONGRESS.

The Appeal Panel held that the Chumash lost all rights

to Santa Cruz and Santa Rosa Islands and surrounding

channel beds when they failed to present their claims in

the land confirmation proceedings undertaken pursuant

to the 1848 Treaty of Guadalupe Hidalgo and 1851 Act.

Ringrose, supra, 788 F.2d at 644-647. The [ratio decidendi|

for this holding can be broken down as follows:

(1). Aboriginal Indian title ‘‘is not an owner-

ship right, but is rather a right of occupancy granted

by the conquering sovereign’’ and is therefore ‘‘a

creature of the conquering sovereign’s law.’’ Riny-

rose, supra, 788 F.2d at 642, Appendix at B-5.

‘‘Spain’s discovery and conquest® of the California’s

8The Appeal Panel apparently equates discovery with con-

quest in this regard. This is, of course, inconsistent with the

language in Johnson v. M’Intosh, that, after discovery, extin-

guishment could be “either by purchase or conquest,” 21 U.S.

(8 Wheat.) at 587, which the Appeal Panel accepted as appl-

icable to this case. United States ex rel. Chunie v. Ringrose,

788 F.2d at 642, Appendix at B-6.

Conferred upon Spain the right as sovereign to ex-

tinguish the Indians’ aboriginal title. When Mexico

obtained its independence from Spain, Mexico

acquired this right to extinguish aboriginal title.’’

Ringrose, supra, 788 F.2d at 642, Appendix at B-5.

(2). Upon transfer of sovereignty over Chumash

territory from Mexico to the United States under the

1848 Treaty of Guadalupe Hidalgo, Chumash title be-

come frozen under Mexican law. The aboriginal title

asserted by the Chumash is therefore frozen under

Mexican iaw as of 1848 and hence ‘‘derived from’?

Mexican law. Ringrose, supra, 788 F.2d at 646, Ap-

pendix at D-2 (‘‘The Chumash .. . do derive their

claim from a right of occupancy existing under Span-

ish or Mexican law, and their right existed weil be-

fore 1848).

(3). Subsequent to 1848, individual Indians in

the Mexican Cession area could still move upon a

tract of their aboriginal tribal territory, fence it off,

cultivate it, and re-establish individual aboriginal

title under United States law such as the California

Indians in Cramer v. United States, supra. Ringrose,

supra, 788 F.2d at 646, Appendix at D-2 (‘‘These

facts explain the court’s remark that the Cramer In-

dians ‘are not shown to be within the terms of the

Act of 1851 in any respect.’ ’’).

(4). The Chumash claims in this case are based

on tribal aboriginal title established under Mexican

law prior to 1848 and not individual aboriginal title

established under United States law subsequent to

1848. Chumash claims to tribal aboriginal title are

therefore subject to the land confirmation proceed-

ings undertaken pursuant to the 1851 Act. Since the

Chumash failed to file claims to the islands and chan-

nel beds, they lost them. Ringrose, supra, 788 F.2d

at 646, Appendix at B-15 (‘‘[WJe conclude that the

district court correctly held that the Chumash, claim-

ing a right of occupancy based on aboriginal title,

lost all rights in the land when they failed to present

a claim to the [1851 land] commissioners’’).

This legal analysis of aboriginal Indian title is clearly

erroneous and in conflict with decisions of the Supreme

Court and Court of Claims holding that aboriginal title

survived the Mexican cession and must be respected in

the area until expressly extinguished by Act of Congress.

III. THE APPEAL PANEL ERRED IN HOLDING

THAT THE CHUMASH LOST ALL RIGHTS IN

THE ISLANDS AND CHANNEL BEDS BY FAIL-

ING TO PRESENT CLAIMS IN THE LAND CON.

FIRMATION PROCEEDINGS UNDERTAKEN

PURSUANT TO THE 1848 TREATY OF GUADA-

LUPE HIDALGO AND 1851 ACT.

A. Background of the 1851 Act.

Congress passed the 1851 Act (Appendix H) to pro-

tect the property rights of former Mexican citizens in the

newly-acquired territory, i.e., California, and to settle land

claims. The Act created a board of three commissioners

to determine the validity of claims and required ‘‘every

person claiming lands in California by virtue of any right

or title derived from the Spanish or Mexican govern-

ment’’ to present the claim to the commissioners within

two years. Appeals could be taken to the Supreme Court.

Where a land claim was confirmed, a federal patent was

issued and was conclusive between the patentee and the

United States, but not binding against the interest of third

parties with superior titles. Any land not claimed within

two years, and any land for which a claim was rejected,

was deemed ‘‘part of the public domain of the United

States.’’ Ringrose, supra, 788 F.2d at 644-645, Appendix

at B-11. y

The purpose of the 1851 Act was “to authenticate

titles, and to afford the solid guarantee to rights which

ensues from their full acknowledgement by the supreme

authority.” Ringrose, supra, 788 F.2d at 645, Appendix

at B-11 (citing United States v. Fossatt, 62 U.S. (21

How.) 445, 448 (1859)). The goal was “to place the titles

to land in California upon a stable foundation, and to give

the parties who possess them an opportunity of placing

them on the records of the country, in a manner and form

that will prevent future controversy.’’ Ringrose, supra,

788 F.2d at 645, Appendix at B-11 to B-12 (citing Fremont

v. United States, 58 U.S. (17 How.) 542, 553-54 (1855) ).

The Chumash did not file any aboriginal title claims

to Santa Cruz and Santa Rosa Islands under the 1851 Act.

Land grants to the islands made to Castillero and the Car-

rillos were confirmed, however, Ringrose, supra, 788 F.2d

at 645, Appendix at B-12 (Citing United States v. Cas-

tillero, 64 U.S. (23 How.) 464 (1860) and Manuelo Carrillo

de Jones v. United States, (S.D. Coa., Dec. Term 1855)

(Unpublished) ).

B. Aboriginal title is not a creature of a conquer-

ing sovereign, but is rather a principle of inter-

national law derived from the doctrine of dis-

covery.

The Appeal Panel’s ruling that aboriginal title is a

“creature of a conquering sovereign’s law,” 788 F.2d at 642,

Appendix at B-5, directly conflicts with the Court’s opin-

ions in Fletcher v. Peck, supra, and Johnson v. M’Intosh,

supra.

Aboriginal Indian title is derived from the doctrine

of discovery and is a principle of international law. In

Fletcher v. Peck, supra, 20 U.S. (6 Crunch) at 121, the

Court ruled that aboriginal Indian title is “a right regu-

lated by treaties, not by deeds of conveyance’’ and ‘‘de-

pends upon the law of nations not upon municipal right.’’

[Emphasis Supplied}.

‘The basic reason for the recognition of Indian title

as a principle of international law is set forth in Johnson

v. M’Intosh, supra, as follows:

The potentates of the old world found no difficulty in

convincing themselves that they made ample compen-

sation to the inhabitants of the new, by bestowing on

them civilization and Christianity, in exchange for un-

limited independence. But, as they were all in pur-

suant of nearly the same object, it was necessary, in

order to avoid conflicting settlements, and consequent

war with each other, to establish a principle, which

all should acknowledge as the law by which the right

of acquisition, which they all asserted, should be regu-

lated as between themselves. This principle was that

discovery gave title to the government by whose sub-

jects or by whose authority, it was made, against all

other European governments, which title might be con-

sumated by possession. [Emphasis Supplied].

Id., 21 U.S. (8 Wheat.) at 572.

Thus, the Appeal Panel erred in holding that ab-

original title is a creation of the law of the discovering na-

tion, or its successor, rather than a principle of interna-

tional law.

oS -

C. Chumash aboriginal title was not frozen in 1848

when the United States extended its sovereignty

to the Mexican Cession area under the Treaty of

Guadalupe Hidalgo.

The Appeal Panel’s ruling that Chumash aboriginal

title was frozen in 1848 when the United States

acquired California from Mexico under the Treaty of

Guadalupe Hidalgo and extended its sovereignty to the

area is clearly erroneous.’ It directly conflicts with the

Court’s opinion in United States ex rel. Hualpat Indians

v. Santa Fe Pacific Railway Co., supra, and the Court of

Claims opinion in Sac and Fox Tribe v. United States, 383

F.2d 991 (Ct.Cl. 1967).

In Santa Fe, the Court ruled that “[rJecognition of

Indian possessory rights by a prior sovereign, such as...

Mexico and Spain, is not essential to the validity of such

rights under the law of the United States,’’ 314 US. at

342, and that aboriginal title survived the 1848 cession of

territory from Mexico to the United States. Jd. 314 U.S.

at 345-346.

In Sac and Fox Tribe, the Indian Claims Commission,

similar to the Appeal Panel in this case, found that ab-

original Indian title of the Sac and Fox Tribe was frozen

as of April 30, 1803, when the United States acquired Sac

and Fox territory from France by virtue of the Louisiana

Purchase (8 Stat. 200). The Indian Claims Commission

refused to consider post 1803 evidence that would have

*The Appeal Panel distinguished Cramer v. United States,

261 U.S. 219 (1923), on the basis that ‘there was no showing

that [the Cramer Indians} had occupied the land as early as

1848, when the Treaty was signed. . .” Chunie, supra, 788 F.2d

at 646, Appendix at D-2.

established Indian title under United States law and took

the position that Indian title could not thereafter be estab-

lished. Jd., 383 F.2d at 997. The Court of Claims re-

versed on appeal:

In the case before us, the Indian Claims Commission

approved and recognized the right of discovery doc-

trine with its attribute of sovereign title to land by

holding that the United States acquired sovereign title

to the lands in question in 1803, by virtue of the Lou-

isiana Purchase from France. In other words, it held

that France had sovereign title by right of discovery,

subject to the right of use and occupancy by Indians

living on it, and we purchased that title in 1803. In-

ferentially, if there had been any change in Indian

title among the Indians using and occupying the land

between the time of the French discovery and the

French sale to our Government in 1803, such change

would have been recognized. But the Commission

froze all changes in Indian title as of 1803, and re-

fused to consider any changes between that date and

1824, the date of the Treaty of Cession. If the Com-

mission had been consistent, it would have frozen the

date of changes in Indian title as of the date of dis-

covery of the land by the French instead of 1803. The

Louisiana Purchase only gave us such title as the

French had and there wes no addition to the validity

of the sovereign title to the land by our purchase of

it in 1803—there was no magic to that date.

It would not be in accordance with facts nor history

to freeze all Indian titles as of the date of the discov-

ery of America, nor with our own Declaration of In-

dependence in 1776. We know that there was con-

siderable change in such titles after these dates. Con-

sequently, it is not possible to fix any cutoff date for

the establishment of Indian title, except the date the

Indians lose the land through treaty or otherwise. In

this case, the date is 1824, the date of cession of the

land to the United States by treaty.”

By refusing to consider evidence of Indian title ac-

quired after 1803, the Commission took the position,

in effect, that since the United States acquired sover-

eign or legal title from France in 1803, no one, not

even the Indians—could acquire any kind of title—

not even Indian title—after that date except by grant

from the Government itself. Such a position would

be correct as to sovereign or legal title, but not as to

Indian title.

We think the Commission committed error in refusing

to consider the evidence of the tribes as to Indian title

acquired by them between 1803 and 1824. Use and

occupancy of a portion or of all of the land in ques-

tion by them between these dates, especially when con-

nected with use and occupancy immediately prior to

1803, covld well have been use and occupancy ‘for a

long time’ and sufficient to constitute Indian title to

the land.

Id. at 998-999. Accord, Sioux Nation v. United States, 23

Ind. Cl. Comm. 419, 423 (1970) (‘*That a ‘long time’ ran

during the period of United States sovereignty over [an]

area rather than during the period of ... Spanish sov-

ereignty is irrelevant insofar as the perfecting of Indian

title is concerned’’).

101m Paragraph 12 of their amended complaint, the Chumash

alleged that “[t]he Chumash people never entered into any

treaty, compact, covenants or agreement in which they have

voluntarily ceded and divested their aboriginal title to the Span-

ish Crown, the Spanish Church, or the Republic of Mexico.”

See First Amended Complaint, Docket Entry 9, para. 12. No one

disputes in this case that the Chumash never entered into

any treaty or agreement by which they ceded their aboriginal

territory to Spain, Mexico or the United States.

D. Individual aboriginal title asserted in the Cramer

case is indistinguishable from tribal aboriginal

title.

There are two types of cases which the Court has con-

sidered regarding Indian claims to lands located in Cali-

fornia.

The first type of case involves claims by mission In-

dians claiming titles derived from Spanish and Mexican

land grants. The Court twice ruled that Indians assert-

ing claims of this nature were required to file their claim

in the land confirmation proceedings undertaken pursuant

to the 1851 Act. See Barker v. Harvey, 181 U.S. 481 (1901)

and Title Insurance and Trust Co. v. United States, 265

U.S. 472 (1924). Also see Summa Corporation v. Cali-

fornia ex rel. State Land Commission, 466 U.S. 198 (1984).

Barker v. Harvey, supra, involved claims to a per-

manent right of occupancy" of lands for which the plain-

tiffs held confirmed patents. The Court held that the In-

dians lost any rights they might have had by not present-

ing their claims to the commissioners under the Act of

1851. The Indians claimed a right of occupancy derived

from the Mexican government, and one of the land grants

included an express condition that the grantee would ‘‘not

molest the Indians that thereon may be established.’’ Jd.,

"The use of this terminology, i.e., “right of occupancy,”

in Barker has caused confusion over the years. As the Appeal

Panel correctly noted, the defendants in the Barker case “ap-

parently claimed a right of occupancy derived from the Mexi-

can government; in addition, one of the land grants included

an express condition that the grantee ‘not molest the Indians

that thereon may be established.”” United States ex rel. Chunie

Vv. eee 788 F.2d 638, 645 (9th Cir. 1986), Appendix at B-12

to B-13.

Se,

181 U.S. at 482. Hither of these facts supports the Court’s

holding that the Indians rights were ‘‘derived from the

Mexican government’’ and subject to the 1851 Act. The

Court also concluded that the Indians had abandoned the

lands prior to the cession and therefore had no valid right

of oceupaney. Z/d., 181 U.S. at 499. This finding also sup-

ports: the Court’s conclusion adverse to the Indians.

Title Insurance, supra, involved a claim to a ‘‘per-

petual right’’ to occupy land which the Mexican govern-

ment had granted and which a confirmed patent had been

issued. J/d., 265 U.S. at 481. The Court followed its de-

cision in Barker and held that the Indians’ claim was lost

by failure to present it to the commission. Id., 265 U.S.

at 485-86.

Summa Corporation, supra, involved the State of Cali-

fornia’s obligation to present claims under the 1851 Act

in a dispute involving tidelands to which Summa held a

confirmed patent derived from a Mexican land grant. The

State claimed it acquired an interest in the tidelands upon

admission to the union, and that this sovereign right sur-

vived the 1851 confirmation proceedings. Citing Barker

and Title Insurance, the Court held that the State’s claim

must have been presented in the patent proceedings or be

barred. Jd. at 209.

Thus, Barker and Title Insurance, as interpreted in

Summa Corporation, stand for one proposition: When mis-

sion Indians (and the State of California) claim under

title derived from the Spanish or Mexican Government.

they had to file their claims in the land confirmation pro-

ceedings undertaken pursuant to the 1851 Act.”

The second type of case involves claims by Indians

based on aboriginal Indian title and not by virtue of title

derived from the Spanish or Mexican government. See

Cramer v. United States, 261 U.S. 219, 231 (1923), where

the Court squarely held that ‘‘[t]he [1851] act plainly

has no application’’ to individual aboriginal title claims

in California and that ‘‘[t]he Indians here concerned do

not belong to any of the classes described therein, and

their claims were in no way derived from the Spanish or

Mexican governments.’’

Cramer involved lands which the Indians had alleg-

edly ‘‘oceupied . . . continuously since before 1859,’’"? and

which had been granted to the defendant’s predecessor

pursuant to an 1866 statute. Jd., 261 U.S. at 225. The

Court distinguished Barker as a case involving ‘‘ Mission

Indians claiming a right of occupancy derived from the

Mexican Government,’’ and concluded that ‘‘ [t]he Indians

21n this regard, the Appeal Panel noted that “[a]lthough

the Court in Summa did not have before it the question of

whether Indians were required to file claims, the far-reaching

holding evidences the Court’s conclusion that the land con-

firmation proceedings were all-encompassing.” United States

Ex Rel. Chunie v. Ringrose, 788 F.2d at 646, Appendix at B-14.

131n Cramer, the United States asserted on behalf of the

Indians that they occupied the disputed tracts of land “prior

to 1904 and from time immemorial.” The case affected “two

individual Indians, remnants of a band that since 1859 have

lived in a small valley in Siskiyou County, California’ who

“have occupied and cultivated and enclosed certain of the lands

involved.” See Cramer v. United States, 276 F. 78, 79 (9th Cir.

1921).

here concerned have no such claim and are not shown to

be within the terms of the Act of 1851 in any respect.’’

Id., 261 U.S. at 231.

E. The Chumash claims to aboriginal Indian title

are indistinguishable from those asserted in the

Cramer case and were never subject to the land

confirmation proceedings undertaken pursuant to

the 1851 Act.

Although the Appeal Panel correctly set forth the

applicable law and correctly interpreted the relevant de-

cisions of this Court, it incorrectly applied the law ‘and

court decisions by finding that:

The Chumash rely primarily on the case of Cramer

v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed.

622 (1923). Cramer involved lands which the Indians

had allegedly ‘occupied . . . continuously since before

1859,’’ and which had been granted to the defendant’s

predecessor pursuant to an 1866 statute. Jd. at 255,

43 S.Ct. at 343. The Court distinguished Barker as a

case involving ‘‘mission Indians, claiming a right of

occupancy derived from the Mexican Government,”’

and concluded that ‘‘{t]he Indians here concerned have

no such claim and are not shown to be within the terms

of the Act of 1851 in any respect.’’ 7d. at 231, 43 S.Ct.

at 345. Although the Chumash cite Cramer in support

of their position, their reasoning fails. The Cramer

court observed that the Indians in the case before it

did not derive their claims from the Spanish or Mexi-

can governments, and that there was no showing that

they had occupied the land as early as 1848, when the

Treaty was signed, or 1851, when the land confirmation

act was enacted. Jd. These facts explain the court’s

remark that the Cramer Indians “are not shown to be

within the terms of the Act of 1851 in any respect.’’

The Chumash, unlike the Cramer Indians, do derive

their claim from a right of occupancy existing under

Spanish or Mexican law, and their right existed well

before 1848.

Ringrose, supra, 788 F.2d at 646, Appendix at B-14, D-2."4

As noted above, the Appeal Panel ruled that the

Cramer Indians came into possession of the disputed lands

after 1848 and therefore the aboriginal Indian title was

derived under United States law, while the Chumas occu-

pied their land prior to 1848 and therefore their aboriginal

title was derived from Spanish and Mexican law. This

novel view is clearly erroneous and conflicts with over a

one and one-half centuries of legal precedent. Moreover,

it is contrary to United States ex rel. Hualpat Indians v.

Santa Fe Pacific Railroad Co., supra, where the Court

expressly found that there is no legal distinction between

aboriginal title claimed by a tribe and aboriginal title

claimed by an individual member of the same tribe:

[T]he Cramer case assumed that lands within the

Mexican cession were not excepted from the policy to

4This language substitutes the language in the original

opinion which stated that:

Although the Chumash cite Cramer in support of their po-

sition, their reasoning fails. The Cramer court observed

that the Indians therein had occupied the land “since

before 1859,” but there is no evidence the Indians occu-

pied the land when the Treaty was signed in 1848 or when

the land confirmation act was enacted in 1851. This ex-

plains the Court’s remark that the Cramer Indians “are

not shown to be within the terms of the Act of 1851 in

any respect.” If the Indians in Cramer did not occupy the

lands in 1851, it follows that the Act of 1851 would not

apply to them. Cramer does not, therefore, support the

Chumash’s position.

See Appendix B-14 to B-15.

}

respect the Indian right of occupancy. Though the

Cramer case involved the problem of individual Indian

occupancy, this Court stated that such occupancy was

not to be treated differently fre om ‘the original nomadic

tribal occupancy.’ * * * * * * Perhaps the

assumption that aboriginal possession would be re-

_ spected *n the Mexican Cession was, like the generaliza-

tions in Johnson v. M’Intosh, .. . not necessary for

the narrow holding of the case. But generalizations

have been so often and so long repeated as respects

land under the prior sovereignty of the various Euro-

pean nations including Spain, that like other rules

governing title to property ... they should now be

considered no longer open. [Kmphasis Supplied].

Id., 314 U.S. at 346.

CONCLUSION

Based on the foregoing, this Court should issue a Writ

of Certiorari to the United States Court of Appeals for the

Ninth Cireuit to review, and to reverse summarily, its

decision below.

RESPECTFULLY SUBMITTED,

Sipney C. Fores*

Fores, Luna & Barrios

95 South Market Street, Suite 250

P.O. Box 266

Jan Jose, California 95103-0266

Telephone: (408) 292-3400

Mario GonzaALEz

P.O. Box 334

Black Hawk, South Dakota 57717

Attorneys for Petitioner

*Counsel of Record

A-1

APPENDIX A

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 84-4144-DWW (JRx)

UNITED STATES OF AMERICA ex rel.

CHUNIE (FRANCES 8S. HERRERA), and all

Chumash descendants similarly situated,

Plaintiffs,

vs.

MARTE RINGROSE, ILDA MCGUINNES, PIER

GHERINI, FRANCES GHERINI, THE NATURE

CONSERVANCY, a District of Columbia non-profit

corporation, SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER LENNOX VAIL,

JAMES VAIL WILKINSON, NATHAN RUSSEL

VAIL, MARGARET VAIL WOOLLEY, and THE

VICKERS COMPANY, LTD., a California Corporation ;

and the STATE OF CALIFORNTA,

Defendants.

ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS

(Filed November 29, 1984)

Piaintiff Chunie, Frances S. Herrera, has filed this

class action on behalf of the Chumash people and their

living descendants seeking damages for unlawful trespass

and conversion of the Santa Barbara Islands and sur-

rounding channel beds. Plaintiff, a member of the Chu-

mash Indian tribe, claims the Chumash were never di-

vested of aboriginal Indian title to the Santa Barbara

Islands.

A full hearing was held in this matter. Upon con-

sideration of all the relevant documents and arguments

A-2

raised by counsel for all parties represented at the hear-

ing, this court finds that the sovereign Mexican govern-

ment’s grant of the Santa Barbara Islands (Santa Cruz

aud Santa Rosa Islands) to private individuals and their

perfection of their grants through the proper land com-

mission proceedings effectively extinguished any aborig-

inal title the Chumash may have enjoyed.

Spain’s discovery of California and its conquest of

the Indians conferred upon it the exclusive right to ex-

tinguish the Indians’ aboriginal occupancy rights. The

Supreme Court has described aboriginal Indian title as a

mere right to occupancy which exists at the will of the

discovering sovereignty. See Johnson v. M’Intosh, 21 U.S.

(8 Wheat.) 543 (1823); T'ee-Hit-Ton Indians v. United

States, 348 U.S. 272 (1955). That right of extinguishment

passed to Mexico when it obtained its independence from

Spain in 1838. Mexico exercised its sovereign power by

granting the Santa Cruz and Santa Rosa Islands to pri-

vate individuals.

Even if these grants were not sufficient to extinguish

all Chumash aboriginal rights in the islands, the United

States succeeded to the exclusive right with the signing

of the Treaty of Guadalupe Hidalgo, 9 Stat. 922 (1848),

which passed national dominion of all of California, in-

cluding its adjacent islands, from Mexico to the United

States. The Act of 1851, 9 Stat. 631 (1851), implemented

the Treaty by providing procedures to ascertain and settle

any land claims. The Act mandated that such clainis be

brought before March 3, 1853. The private individuals

filed timely claims, and the Supreme Court and a district

court upheld and confirmed their titles to the Santa Crone

A-3

and Santa Rosa Islands, respectively. See United States

v. Castillero, 64 U.S. (23 How.) 464 (1859); Manuela

Carrillo de Jones v. United States (December Term 1855).

Castillero and Carrillo are predecessors-in-interest to de-

fendants in this action.

The Chumash did not file a claim. Any rights that

the Chumash may have had was then extinguished by

their failure to proceed with a timely claim in accordance

with the requirements of the Act of 1851. See, e.g.,

Summa Corp. v. California, 80 L.Ed.2d 237 (1984); United

States v. Title Insurance and Trust Co., 265 U.S. 472

(1924); Barker v. Harvey, 181 U.S. 481 (1901).

The State of California received absolute title to the

tide and submerged lands surrounding Santa Cruz and

Santa Rosa Islands as an incident of its sovereignty. That

title is grounded in the state constitution, and it has been

confirmed and ratified by later federal legislation and

Supreme Court decrees.

Plaintiffs fail to state a claim for which relief can

be granted. It is, therefore, ordered that this action be

dismissed as to all defendants.

DATED: This 29 day of Nov., 1984.

/s/ David W. Williams,

Senior U.S. District Judge

B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-5508

D.C. No. CV 84-4144-DWW

UNITED STATES OF AMERICA, ex rel.

CHUNIFE (FRANCES 8S. HERRERA), THE

BROTHERHOOD OF THE TOMOL, INC.,

a Califorma corporation, and all Chumash

descendants similarly situated,

Plaintiffs-Appellants,

vs.

MARIE RINGROSE, ILDA MeGUINNESS, PIER

GHERINI, FRANCES GHERINI, THE NATURE

CONSERVANCY, a District of Columbia non-profit

corporation, SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER LENNOX VAIL,

JAMES VAIL WILKINSON, NATHAN RUSSELL

VAIL, MARGARET VAIL WOOLLEY, and THE

VICKERS COMPANY, LTD., a California Corporation;

and the STATE OF CALIFORNIA,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Hon. David W. Williams, Senior District Judge, Presiding

Argued and Submitted December 5, 1985—

Pasadena, California

OPINION

(Filed April 29, 1986)

BEFORE: FLETCHER, PREGERSON, and CANBY,

Cireuit Judges.

B-2

FLETCHER, Cireuit Judge :

Plaintiff Chunie, Frances S. Herrera, a Chumash

Indian, and plaintiff the Brotherhood of the Tomol, Inc.,

representing the coastal band of Chumash Indians in its

governmental capacity, appeal the district court’s dis-

missal of their claim for unlawful trespass and conversion

of the Santa Barbara Islands and surrounding channel

beds. The plaintiffs allege that they were never divested

of their aboriginal Indian title to the islands. The indi-

vidually named defendants and the three organizational

defendants claim ownership of the islands. Defendant

State of California claims title to the channel beds sur-

rounding the islands. The district court granted the

defendant’s motion to dismiss, holding that the Chumash

had failed to state a claim for which relief can be granted.

We affirm the holding, although on grounds somewhat

different from those relied upon by the district court.

FACTS

Plaintiff Chunie, Frances S. Herrera, is a Chumash

Indian. She alleges that from time immemorial, the Chu-

mash people have oeeupied the Santa Barbara Islands,

ie., Santa Cruz and Santa Rosa Islands, and the sur-

rounding channel beds. Plaintiff The Brotherhood of

the Tomol, Ine. represents the coastal band of Chumash

Indians in its governmental capacity. Plaintiffs are

hereinafter referred to collectively as the Chumash.

Santa Cruz and Santa Rosa Islands are two of the

channe! islands lying off the Santa Barbara coast, each

covering about 50,000 acres. Spain acquired the islands

by conquest and colonization, and the islands passed to

Mexico when it obtained its independence from Spain.

B-3

In the 1830’s and 1840’s, the Mexican government

granted Santa Rosa Island to Antonio and Carlos Car-

rillo and granted Santa Cruz Island to Andres Castillero.

The individual and organizational defendants claim title

derived from that of the Carrillos and Castillero. The

Chumash contend that the Mexican land grants did not

extinguish aboriginal title and were made subject to the

Indians’ right of occupancy.

The Treaty of Guadalupe Hidalgo, signed on February

2, 1848 and entered into force on May 30, 1848, signaled the

formal end of the Mexican-American War. 9 Stat. 922

(1848). Under the treaty, Mexico ceded California to the

United States, art. V, 9 Stat. at 926, but the Chumash con-

tend the islands were not included in the ceded area. De-

spite this contention, the Chumash argue that the treaty

converted their aboriginal title into recognized title pro-

tected by the fifth amendment.

To settle land clainis in the newly acquired territory,

Congress passed the Act of March 3, 1851, ch. 41, 9 Stat.

631 (1851). The Act created a board of commissioners to

determine the validity of claims, and required every per-

son ‘‘claiming lands in California by virtue of any right

or title derived from the Spanish or Mexican government’’

to present the claim within two years. Castillero, and the

successor-in-interest to the Carrillos, presented claims

which were upheld by the courts. See United States v.

Castillero, 64 U.S. (23 How.) 464 (1860); Manuelo Carrillo

de Jones v. United States (S.D. Cal., Dee. Term. 1855)

(unpublished). The Chumash argue that even if the is-

lands were included in the ceded area, the Act of 1851 did

not apply to Indian claims based on aboriginal title, and

b-4

Indians were excepted from the land confirmation pro-

ceedings.

In addition to claiming an interest in Santa Cruz and

Santa Rosa Islands, tlie Chumash also allege ownership of

the surrounding channel beds. As with the islands, the

Chumash contend they have occupied the channel beds from

time immemorial, that their aboriginal title has never been

extinguished, and that the state did not acquire title to the

channel beds.

The Chumash instituted this suit in district court seek-

ing declaratory relief, damages for trespass and conversion,

injunctive relief, and attorney’s fees. They named as de-

fendants eight individuals and three organizations who

claim interests in Santa Cruz and Santa Rosa Islands, and

the State of California which claims ownership of the

channel beds. On motions by the defendants, the district

court held that the plaintiffs failed to state a claim for

which relief can be granted, and dismissed the action. The

Chumash filed a timely appeal. On the appeal, all parties

request attorney’s fees under 42 U.S.C. § 1988.

DISCUSSION

1. The Mexican government’s grant of Santa Cruz

and Santa Rosa Islands to private individuals did not ex-

tinguish the Indians’ aboriginal title.

Indians’ aboriginal title derives from their presence

on the land before the arrival of white settlers. Tee-Hit-

Ton Indians v. United States, 348 U.S. 272, 279 (1955).

After conquest by European powers, Indians were permit-

ted to occupy territory over which they had previously ex-

ercised “sovereignty.’’ This right is not an ownership

B-5

right, but is rather a right of oceupaney granted by the

conquering sovereign, id., referred to as ‘‘original Indian

title,’’ ‘‘aboriginal Indian title,’’ or simply ‘‘ Indian title.’’

Feliz S. Cohen’s Handbook of Federal Indian Law 487

(1982 ed.) [hereinafter cited as Cohen].' The right is

therefore necessarily a creature of the conquering sov-

ereign’s law. Because the parties have offered no evidence

or argument that the Spanish or Mexican law of aboriginal

title differs from our own, we will assume that it does not.

Aboriginal title entitles the tribes to full use and enjoy-

ment of the surface and mineral estate, and to resources,

such as timber, on the land. See id. at 491. Despite this

right of occupancy, the conquering government acquires

the exclusive right to extinguish Indian title. Johnson v.

M’Intosh, 21 U.S. (8 Wheat.) 543,587 (1823). Extinguish-

ment of aboriginal title does not create a legal obligation

to pay compensation to the Indians. Tee-Hit-Ton, 348

U.S. at 290-91.

Under the principle of Johnson v. M’Intosh, Spain’s

discovery and conquest of the Californias conferred upon

Spain the right as sovereign to extinguish the Indians’

aboriginal title. When Mexico obtained its independence

from Spain, Mexico aequired this right to extinguish ab-

original title. The first issue in the ease at bar is whether

Mexico’s land grants to private individuals constituted such

extinguishment.

The Supreme Court has held that ‘‘an extinguishment

cannot be lightly implied in view of the avowed solicitude

of the Federal Government for the welfare of its Indian

‘ — Indian title differs from recognized Indian title.

seca title exists where Congress by treaty or other agree-

ment has declared that the Indians are to hold the lands per-

manently. Tee-Hit-Ton, 348 U.S. at 277-78; Cohen, supra, at 486.

at BG tere as 5

B-6

wards.’’ United States ex rel. Hualpai Indians v. Santa

Fe Pacific Ratlroad Co., 314 U.S. 339, 354 (1941). Although

the Court in Santa Fe was referring to extinguishment by

the United States government, the same caution may be ap-

plied in analyzing whether the Mexican government extin-

guished aboriginal title.

The methods available to extinguish aboriginal title

have never been explicitly enumerated. The court in John-

son provided that extinguishment could be ‘‘either by pur-

chase or by conquest.’’ 21 U.S. (8 Wheat.) at 587. In Santa

Fe, the court recognized the United States’ right to extin-

guish Indian title “‘whether it be done by treaty, by the

sword, by purchase, by the exercise of complete dominion

adverse to the right of occupancy, or otherwise.’’ 314 U.S. at

347. A grant of Indian-occupied land by the government

to an individual does not, however, constitute extinguish-

ment.

In Johnson v. M’Intosh, the Supreme Court held that

the European discoverers inherited the power to grant

lands oceupied by Indians. 21 U.S. (8 Wheat.) at 574. The

Court recognized, however, that ‘‘[t|hese grants have been

understood by all, to convey a title to the grantees, subject

only to the Indian right of occupancy.’’ Id. (emphasis add-

ed). ¢ \.uer eases have similarly recognized that land grants

were valid to convey the fee, but that the grantee took title

subject to the Indians’ right of occupancy. Beecher v.

Wetherby, 95 U.S. 517, 525 (1877) (‘The grantee, it is true,

would take only the naked fee, and could not disturb the

occupancy of the Indians ....’’); Clark v. Smith, 38 U.S.

(13 Pet.) 195, 201 (1839). The same principle applies to

land grants by foreign sovereigns. See Chouteau v. Mol-

ony, 57 U.S. (16 How.) 203, 289 (1853) (land grants by the

B-7

Spanish governors were made subject to the rights of In-

dian occupancy ).

Based on this rule reaffirmed repeatedly by the Su-

preme Court, the Mexican land grants to Castillero and the

Carrillos did not effect an extinguishment of the Chumash’s

aboriginal title. In holding otherwise, the district court

erred. Castillero and the Carrillos, and their successors-

in-interest, took the islands subject to the Chumash’s right

of occupancy.

2. The Santa barbara Islands were within tlhe terri-

tory ceded by Mexico to the United States under the Treaty

of Guadalupe Hidalgo.”

The Treaty of Guadalupe Hidalgo was signed on Feb-

ruary 2, 1848 and entered into force on May 30, 1848. 9

Stat. 922, TS No. 207. Article V of the treaty defines the

boundary line between the United States and Mexico. 9

Stat. at 926-28. The California coastal islands are not ex-

plicitly mentioned.

The absence of any specific reference in the treaty to

the islands is explained by the fact that the treaty drafters

2 The Chumash contend that the islands were not within

the ceded area, and argue that on a motion to dismiss, the dis-

trict court was obligated to accept this allegation as true. While

the court generally must assume factual allegations to be true,

it need not assume the truth of legal conclusions cast in the

form of factual allegations. See Western Mining Council v. Watt,

643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031 (1981);

United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1097 (9th

Cir., 1976), cert. denied, 429 U.S. 1121 (1977). The interpreta-

tion of a treaty is a question of law and not a matter of fact.

Strong v. United States, 518 F.2d 556, 563 (Ct. Cl.), cert. denied,

423 U.S. 1015 (1975). In light of the Supreme Court’s statement

in United States v. California, discussed infra, this issue is settled

as a matter of law.

DAA le i ah ame ie

B-8

were primarily concerned with the latitudinal boundary

between the two countries. As one historian observed:

‘*In the treaty, as a matter of fact, the territory ceded is not

mentioned. The treaty is content to specify the boundary.”’

Bowman, The Question of Sovereignty Over California’s

Off-Shore Islands, 31 Pac. Hist. Rev. 291, 295 (1962). Af-

ter reviewing available evidence on the question, Bow-

man concludes: ‘‘The territorial consequences were well

understood at the time. ... Neither the United States nor

Mexico has ever contested [the inclusion of the islands as

part of California] .... [T]here seems never to have

been uncertainty of intent or understanding as to the side

of the line on which they lay.’’ Jd. at 301.

Two maps are mentioned in the second paragraph of

article V, with copies attached to the treaty. One map

shows the islands and the other does not, but neither ap-

pears particularly helpful because the maps are included

for specific, limited purposes. The Disturnell map (which

includes the islands) is referred to for the specifie purpose

of identifying ‘“‘the southern and western limits of New

Mexico.’’ 9 Stat. at 926. The Pantoja map (on which no

islands are shown) clarifies the “limit separating Upper

from Lower California’’ in the vicinity of San Diego. Jd. at

927. Although each party argues strenuously in favor of tlie

map supporting its position, neither map is conclusive.

The Supreme Court answered the question in 1978 in

United States v. California, 436 U.S. 32 (1978). At issue in

that case was whether the federal government or the state

had dominion over the submerged lands and waters witiin

the Channel Islands National Monument. The national

monument encompasses two large and many smaller islands

in the same vicinity as the islands at issue in the ease at bar.

B-9

In its discussion, the Court stated: ‘‘Federal title to the

islands can be traced to the 1848 Treaty of Guadalupe

Hidalgo, 9 Stat. 922, by which Mexico ceded to the United

States the islands lying off the coast of California, along

with the adjacent mainland.’’ /d. at 34 n.3.

The Chumash argue this statement is ‘‘mere obiter

dictum,’’ claiming that the queston of inclusion of the

islands within the ceded area was not before the court. Al-

though apparently neither party in United States v. Cali-

forma argued that the islands had been excluded in the ces-

sion, the Court’s statement is definitive. It is an integral

link in the chain by which the Court held that California

exercised dominion over the waters in the national monu-

ment. Had the islands not been ceded to the United States

in 1848, the federal government would have had no auth-

ority to transfer to California dominion over the surround-

ing submerged lands and waters under the Submerged

Lands Act. See id. at 37. The Supreme Court’s statement

in footnote 3 of the opinion is thus part of the Court’s hold-

ing and resolves the question of the islands’ inclusion in the

ceded territory.

3. The Treaty of Guadalupe Hidalgo did not convert

the Chumash’s aboriginal title into recognized title.

—sd

Despite the Chumash’s contention that the Santa Bar-

bara Islands were not included in the territory ceded under

the Treaty of Guadalupe Hidalgo, the Indians claim their

title beeame recognized pursuant to articles VIII and LX of

the treaty. The district court did not address this claim.

Article VIII of the treaty provided that Mexicans ‘‘now

established in territories previously belonging to Mexico,

and which remain for the future within the limits of the

United States’’ could elect either nation’s citizenship, and

ana mmr ee RNIN NN AA See eA a

B-10

if no election were made within one year, would become

United States citizens. 9 Stat. at 929. Under Article LX,

persons not choosing to remain Mexican citizens ‘‘shall...

be admitted ... to the enjoyment of all the rights of citizens

of the United States, according to the principles of the con-

stitution.’’ Jd. at 930. Without citing any relevant auth-

ority, the Chumash state in their opening brief: ‘* Thus, the

aboriginal title of the Chumash Indians to the Islands came

to be recognized by Article VIII and IX of the 1848 Treaty

of Guadalupe Hidalgo.’’

In their briefs, the defendants point out the inconsis-

tencies of the Chumash’s arguments that the treaty did not

convey the islands from Mexico to the United States, but

that it nevertheless did confer citizenship and property

rights on the Chumash. The Chumash explain in their reply

brief that this result is possible because ‘‘ [the Chumash |

regularly commuted between the mainland and Islands... .

{T]he rights conferred by Article[s] VIII and IX [of the

treaty] were applicable to them as people (and not through

inclusion of the Islands in the cession area).’’ They again

cite no authority in support of their position.

The Chumash’s contention is novel and creative, but

does not appear to have any merit. For Indian title to be

recognized, ‘‘Congress, acting through a treaty or statute,

... must grant legal rights of permanent occupancy within

a sufficiently defined territory. ... There must be an in-

tention to accord or recognize a legal interest in the land.”’

Sac and Fox Tribe of Indians v. United States, 315 F.2d

896, 897 (Ct. Cl.), cert. denied, 375 U.S. 921 (1963). We

conclude that the treaty did not convert the Chumash’s

aboriginal title into recognized title.

B-11

4. The Chumash lost all rights in the islands when

they failed to present claims in the land confirmation pro-

ceedings undertaken pursuant to the Treaty of Guadalupe

Hidalgo and the Act of 1851.

To protect property rights of former Mexican citi-

zens in the newly-acquired territory and to settle land

claims, Congress passed the Act of March 3, 1851, ch. 41,

9 Stat. 631. The Act created a board of three commis-

sioners to deterimne the validity of land claims in Cali-

fornia, and required ‘‘every person claiming lands in Cali-

fornia by virtue of any right or title derived from the

Spanish or Mexican government’’ to present his or her

claim to the commissioners within two years. Id. §§1. 8,

13. Appeals from the commissioners’ decisions were per-

mitted to the district court and, ultimately, to the Supreme

Court. Jd. §§ 9, 10. Where a land claim was confirmed, a

federal patent was issued. Jd. 413. A patent was con-

clusive between the patentee and the United States, but

not binding against the interests of third parties with

superior title. Jd. § 15; Barker v. Harvey, 181 U.S. 481,

491 (1901) (citing Peard v. Federy, 70 U.S. (3 Wall.) 478,

492-93 (1866)). Any land not claimed within two years,

and any land for which a claim was finally rejected, was

deemed ‘‘part of the public domain of the United States.”’

Act of 1851, ch. 41, § 13.

The purpose of the Act of 1851 was ‘‘to authenticate

titles, and to afford the solid guarantee to rights which

ensues from their full acknowledgment by the supreme

authority.’’ United States v. Fossatt, 62 U.S. (21 How.)

445, 448 (1859). The goal was ‘‘to place the titles to land

in California upon a stable foundation. and to give the

parties who possess them an opportunity of placing them

AAAI ee ea ARI

B-12

on the records of the country, in a manner and form that

will prevent future controversy.’’ Fremont v. United

States, 58 U.S. (17 How.) 542, 553-54 (1855); accord

Thompson v. Los Angeles Farming and Milling Co., 180

U.S. 72, 77 (1901).

The land grants made by the Mexican government to

Castillero and the Carrillos were confirmed under the

provisions of the Act of 1851. United States v. Castillero,

64 U.S. (23 How.) 464 (1860); Manuelo Carrilio de Jones

v. United States, (S.D. Cal., Dee. Term 1855) (unpub-

lished). The Chumash did not file any claims under the

Act. The Chumash contend, however, that the confirma.

tion of the Mexican grants did not extinguish their ab-

original title because Indians claiming aboriginal rights

were not required to file claims under the Act of 1851.

The Act required persons claiming lands ‘‘by virtue of any

right or title derived from the Spanish or Mexican gov-

ernment’’ to file claims. Because aboriginal title is not

‘‘derived from the Spanish or Mexican government,’’ the

Chumash argue that they were not required to file.

In several cases, the Supreme Court has addressed

the issue of whether Indians were required to file claims

under the Act of 1851. In Barker v. Harvey, 181 U.S. 481

(1901), mission Indians claimed a right of perma-

nent occupancy of lands for which the plaintiffs held con-

firmed patents. The Court held that the Indians lost any

rights they might have had by not presenting claims to the

commissioners under the Act of 1851. Jd. at 491-92. The

precise basis for this holding is not clear. As ‘‘mission

Indians,’’ the defendants apparently claimed a right of

occupancy derived from the Mexican government; in addi-

B-13

tion, one of the land grants included an express condition

that the grantee ‘‘not molest the Indians that thereon may

be established.’’ See id. at 482, 493. Either of these facts

would support the Court’s holding on the basis that the

Indians’ rights were ‘‘derived from the Mexican govern-

ment’? and thus subject to the filing requirement of the

Act of 1851. The Court also concluded that the Indians

had abandoned the lands prior to the cession and there-

fore had no valid right of occupancy. /d. at 499. This

finding would likewise support the Court’s holding ad-

verse to the Indians.

Twenty-three years later the Court reaffirmed the

Barker decision in United States v. Title Insurance and

Trust Co., 265 U.S. 472 (1924). In Title Insurance, mis-

sion Indians claimed a ‘‘ perpetual right’’ to occupy land

which the Mexican government had granted and for which

a confirmed patent had been issued. /d. at 481. The Court

followed its decision in Barker and held that the Indians’

claim was lost by the failure to present it to the commis-

sion. Jd. at 485-86. Although not entirely clear in the opin-

ion, the Court in a later decision observed that the In-

dians in Title Insurance ‘‘claimed an aboriginal right of

oecupancy.’’ See Summa Corp. v. California ex rel, State

Lands Commission, 466 U.S. 198, 208 (1984).

This same’ principle was applied to non-mission In-

dians in Super v. Work, 3 F.2d 90 (D.C. Cir. 1925), aff’d

per curiam, 271 U.S. 6483 (1926). The Court of Appeals

observed that Barker and Title Insurance involved mis-

sion Indians while Super concerned ‘‘Indians [who] were

merely roving bands,’’ 3 F.2d at 91, but found the dis-

tinction irrelevant. The Supreme Court summarily af-

B-14

firmed, citing Parker and Title Insurance as authority.

271 U.S. 643.

In 1984, the Court addressed the State of California’s

obligation under the Act of 1851 to present land claims

to the commission. Summa Corp. v. California ex rel.

State Lands Commission, 466 U.S. 198 (1984). In dispute

were tidelands to which Summa held a confirmed patent

derived from a Mexican land grant. California claimed

it had acquired an interest in the tidelands upon its ad-

mission to the union, and contended that this sovereign

right survived the land confirmation proceedings. Citing

Barker and Title Insurance, the Court held that Califor-

nia’s claim must have been presented in the patent pro-

ceedings or be barred. 7d. at 209. Although the Court in

Summa did not have before it the question of whether In-

dians were required to file claims, the far reaching holding

evidences the Court’s conclusion that the land confirma-

tion proceedings were intended to be all-encompassing.

The Chumash rely primarily on the case of Cramer v.

United States, 261 U.S. 219 (1923). Cramer involved

lands which the Indians had allegedly ‘‘oceupied . . . con-

tinuously since before 1859.’’ and which had been granted

to the defendant’s predecessor pursuant to an 1866 sta-

tute. Jd. at 225. The Court distinguished Parker as a case

involving ‘‘Mission Indians, claiming a right of ocen-

pancy derived from the Mexican Government,’’ and con-

cluded that *‘{t]he Indians here concerned have no such

claim and are not shown to be within the terms of the

Act of 1851 in any respect.’’ 7d. at 251. Although the

Chumash cite Cramer in support of their position, their

reasoning fails. The Cramer court observed that the In-

B-15

dians therein had occupied the land ‘‘since before 1859,’’

but there is no evidence the Indians occupied the land

when the Treaty was signed in 1848 or when the land con-

firmation act was enacted in 1851. This explains the

Court’s remark that the Cramer Indians “are not shown

to be within the terms of the Act of 1851 in any respect.’’

If the Indians in Cramer did not oceupy the lands in 1851,

it follows that the Act of 1851 would not apply to them.

Cramer does not, therefore, support the Chumash’s posi-

tion.

Given the line of Supreme Court decisions recogniz-

ing the extensive reach of the Act of 1851, we conclude

that the district court correctly held that the Chumash,

claiming a right of occupancy based on aboriginal title,

lost all rights in the land when they failed to present a

claim to the commissioners. When Andres Castillero and

Manuelo Carrillo de Jones filed claims with the commis-

sioners based on their land grants from the Mexican gov-

ernment, and had their titles confirmed and received fed-

eral patents to their lands, they were entitled to believe

that adverse claims to their lands had been eliminated.

This result comports with the overriding purpose of the

Act of 1851 ‘‘to place the titles to land in California upon

a stable foundation ... in a manner and form that will

prevent future controversy.’’ Fremont v. United States,

58 U.S. (17 How.) 542, 553-54 (1855).

5. The Chumash do not possess any interest in the

channel beds surrounding Santa Cruz and Santa Rosa

Islands.

In addition to claiming rights in Santa Cruz and

Santa Rosa Islands, the Chumash also claim rights in the

B-16

surrounding tidelands and submerged lands — the chan-

nel beds.’ They allege that the State of California has

unlawfully trespassed on the channel beds, has unlawfully

leased the right to take minerals therefrom, and has con-

verted the proceeds to its own use.

The Supreme Court has held that claims to tidelands

and submerged lands were cognizable under the Act of

1851. See Summa, 466 U.S. at 205; United States v. Coro-

nado Leach Co., 255 U.S. 472, 487-88 (1921). Thus, by

failing to present a claim to the commissioners, the Chu-

mash lost all rights in the channel beds as well as in the

islands themselves.‘

6. Principles of international law do not provide

additional support for the Chumash’s claims.

In addition to basing their claims on the United

States Constitution, federal statutes and regulations, and

° The Chumash in their complaint allege title to Santa Cruz

and Santa Rosa Islands “and surrounding channel beds,” but

do not define “surrounding channel beds.” The State of Cali-

fornia in its brief states: “For purposes of this brief, California

assumes that [the term “surrounding channel beds” ] mean|s]

the tidelands or the Pacific Ocean within three geo-

— miles seaward from the coastline of Santa Cruz and

nta Rosa Islands.” Because the Chumash do not refute this

assumption in their reply brief, we accept this assumption. The

terms “channel beds,” “tidelands,” and “submerged lands’

are used interchangeably by the parties and in this opinion.

¢ The parties present a variety of arguments on this issue

based on other statutory and case authority, including the equal

footing doctrine, the Submerged Lands Act, the Indian Non-

Intercourse Act, the Northwest Ordinance of 1787, the 1928

jurisdictional Act and the Indians of California cases in the

Court of Claims, and the Indian Claims Commission Act and

the case of Thompson v. United States brought as a representative

action on behalf of the “Indians of California.” Because the

authorities discussed above dispose of this issue, we need not

consider these additional arguments.

B-17

the Treaty of Guadalupe Hidalgo, the Chumash state that

their case arises under ‘‘international law relating to the

construction of treaties, determination of boundaries, and

state succession, as incorporated by federal common law.’’

In. their briefs, the Chumash cite a variety of international

law authorities including’ the Charter of the United Na-

tions; the International Bill of Human Rights consisting

of the Universal Declaration of Human Rights, the Inter-

national Covenant on Civil and Political Rights, and the

International Covenant on Economic, Social, and Cultural

Rights; the American Convention on Human Rights; the

American Declaration of Rights and Duties of Man; and

the Vienna Convention on the Law of Treaties.

Based on our conclusion that the Chumash lost any

rights in the islands by not filing claims under the Act of

1851, we need not address these additional arguments. In

Barker v. Harvey, 181 U.S. 481 (1901), in which the Court

held that mission Indians lost their rights by not present-

ing claims to the commissioners, the Court mentioned the

role of international law:

Undoubtedly by the rules of international law, and

in accordance with the provisions of the treaty be-

tween the Mexican government and this country, the

United States were bound to respect the rights of pri-

vate property in the ceded territory. But such obli-

gation is entirely consistent with the right of this

Government to provide reasonable means for deter-

mining the validity of all titles within the ceded ter-

ritory, to require all persons having claims to lands

to present them for recognition, and to decree that all

claims which are not thus presented shall be con-

sidered abandoned.

Id. at 486-87. The Supreme Court thus concluded that the

requirements imposed by the Act of 1851 were consistent

~B-18

with rules of international law. Furthermore, all the in-

ternational law authorities cited by the Chumash were

adopted since 1945, and therefore cannot logically affect

the operation of the Act of 1851. Principles of interna-

tional law do not warrant changes in any of the foregoing

analysis.

7. The defendants are not entitled to an award of

attorney’s fees on this appeal.

All parties seek attorney’s fees on appeal under 42

U.S.C. § 1988.- Although attorney’s fees may be awarded

at the appellate as well as the trial level, Sotomura v.

County of Hawaii, 679 F.2d 152 (9th Cir. 1982), a pre-

vailing defendant is entitled to an award of fees only

where the plaintiff’s action was ‘‘frivolous, unreasonable,

or without foundation.’’ Hughes v. Rowe, 449 U.S. 5, 14

(1980) (quoting Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 421 ‘1978)); Jensen v. Stangel, 762 F.2d

815, 817 (9th Cir. 1985). The Chumash raise issues not

previously addressed by the courts, and their case cannot

be characterized as frivolous or unreasonable. We there-

fore deny all requests for attorney’s fees.

AFFIRMED.

C-1

APPENDIX C

AUG 14 1986

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-5508

DC CV 84-4144-DWW

UNITED STATES OF AMERICA, es rel

CHUNIE (FRANCES 8S. HERRERA), et al.,

Plaintiffs/Appellants,

MARIE RINGROSE, ILDA McGUINNESS, PIER

GHERINI, FRANCES GHERINI, THE NATURE

CONSERVANCY, et al.,

Defendants / Appellees.

JUDGMENT

APPEAL from the United States District Court for the

Jentral District of California.

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for the

Central District of California and was duly submitted.

ON CONSIDERATION WHEREOFP, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby is af-

firmed.

Filed and entered April 29, 1986.

Costs taxed in the amount: $385.50

D-1

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85 5508

D.C. No. CV 84-4144-DWW

UNITED STATES OF AMERICA, ex rel.

CHUNIE ((FRANCES S. HERRERA), THE

BROTHERHOOD OF THE TOMOL, INC.,

a California corporation, and all

Chumash descendants similarly

situated,

Plaintif fs-Appellants,

Vs. ;

MARIE RINGROSKE, ILDA MeGUINNESS,

PIER GHERINI, FRANCES GHERINI, THE

NATURE CONSERVANCY, a District of

Columbia non-profit corporation,

SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER

LENNOX VAIL, JAMES VAIL WILKINSON,

NATHAN RUSSELL VAIL, MARGARET VAIL

WOOLLEY, and THE VICKERS COMPANY,

LTD., a California Corporation;

and the STATE OF CALIFORNIA,

Defendants-Appellees.

ORDER AMENDING OPINION

(Filed May 5, 1986)

Before: FLETCHER, PREGERSON, and CANBY, Cir-

cuit Judges.

The following language is substituted in the opinion

filed April 29, 1986, in place of page 15, lines 12-20 (‘‘The

Cramer ... position.’’)

D-2

The Cramer court observed that the Indians in the

case before it did not derive their claims from the Span-

ish or Mexican governments, and that there was no

showing that they had occupied the land as early as

1848, when the Treaty was signed, or 1851, when the

land confirmation act was enacted. Jd. These facts ex-

plain the court’s remark that the Cramer Indians ‘‘are

not shown to be within the terms of the Act of 1851 in

any respect.’’ The Chumash, unlike the Cramer In-

dians, do derive their claim from a right of oceupancy

existing under Spanish or Mexican law, and their right

existed well before 1848.

ee ee ee eee

ov ae

E-1

APPENDIX E

Case No.: 85-5508

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ex rel.

CHUNIE (FRANCES S. HERRERA); THE

BROTHERHOOD OF THE TOMOL, INC.,

a California non-profit corporation, and all |

Chumash descendants similarly situated,

Plaintiffs-Appellants,

VS.

MARIE RINGROSE, [LDA MCGUINNES,

PIER GHERINI, FRANCES GHERINI, THE

NATURE CONSERVANCY, a District of

Columbia non-profit corporation,

SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER

LENNOX VAIL, JAMES VAIL WILKINSON,

NATHAN RUSSEL VAIL, MARGARET VAIL

WOOLEY, and THE VICKERS COMPANY,

LTD., a California corporation; and

the STATE OF CALIFORNIA,

Defendants-A ppellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF CALIFORNIA

Honorable David W. Williams, Presiding

PETITION OF PLAINTIFFS-APPELLANTS UNITED

STATES OF AMERICA EX REL. CHUNIE,

(FRANCES 8, HERRERA) ET AL., FOR REHEARING

MARIO GONZALEZ, ESQ.

P.O. Box 334

Blackhawk, SD 57718

SIDNEY C. FLORES, ESQ.

FLORES, LUNA & BARRIOS

95 So. Market Street, Suite 250

San Jose, CA 95113

Telephone: (408) 292-3400

Attorneys for Plaintiffs/

Appellants

* *

E-2

Case No.: 85-5508

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ex

rel. CHUNIE (FRANCES S.

HERRERA); THE BROTHERHOOD OF

THE TOMOL, INC., a California

non-profit corporation, and all

Chumash descendants similarly situated,

Plaintiffs-Appellants,

vs.

MARIE RINGROSE, ILDA McGUINNESS,

PIER GHERINI, FRANCES GHERINI,

THE NATURE CONSERVANCY, a Dis-

trict of Columbia non-profit

corporation, SANTA CRUZ ISLAND

COMPANY, a California corporation,

ALEXANDER LENNOX VAIL, JAMES

VAIL WILKINSON, NATHAN RUSSEL VAIL,

MARGARET VAIL WOOLLEY, and THE

VICKERS COMPANY, LTD., a California

Corporation; and the STATE OF CALIFORNIA,

Defendants-Appellees.

D.C. No. CV 84-4144DWW

PETITION OF PLAInNTIFFS-APPELLANTS UNITED

STATES OF AMERICA EX REL. CHUNIE,

ET. AL. FOR REHEARING

TO: THE CLERK OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT:

Petitioners United States of America Ex Rel. Chunie,

et al., (hereinafter ‘‘the Chumash’’) hereby petition the

United States Court of Appeals for the Ninth Circuit for

a rehearing in the above-captioned appeal pursuant to

ae =m Pe ne

E-3

Rule 40 of the Federal Rules of Appellate Procedure. The

grounds for this petition are set forth in the Argument

below.

INTRODUCTION

The undersigned counsel for Petitioners hereby states

a belief, based on a reasoned and studied professional

judgment, that: (1) material facts and law were over-

looked in the Appeal Panel’s April 29, 1986 Opinion, as

amended by the May 5, 1986 Order Amending Opinion,

and (2) the findings of the Appeal Panel in regards to

the factual situation in the Cramer case is contrary to the

facts found in the Ninth Cireuit’s opinion in that case.

ARGUMENT

1. THE CHUMASH’S ABORIGINAL TITLE SUR-

VIVED THE 1848 MEXICAN CESSION AND WAS

RECOGNIZED UNDER AMERICAN LAW WHEN

THE 1851 ACT WAS PASSED; THEIR TITLE IS

THEREFORE IDENTICAL TO THE ABORIGINAL

TITLE ASSERTED BY THE INDIANS IN THE

CRAMER CASE.

The Appeal Panel indicated that if the Chumash In-

dians were in a similar circumstance to the California In-

dians in Cramer v. United States, 261 U.S. 219 (1923),

they would not be subject to the land confirmation pro-

ceedings under the 1851 Act. 9 Stat. 631. The Appeal

Panel distinguished Cramer on the basis that ‘‘Cramer

involved lands which the Indians allegedly ‘occupied ....

continuously since before 1859.’ and which had_ been

granted to the defendant’s predecessor pursuant to an 1866

statute’? and did not claim ‘‘a right of occupancy derived

K-4

- from the Mexican Government’’ as did the Indians in

Barker v. Harvey, 181 U.S. 481 (1901). See United States

of America ex rel. Chunte v. Ringrose, Slip Opinion No.

85-5508 (9th Cir., April 29, 1986), p. 15. Thus, the Appeal

Panel concluded in an order amending its Opinion that

the Chumash are different and distinguishable from the

Cramer Indians and subject to the 1851 Act:

The Cramer court observed that the Indians in the

ease before it did not derive their claims from the

Spanish or Mexican Governments, and that there was

no showing that they had occupied the land as early

as 1848, when the Treaty was signed, or 1851, when

the land confirmation act was enacted. Jd. These

facts explain the court’s remark that the Cramer In-

dians ‘are not shown to be within the terms of the

Act of 1851 in any respect.’ The Chumash, unlike

the Cramer Indians, do derive their claim from a right

of occupancy existing under Spanish or Mexican law,

and their right existed well before 1848, [Emphasis

Supplied].

See United States of America ex rel. Chunie v. Ringrose,

Order Amending Slip Opinion No. 85-5508 (9th Cir., May

5, 1986).

In making its finding that the Chumash are unlike the

Cramer Indians because their right of occupancy existed

well before 1848 and is derived from Spanish or Mexican

law, the Appeal Panel overlooked important material facts

alleged in the Chumash’s Amended Complaint that ‘‘ [from

time immemorial, the Chumash people have occupied the

islands and surrounding channel beds,’’ that “[e]ach and

every part of this territory was used for and was essential

to the subsistence and religious observances of the Chumash

people,’’ and that the Chumash ‘‘continue to hold . . . unex-

E-5

tinguished aboriginal Indian title . . . to the subject lands

and territory wp to and including the date of filing this

amended complaint.’’ [Emphasis Supplied].

For purposes of a Rule 12 (b) (6) motion, these ma-

terial allegations of fact should have been accepted as true.

Western Mining Council v. Watt, 643 F.2d 618, 624 (9th

Cir.), cert. denied, 454 U.S. 1081; United States v. Tulare —

Lake Canal Co., 535 F.2d 1093, 1097 (9th Cir. 1976), cert.

denied, 429 U.S. 1121 (1977). These material facts are con-

trary to the Appeal Panel’s finding that Chumash aborig-

inal title was frozen as of 1848 when the Treaty of Guad-

alupe Hidalgo (9 Stat. 922) went into effect and that Chu-

mash aboriginal title is therefore derived from Spanish or

Mexican law. These facts in the Amended Complaint indi-

cate that Chumash aboriginal title continued subsequent to

the 1848 Act under the laws of the United States and were

recognized and derwed from the Laws of the United States

when the 1851 Act was passed, i.e., between 1848 and 1851.

See United States v. Santa Fe Pacific Railroad Co., 314 U.S.

339, 342 (1941) (‘‘Recognition of Indian possessory rights

by a prior sovereign, such as ... Mexico, and Spain, is not

essential to the validity of such rights under the laws of the

United States’’).

Moreover, the findings of the Appeal Panel in regards

to the facts in the Cramer case are also in apparent conflict

with the findings of fact in the Ninth Circuit’s decision in

Cramer where the United States asserted ‘‘that for years

prior to 1904 and from time immemorial the Indians oc-

cupied and claimed the [disputed] lands.’’ After stating

this fact, the court found that ‘‘[t]his case affeets two in-

dividual Indians, remnants of a band that since 1859 have

lived in a small valley in Siskiyou County, California. The

E-6

Indians have occupied and cultivated and enclosed certain

of the lands involved.’’ [Emphasis Supplied]. What the

court found was that the band the Cramer Incians belonged

to claimed aboriginal title to the territory in which thie

lands are located, but that two individual members of the

band began oceupying the particular tracts within the ab-

original territory area since at least 1859. Cramer v.

United States, 276 I. 78, 79 (9th Cir. 1921). These facts are

on all fours with the facts asserted by the Chumash.

As noted in the Chumash’s Reply Brief, p. 6 n. 5. ‘*In

this case plaintiffs are claiming both individual aboriginal

title and aboriginal title as a band.’’ Thus, like the Cram. ~

Indians, the Chumash assert that, as a band, they have ab-

original title to the area involving Santa Cruz and Santa

Rosa Islands and surrounding Channel beds and that in-

dividual members of the Tribe are presently occupying por-

tions of the Islands and channel beds area for subsistence

and religious purposes.

Thus, the facets involving the Chumash are identical to

the faets in the Cramer case insofar as they relate to in-

dividual aboriginal title. They are also identical to the

facts in United States v. Dann, 706 F.2d 919 (9th Cir. 1983),

where the court found that a group of Western Shoshone

Indians retained aboriginal title to a tract of land within

the 1848 Mexican cession area and could assert it as a de-

fense in a trespass action. Jd. at 933.

E-7

Il. THE APPEAL PANEL’S INTERPRETATION OF

THE 1851 ACT AS EXTINGUISHING CHUMASH

ABORIGINAL TITLE BY FAILURE TO CONFIRM

SUCH TITLE UNDER THE 1851 ACT IS CON.

TRARY TO THE RULES OF STATUTORY CON-

STRUCTION THAT VAGUE AND AMBIGUOUS

STATUTES REGARDING INDIANS MUST BE

LIBERALLY CONSTRUED AND INTERPRETED

IN THEIR FAVOR. a

It is clear that the 1851 Act contains no language ex

pressly extinguishing the aboriginal title of the Chumas!

Indians and that, in so far as it requires Indians claiming

aboriginal t ie to perfect land claims with the 1851 Land

Commission, it is vague and ambiguous. In construing the

Act, the Appeal Panel strictly construed it against the

Chumash. This is contrary to Ninth Cireuit decisions, that

statutes regarding Indians are to be construed liberally in

their favor. See e.g., United Slates v. Dann, 706 F.2d 919,

931 (9th Cir. 1983). Accord, White Mountain Apache Tribe

v. Brackey, 65 L.Ed.2d 665, 673 (1980).

There is no question that the 1851 Act as it pertains to

Indians is vague and ambiguous. See United States v. Gem-

mill, 5385 F.2d 1145, 1149 (9th Cir. 1976) (1851 Act referred

to by the Ninth Cireuit as ‘‘ambiguous Act of 1851)."’

Thus, the Appeal Panel should have applied the rule ‘‘that

doubtful expressions, instead of being resolved in favor of

the United States, are to be resolved in favor of a weak and

defenseless people, who are wards of the nation, and de-

pendent whe ly upon its protection and good faith.’’ United

States v. Santa Fe Pacific RR. Co. 314 US. 339, 354 (1941)

(quoting Choate v. Trapp, 224 U.S, 665, 675 (1912)).

Under the rule of liberal construction, the Appeal Panel

should have construed the 1851 Act in favor of the Chu

E-8

mash. Under this rule, the Appeal Panel could not have

found that the Chumash’s aboriginal title was subject to the

land confirmation proceedings under the 1851 Act. First,

an intent to extinguish must be expressed and cannot be

lightly implied. United States v. Dann, 706 F.2d 919 (9th

Cir. 1983), rev. on other grounds, 105 S.Ct. 1058 (1985)

(citing United States v. Santa Fe R.R. Co., 314 U.S. at 354).

No such expression on the part of Congress exists in the

Act. Secondly, construing the Act liberally in favor of the

Indians, the Appeal Panel would have had to find that the

Chumash were not subject to the land confirmation pro-

ceedings under the 1851 Act since:

(1) They were wards of the United States Govern-

ment in 1851. See Cramer v. United States, 262 U.S. 219,

232 (1922) (“Indian tribes are wards of the nation, —com-

munities dependent on the nation’’.) There is a fiduciary

duty on the part of the United States to protect its wards.

Seminole Natwn v. United States, 316 U.S. 286, 297 (1942)

(Courts have imposed the fudiciary obligation of a private

trustee on United States when dealing with Indians) ;

Navajo Tribe v. United States, 364 F.2d 320, 322-24 (Ct.CL

1966) (The United States, when administering Indian

property, is bound by the same principals of law as it be

applied to an ordinary fiduciary). The 1851 Act must be

construed in light of these fiduciary obligations. Since the

United States world have had a duty of loyalty to the Chu-

mash to protect their aboriginal title in 1851, the Federal

Panel should not have construed the 1851 Act as arbitrarily

abrogating this duty without regard to the Government's

Indian wards.

(2) Their aboriginal title clearly survived the 1848

Cession, see United States v. Santa Fe Pacific R.R. Co., 314

E-9

U.S. 339, 345 (1941) (‘lands within the Mexican Cession

were not excepted from the policy to respect Indian right

of oceupancy’’), and was consequently recognized during

the period of 1848 to 1851 under the laws of United States.

(3) The intent of the 1851 Act was to ‘‘quiet title.’’

See, United States v. Title Insurance & Trust Co., 44 S.Ct.

621, 622 (1924) (land confirmation proceedings referred to

as quiet title action). Since a quiet title action is in effect a

conveyance of land, Congress could not have intended the

1851 Act to effectuate an extinguishment of aboriginal In-

dian title when it is remembered that the Supreme Court

unequivocally stated that aboriginal title ‘‘is not a right to

be transferred but extinguished’’ and that ‘‘[i]t is a right

regulated by treaties, not by deed of convevance.’’ Fletcher

v. Pack, 10 U.S. (6 Cranch) 87, 121 (1810). The recognized

means of extinguishing the title of the Chumash in 1851

was by treaty with their consent. See 25 U.S.C. 177, the

statute which governed the extinguishment of Indian title

in 1877 required the consent of the Indians; this statute

expressly provided that “other conveyances of Indian

land’’ such as quiet title actions under the 1851 Act, would

not “be of any validity in law or equity.’”'

'The rule that aboriginal Indian title could be extinguished

unilaterally by express act of Congress without compensation

[see Tee-Hit-Ton Indians v. United States, 75 S.Ct. 313 (1954) ]

did not come into being until 1903 when the case of Lone Wolf

v. Hitchcock, 187 U.S. 553 (1903) held that Congress has plenary

power over Indian affairs. Prior to Lone Wolf, the means of

extinguishing aboriginal Indian title was by treaty or convention

under 25 U.S.C. 177. Compare, e.g., the Act of July 27, 1866

(14 Stat. 292), quoted in United States v. Santa Fe Pacific R.R.,

314 US. at 343, which provided that “The United States chall

extinguish, as rapidly as may be consistent with public policy

and the welfare of the Indians, and only with their voluntary

cession” the Indian title to all lands falling under the operation

of this act...” [Emphasis Supplied].

E-10

CONCLUSION

Based on the fo’egoing argument, the Chumash re-

spectfully request that their petition for rehearing be

granted.

RESPECTFULLY SUBMITTED,

SIDNEY C, FLORES

95 South Market Street

Suite 250

San Jose, CA 95113

MARIO GONZALEZ

P. O. Box 334

Blackhawk, SD 57718

By: /s/ SIDNEY C. FLORES

Attorney for Appellant

UNITED STATES OF AMERICA, ex. rel., et al. v. Ring-

rose et al.

Case No.: 85-5508

CERTIFICATE OF SERVICE

I, the undersigned, say:

I am an active member of the State Bar of California

and of the United States Court of Appeals, Ninth Cir-

cuit, and am not a party to the above-entitled action. My

‘business address is 95 South Market Street, Suite 250,

San Jose, California 95113.

I had the foregoing documents served on the below-

listed parties to this action by depositing same in the

United States mail at San Jose, California, on May 19,

1986, enclosed in a sealed envelope and with first class

postage prepaid thereon:

E-11

JAMES DUFF MURPHY

THORPE, SULLIVAN, WORKMAN & THORPE

601 West Fifth Street

Los Angeles, CA 90071-2094

CHRISTOPHER M. WESTOFF

WESTOFF, KAZEMZADEH, JACOBS

NEFAS & MacMILLAN

1717 Walnut Grove Avenue

Rosemead, CA 91770

ROBERT E. WILLETT

O’MELVNY & MEYERS

400 South Hope Street

Los Angeles, CA 90071-2899

JILL SLATER

LATHAM & WATKINS

555 South Flower Street

Los Angeles, CA 90071

BRUCE FLUSHMAN

STATE LANDS COMMISSION

Department of Justice, Room 6000

350 MeAllister Street

San Franciso, CA 94102

HONORABLE DAVID W. WILLIAMS

U.S. District Courthouse

federal Building

Los Angeles, CA 90012

/s/ Sidney C. Flores, Esq.

Attorney for Appellant

F-1.

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-5508

D.C. No. CV 84-4144-DWW

UNITED STATES OF AMERICA, ex rel.

CHUNIE (FRANCES 8S. HERRERA), THE

BROTHERHOOD OF THE TOMOL, INC.,

a California corporation, and all

Chumash descendants similarly situated,

Plaintiffs-Appellants.

vs.

MARIE RINGROSE, ILDA MeGUINNESS,

PIER GHERINI, FRANCES GHERINI, THE

NATURE CONSERVANCY, a District of

Columbia non-profit corporation,

SANTA CRUZ ISLAND COMPANY, a

California corporation, ALEXANDER

LENNOX VAIL, JAMES VAIL WILKINSON,

NATHAN RUSSEL VAIL, MARGARET VAIL

WOOLLEY, and THE VICKERS COMPANY,

LTD.., a California Corporation;

and the STATE OF CALIFORNIA,

Defendants-Appellees.

ORDER

(Filed August 6, 1986)

Before: FLETCHER, PREGERSON and CANBY, Cir-

cuit Judges

The petition for rehearing is denied.

G-1

APPENDIX G

TREATY OF FEBRUARY 2, 1848

WITH THE REPUBLIC OF MEXICO

In the name of Almighty God:

‘The United States of America and the United

Mexican States, animated by a sincere desire to put

an end to the calamities of the war which unhappily

exists between the two republics, and to establish upon

a solid basis relations of peace and friendship, which

shall confer reciprocal benefits upon the citizens of

both, and assure the concord, harmony, and mutual

confidence wherein the two people should live, as

good neighbors, have for that purpose appointed their

respective plenipotentiaries—that is to say, the Presi-

dent of the United States has appointed Nicholas P.

Trist, a citizen of the United States, and the Presi-

dent of the Mexican republic has appointed Don Luis

Gonzaga Cuevas, Don Bernado Couto, and Don Miguel

Atristain, citizens of the said republic, who, after a

reciprocal communication of their respective full

powers, have, under the protection of Almighty God,

the author of peace, arranged, agreed upon, and

signed the following:

Treaty of Peace, Friendship,

Limits; and Settlement between

the United States of America

and the Mexican Republic.

* * * * *

ARTICLE VIII.

Mexicans now established in territories previously

belonging to Mexico, and which remain for the future with-

in the limits of the United States. as defined by the present

treaty, shall be free to continue where they now reside,

or to remove at any time to the Mexican republic, retain-

G-2

ing the property which they possess in the said territories,

or disposing thereof, and removing the proceeds wher-

ever they please, without their being subjected, on this

account, to any contribution, tax, or charge whatever.

Those who shall prefer to remain in the said terri-

tories, may either retain the title and rights of Mexican

citizens, or acquire those of citizens of the United States.

But they shall be under the obligation to make their elec-

tion within one year from the date of the exchange of rati-

fications of this treaty; and those who shall remain in

the said territories after the expiration of that year, with-

out having declared their intention to retain the character

of Mexicans, shall be considered to have elected to become

citizens of the United States.

In the said territories, property of every kind, now

belonging to Mexicans not established there, shall be in-

violably respected. The present owners, the heirs of these,

and all Mexicans who may hereafter acquire said proper-

ty by contract, shall enjoy with respect to it guaranties

equally ample as if the same belonged to citizens of the

United States.

ARTICLE IX.

Mexicans who, in the territories aforesaid, shall not

preserve the character of citizens of the Mexican republic,

conformably with what is stipulated in the preceding

article, shall be incorporated into the Union of the United

States, and be admitted at the proper time (to be judged

of by the Congress of the United States) to the enjoyment

of all the rights of citizens of the United States, according

to the principles of the constitution; and in the meantime

G-3

shall be maintained and protected in the free enjoyment

of their liberty and property, and secured in the free

exercise of their religion without restriction.

ARTICLE X.

[Stricken out. ]

H:1

APPENDIX H

CHAP. XII — An Act to ascertain and settle the private

Land Claims in the State of California.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress as-

sembled, That for the purpose of ascertaining and settling

private land claims in the State of California, a commis-

sion shall be, and is hereby, constituted, which shall con-

sist of three commissioners, to be appointed by the Presi-

dent of the United States, by and with the advice and con-

sent of the Senate. which commission shall continue for

three years from the date of this act, unless sooner dis-

continued by the President of the United States.

See. 2. nd be it further enacted, That a secretary,

skilled in the Spanish and English languages, shall be

appointed by the said commissioners, whose duty it shall

be to act as interpreter, and to keep a record of the pro-

ceedings of the board in a bound book. to be filed in the

office of the Secretary of the Interior on the termination

of *1e commission.

See. 3. And be it further enacted, That such clerks,

not to exceed five in number, as may be necessary, shall

be appointed by the said commissioners.

Sec. 4. And be it furtier enacted, That it shall be

lawful for the President of the United States to appoint an

agent learned in the law, and skilled in the Spanish and

English languages, whose special duty it shall be to super-

intend the interests of the United States in the premises,

to continue him in such agency as long as the public in-

terest may, in the judgment of the President, require his

H-2

continuance, and to allow him such compensation as the

President shall deem reasonable. It shall be the duty of-

the said agent to attend the meetings of the board, to col-

lect testimony in behalf of the United States, and to at-

tend on all occasions when the claimant, in any case be-

fore the board, shall take depositions; and no deposition

taken by or in behalf of any such claimant shall be read

in evidence in any case, whether before the commissioners,

or before the District or Supreme Court of the United

States, unless notice of the time and place of taking the

same shall have been given in writing to said agent, or to

the district attorney of the proper district, so long before

the time of taking the deposition as to enable him to be

present at the time and place of taking the same, and like

notice shall be given of the time and place of taking any

deposition on the part of the United States.

See. 5. And be it further enacted, That the said com-

missioners shall hold their sessions at such times and

places as the President of the United States shall direct,

of which they shall give due and public notice; and the

marshal of the district in which the board is sitting shall

appoint a Geputy, whose duty it shall be to attend upon

the said board, and who shall receive the same compensa-

tion as is allowed to the marshal for his attendance upon

the District Court.

Sec. 6. And be it further enacted, That the said com-

missioners, when sitting as a board, and each commissioner

at his chambers, shall be, and are. and is hereby, autho-

rized to administer oaths, and to examine witnesses in any

ease pending before the commissioners, that all such

testimony shall be taken in writing, and shall be recorded

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and preserved in bound books to be provided for that pur-

pose.

See. 7. And be it further enacted, That the secre-

tary of the board shall be, and he is hereby, authorized

and required, on the application of the law agent or dis-

trict attorney of the United States, or of any claimant

or his counsel, to issue writs of subpoena commanding the

attendance of a witness or witnesses before the said board

or any commissioner.

Sec. 8 <And be it further enacted, That each and

every person claiming lands in California by virtue of

any right or title derived from the Spanish or Mexican

government, shall present the same to the said commis-

sioners when sitting as a board, together with such docu-

mentary evidence and testimony of witnesses as the said

claimant Yelies upon in support of such claims; and it shall

be the duty of the commissioners, when the case is ready

for hearing, to proceed promptly to examine the same upon

such evidence, and upon the evidence produced in behalf

of the United States, and to decide upon the validity of the

said claim, and, within thirty days after such decision is

rendered, to certify the same, with the reasons on which it

is founded to the district attorney of the United States in

and for~ the district in which such decision shall be

rendered.

See. 9. And be it further enacted, That in all eases

of the rejection or confirmation of any claim by the board

of commissioners, it shall and may be lawful for the

claimant or the district attorney, in behalf of the United

States, to present a petition to the District Court of the

‘istrict in which the land claimed is situated, praving the

att

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said court to review the decision of the said commissioners,

and to decide on the validity of such claim; and such pe-

tition, if presented by the claimant. shall set forth fully

the nature of the claim and the names of the original and

present claimants, and shall contain a deraignment of the

claimant’s -title, together with a transcript of the report

of the board of commissioners, and of the documentary

evidence and testimony of the witnesses on which it was

founded; and such petition, if presented by the district

attorney in behalf of the United States, shall be accompa-

nied by a transcript of the report of the board of com-

missioners, and of the papers and evidence on which it

was founded, and shall fully and distinctly set forth the

grounds on which the said claim is alleged to be invalid,

a copy of which petition, if the same shall be presented by

a claimant, shall be served on the district attorney of the

United States, and, if presented in behalf of the United

States, shall be served on the claimant or his attorney;

and the party upon whom such service shall be made shall

be bound to answer the same within a time to be pre-

scribed by the judge of the District Court; and the answer

of the claimant to such petition shall set forth fully the

nature of the claim, and the names of the original and

present claimants. and shall contain a deraignment of

the claimant’s title; and the answer of the district attorney

in behalf of the United States shall fully and distinctly

set forth the grounds on which the said claim is alleged

to be invalid, copies of which answers shall be served upon

the adverse party thirty days before the meeting of the

court, and thereupon, at the first term of the court there-

after, the said case shall stand for trial, unless, on cause

shown, the same shall be continued by the court.

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Sec. 10. And be it further enacted, That the District

Court shall proceed to render judgment upon the pleadings

and evidence in the case, and upon such further evidence

as inay be taken by order of the said court, and shall, on ap

plication of the party against whom judgment is rendered,

grant an appeal to the Supreme Court of the United States,

on such security for costs in the District and Supreme

Court, in case the judgment of the District Court shall be

affirmed, as the said court shall prescribe; and if the court

shall be satisfied that the party desiring to appeal is unable

to give such security, the appeal may be allowed without

security.

Sec. 11. And be it further enacted, That the commis-

sioners herein provided for, and the District and Supreme

Courts, in deciding on the validity of any claim brought be-

fore them under the provisions of this act, shall be governed

by the treaty of Guadaloupe Hidalgo, the law of nations,

the laws, usages, and customs of the government from whiel:

the claim is derived, the principles of equity, and the de-

cisions of the Supreme Court of the United States, so far as

they are applicable.

Sec. 12. And be it further enacted, That to entitle

either party to a review of the proceedings and decision of

the commissioners hereinbefore provided for, notice of the

intention of such party to file a petition to the District

Court shall be entered on the joyynal or record of proceed-

ings of the commissioners within sixty days after their

decision on the claim has been made and notified to the

parties, and such petition shall be filed in the District Court

within six months after such decision has been rendered.

See. 13. And be it further enacted, That all lands, the

claims to which have been finally rejected by the commis-

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sioners 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 said commissioners within two years after the date

of this act, shall be deemed, held, and considered as part of

the public domain of the United States; and for all claims

finally confirmed by the said commissioners, or by the said

District or Supreme Court, a patent shall issue to the claim.

ant upon his presenting to the general land office an authen-

tie certificate of such confirmation, and a plat or survey of

the said land, duly certified and approved by the surveyor-

general of California, whose duty it shall be to cause all

private claims which shall be finally confirmed to be ac-

curately surveyed, and to furnish plats of the same; and in

the location of the said claims, the said surveyor-general

shall have the same power and authority as are conferred

on the register of the land office and receiver of the public

moneys of Louisiana, by the sixth section of the act ‘‘to

create the office of surveyor of the public lands for the

State of Louisiana,’’ approved third March, one thousand

eight hundred and thirty-one: Provided, always, That if the

title of the claimant to such lands shall be contested by any

other person, it shad and may be lawful for such person to

present a petition to the district judge of the United States

for the district in which the lands are situated, plainly and

distinetly setting forth his title thereto, and praying the said

judge to-hear and determine the same, a copy of which peti

“tion shall be served upon the adverse party thirty days be

fore the time appointed for hearing the same. And pro-

vided, further, That it shall and may be lawful! for the dis

trict judge of the United States, upon the hearing of sue:

petition, to grant an injunction to restrain the party at

whose instance the claim to the said lands has been con

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firmed, from suing out a patent for the same, until the

title thereto shall have been finally decided, a copy of which

order shall be transmitted to the commissioner of the gen-

eral land office, and thereupon no patent shall issue until

such decision shall be made, or until sufficient time shall, in

the opinion of the said judge, have been allowed for ob-

taining the same; and thereafter the said injunction shall

be dissolved.

See. 14. And be it further enacted, That the provisions

of this act shall not extend to any town lot, farm lot, or

pasture lot, held under a grant from any corporation or

town to which lands may have been granted for the estab-

lishment of a town by the Spanish or Mexican government,

or the lawful authorities thereof, nor to any city, or town,

or village lot, which city, town, or village existed on the

seventh day of July, eighteen hundred and forty-six; but

the claim for the same shall be presented by the corporate

authorities of the said town, or where the land on which the

said city, town, or village was originally granted to an in-

dividual, the claim shall be presented by or in the name of

such individual, and the fact of the existence of the said

city, town, or village on the said seventh July, eighteen hun.

dred and forty-six, being duly proved, shall be prima facie

evidence of a grant to such corporation, or to the individual

under whom the said lot-holders claim; and where any city,

town, or village shall be in existence at the time of passing

this act, the claim for the land embraced within the limits of

the same may be made by the corporate authority of the

said city, town, or village.

Sec. 15. And be it further enacted, That the final de-

crees rendered by the said commissioners, or by the District

or Supreme Court of the United States, or any patent to be

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issued under this act, shall be conclusive between the United

States and the said claimants only, and shall not affect the

interests of third persons.

Sec. 16. And be ut further enacted, That it shall be the

duty of the commissioners herein provided for to ascertain

and report to the Seeretary of the Interior the tenure by

which the mission lands are held, and those held by civilized

Indians, and those who are engaged in agriculture or labor

of any kind,, and also those which are occupied and culti-

vated by Pueblos or Rancheros Indians.

See. 17. And be it further enacted, That each commis-

sioner appointed under this act shall be allowed and paid

at the rate of six thousand dollars per annum; that the sec-

retary of the commissioners shall be allowed and paid at the

rate of four thousand dollars per annum; and the clerks

herein provided for shall be allowed and paid at the rate of

one thousand five hundred dollars per annum; the aforesaid

salaries to commence from the day of the notification by the

commissioners of the first meeting of the board.

See. 18. And be it further enacted, That the secretary

of the board shall receive no fee except for furnishing certi-

fied copies of any paper or record, and for issuing writs of

subpoena. For furnishing certified copies of any paper or

record, he shall receive twenty cents for every hundred

words, and for issuing writs of subpoena, fifty cents for

each witness; which fees shall be equally divided between

the said secretary and the assistant clerk

Approved, March 3, 1851.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.