to be the duty of the Government to care as well as for those already enumerated. One of these is the San Carlos Indians, living near the old San Carlos Mission at Monterey. There are nearly one hundred of these, and they are living on lands which were given to them before the Secularization Act in 1834. These lands are close to the boundaries of the ranch San Francisquito of Monterey. These boundaries have been three times extended, each time taking in a few more acres of the Indians' lands, until now they have only ten or twelve acres left. There are also some very destitute Indians living in the neighborhood of the San Antonio Mission, some sixty miles south of Monterey, and of San Miguel, forty miles farther south, and of Santa Juez near Santa Barbara. These Indians should not be overlooked in arrangements made for the final establishing of the Mission Indians in Southern California. Hoping that these recommendations may be approved by the Department, we are, Very respectfully yours, L. Pala and neighborhood, including Rincon, Pauma, and La Jolla 502 504 N. The Desert Indians O. San Gorgonio Reservation 506 508 P. Pauma Ranch and the proposal for its sale to the U. S. Government 512 513 513 EXHIBIT A. Los Angeles, Cal., May 12th, 1883. SIR, In response to your verbal request asking our opinion as to the following questions, viz. : 1st. Have civilized Indians and those who are engaged in agriculture or labor of any kind, and also those who are known as Pueblos or Rancheros Indians in California, a right to occupy and possess lands which they and their predecessors had continuously occupied, possessed, and enjoyed while said lands were under the jurisdiction of the Mexican Government, up to and at the date of the ratification of the treaty Guadalupe Hidalgo between the United States and the Mexican Republic, March, 1848, notwithstanding that said lands so occupied and enjoyed by the Indians aforesaid had been while they were so occupying and possessing the same, by the proper Spanish and Mexican authorities before the ratification of said treaty granted to certain Spanish and Mexican citizens, and since the acquisition by the United States of the territory embracing said lands so granted been by the United States confirmed, surveyed, and patented to the grantees or their legal representatives? 2d. Has the United States Government the right to condemn lands within the State of California for the purpose of giving Indians homes thereon? We have the honor to submit the following as our reply and answer to the above interrogatories. Before and at the date of the treaty of Guadalupe Hidalgo, all the territory now known as California was a part of and under the jurisdiction of the Mexican Republic. We do not regard it as necessary, in order to answer the questions propounded, to give a history of the land-laws of Spain and Mexico, nor the method of acquiring land prior to August 18th, 1824. On August 18th, 1824, the Mexican Congress enacted a general colonization law, prescribing the mode of granting lands throughout the Mexican territory. This law was limited and defined by a series of regulations ordained by the Mexican Government, November 21st, 1828. By these laws and regulations, which have ever since continued in force, the governors of Territories were authorized to grant, with certain specified exceptions, vacant land. By the fundamental laws of 1824, the regulations of 1824, and the regulations of the departmental legislature consistent therewith, all Mexican grants in California have been determined; and by this has been determined the validity of every grant of land in California. (Lesse & Vallejo vs. Clark, 3 Cal. 17.) The limitations, as well as the fundamental laws mentioned, provided that in making grants or distribution of land (such as are now known as Mexican grants), — 1st. It must be vacant land, and, if occupied by Indians, then with. out prejudice to them. 2d. That such land as would be granted to the damage and injury of the Indians should be returned to the rightful owners. The Mexican Government reserved from private grant all lands occupied and possessed by the Indians. Great care was taken to make strict reservation of such land; and by law no valid grant of land occupied or possessed by Indians could be made so as to dispossess them. When California was ceded to the United States, the rights of property of its citizens remained unchanged. By the law of nations those rights were sacred and inviolable, and the obligations passed to the new government to protect and maintain them. The term property, as applied to lands, embraces all titles, legal or equitable, perfect or imperfect. (Teschemacher vs. Thompson, 18 Cal. 12.) The United States never had, and does not now possess, any power under or by virtue of said treaty whereby it could or can confer upon a citizen holding and claiming property granted by the Mexican Government other or different property rights than those conferred by such Government, and such as were possessed, enjoyed, and held by him while under the jurisdiction of such government. It cannot abridge or enZarge the right to enjoy and to possess property held by virtue of Mexican law at the date of said treaty, nor can it deprive persons of any right to property which belonged to them at the date of said treaty. A mere grant of land by the Mexican governor without compliance by the grantee with the further requisitions of the Mexican laws forms but an inchoate title, and the land passed to the United States, which hold it subject to the trust imposed by the treaty and the equities of the grantee. The execution of the trust is a political power. (Lesse vs. Clark, 3 Cal. 17.) By the fundamental laws of 1824, the regulation of 1828, and the regulation of the departmental legislature, one condition was that in making private grants of lands the lands granted must be vacant lands. Lands occupied by and in possession of Indians were not such vacant lands; for by the same laws and regulations it was provided that such grants must be without prejudice or damage to the Indians, and that such land granted to the damage and injury of the Indians should be returned to the rightful owners. (New Code, law 9, title 12, book 4.) The Mexican authorities recognized the rights of Indians to hold, enjoy, and possess lands, and there are of record a number of grants made by the Mexican authorities to Indians. They not only had the right to receive grants of land under the Mexican laws, but also to convey the lands so granted. (United States vs. Sinnol, Hoffman's Reports, 110.) It will be observed that at the date when private grants of land were made with some regard for law, the limitation and conditions required by law to be observed were inserted in such grants, viz. : L. C., No. 342-6, S.D., 398; L. C., No. 254-219, S. D., 228-407; L. C., No. 740-372, N. D., 208; L. C., No. 326–359, N. D., 389; Hoffman's Report Land Cases, pp 35 et seq.; Surveyor-General's letter, dated San Francisco, March 14, 1883, and addressed to Mrs. William S. Jackson. The Indians and their descendants, who occupied and now occupy lands within the grants above named, as well as grants containing claims of a similar character, are in our opinion possessed and seized of the lands which were and have been and now are in their possession; and they can hold the same against persons claiming the same by virtue of a United States patent, issued upon a confirmed Mexican grant, This leaves to be answered the following question: Can the Indians hold lands for which a United States patent has issued conditioned as set out in the first question, provided no conditions or limitations are contained or expressed in the grant? This is a question beset and surrounded by many difficulties; nor do we deem it necessary to do more than refer to restrictions and limitations contained in the laws of Mexico concerning private grants of lands upon which Indians were residing, lands which were occupied by them. It is certain that if such lands were granted by a Mexican official, and the authorities omitted to recite the conditions and limitations required by law, and reserve from the operation of such grant such lands as the law conditioned could not be conveyed by such grant, such a grant would and could not take it out of the operation of the law. It could not defeat the rights of those whose rights attached by reason of law. If the officers of the Mexican Government to whom was confided the trust exceeded their authority as regulated by the solemnities and formalities of the law, the courts are bound to take notice of it, and cannot shield those claiming under such title from the necessary consequence of ignorance, carelessness, or arbitrary assumption of power. (Lesse & Vallejo vs. Clark, 3 Cal. 17.) It is now necessary to inquire how far and to what extent will the issuance to the grantee of the United States patent change or modify this rule. We shall not discuss, as we do not deem it necessary, the decision of the United States Supreme Court, that 66 a United States patent cannot be attached collaterally, but may be by a direct proceeding," as we did not regard these decisions as in any way affecting the question submitted and now before us. In 1851, March 3d, Congress passed an act entitled "An act to ascertain and settle the private land-claims in the State of California." By said statute it was enacted "that it shall be the duty of the commission herein provided for to ascertain and report to the Secretary 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 cultivated by Pueblos or Rancheros Indians." (U. S. Statutes at Large, vol. ix. p. 634, sec. 16, Little & Brown's ed.) We have no means of ascertaining whether such a report was made, or, if made, its contents. We have no doubt the commission did their duty and complied with the law, and that their report will be found on file in the Department of the Interior. This report, if in our hands, would greatly aid us in reaching a correct conclusion. By the same act it is further provided that the patent of the United States issued to parties holding Mexican grants are conclusive between the United States and the said claimants only, and shall not affect the interest of that person (Ib. p. 634.) If the report of the commission established the fact that the Indians were residing upon and occupying lands within the boundaries of claimed grants, which grants have no conditions or limitation inserted therein, that they claimed such lands by virtue of the laws of Mexico, this evidence, with such other evidence as we understand can be furnished, is in our opinion enough to establish under the law, as we regard it, a right in the Indians to hold and occupy such lands against the confirmee or patentee. If, however, no such report has been made, we are of the opinion, if conclusive evidence can be furnished proving that these Indians were in possession of these lands at the time these grants were made by the Mexican authorities, that they continued in possession, and were in possession at the date of the treaty, and have since continued in possession, the law will entitle them to hold such land against all persons claiming under the patent. : We answer the second question propounded as follows:By the fifth amendment to the Constitution of the United States it is provided: * * * “Nor shall private property be taken for public use without just compensation." Would the taking of lands belonging to citizens for the purpose of giving the same to Indians be such a public use as is contemplated by the Constitution? We are of the opinion it would not. (Walther vs. Warner, 25 Mo. 277; Board of Education vs. Hockman, 48 Mo. 243; Buffalo & New York Railroad Company vs. Brannan, 9 N. Y. 100; Bradley vs. New York, &c. Railroad Company, 21 Conn. 294; Fisher vs. Horicon Iron Work, &c. Company, 10 Wis. 354; New Orleans & Railroad Company vs. Railroad Company, 53 Ala. 211; Conn vs. Horrigan, 2 Allen, 159; Chambers vs. Sattuler, 40 Cal. 497; Railroad Company vs. City of Stockton, 41 Cal. 149; Channel Company vs. Railroad Company, 51 Cal. 269; Gilmer vs. Lime Point, 18 Cal. 229; Conn vs. Tewksbury, 11 Metcalf, 55; Manufacturing Company vs. Head, 56 N. H. 386; Olmstead vs. Camp, 33 Conn. 532; Buckman vs. Saratoga Railroad Company, 3 Paige Ch. 45; Memphis Freight Company vs. Memphis, 4 Cold. 419; Enfield Toll Bridge Company vs. Hartford Railroad Company, 17 Conn. 42.) We are, very respectfully, BRUNSON & WELLS, Attorneys-at-Law. ABBOT KINNEY, Esq., Los Angeles, Cal. |