U.S. ex rel. Chunie v. Ringrose

• Decision Date: 05 May 1986
• Docket Number: No. 85-5508,85-5508
• Citation: 788 F.2d 638
• Parties: 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, Plaintiffs- Appellants, v. 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 Russell Vail, Margaret Vail Woolley, and the Vickers Company, Ltd., a California Corporation; and the State of California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 638

788 F.2d 638

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, Plaintiffs- Appellants, v. 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 Russell Vail, Margaret Vail Woolley, and

the Vickers Company, Ltd., a California Corporation; and

the State of California, Defendants-Appellees.

No. 85-5508.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1985.

Decided April 29, 1986.

As Amended May 5, 1986.

Mario Gonzalez, Sidney C. Flores, Flores, Luna & Barrios, San Jose, Cal., for plaintiffs-appellants.

Jill S. Slater, Latham & Watkins, Robert Willett, O'Melveny & Myers, Los Angeles, Cal., Bruce S. Flushman, Deputy Atty. Gen., San Francisco, Cal., Gytis L. Nefas, Kazemzadeh, Jacobs & Nefas, Rosemead, Cal., Henry K. Workman, John Gherini, Francis Gherini, Sullivan, Workman & Dee, Los Angeles, Cal. for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, PREGERSON and CANBY, Circuit Judges.

FLETCHER, Circuit 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 dismissal 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 individually named defendants and the three organizational defendants claim ownership of the islands. Defendant State of California claims title to the channel beds surrounding the islands. The district court granted the defendants' 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 Chumash people have occupied the Santa Barbara Islands, i.e., Santa Cruz and Santa Rosa Islands, and the surrounding channel beds. Plaintiff The Brotherhood of the Tomol, Inc. 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 channel 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.

In the 1830's and 1840's, the Mexican government granted Santa Rosa Island to Antonio and Carlos Carrillo 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 contend the islands were not included in the ceded area. Despite this contention, the Chumash argue that the treaty converted their aboriginal title into recognized title protected by the fifth amendment.

To settle land claims 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 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. 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, 16 L.Ed. 498 (1860); Manuelo Carrillo de Jones v. United States (S.D.Cal., Dec.Term.1855) (unpublished). The Chumash argue that even if the islands were included in the ceded area, the Act of 1851 did not apply to Indian claims based on aboriginal title, and Indians were excepted from the land confirmation proceedings.

In addition to claiming an interest in Santa Cruz and Santa Rosa Islands, the 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 seeking declaratory relief, damages for trespass and conversion, injunctive relief, and attorney's fees. They named as defendants 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. Sec. 1988.

DISCUSSION

1. The Mexican government's grant of Santa Cruz and Santa Rosa Islands to private individuals did not extinguish 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 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955). After conquest by European powers, Indians were permitted to occupy territory over which they had previously exercised "sovereignty." This right is not an ownership right, but is rather a right of occupancy granted by the conquering sovereign, id., referred to as "original Indian title," "aboriginal Indian title," or simply "Indian title." Felix S. Cohen's Handbook of Federal Indian Law 487 (1982 ed.) [hereinafter cited as Cohen]. ¹ The right is therefore necessarily a creature of the conquering sovereign'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 enjoyment 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, 5 L.Ed. 681 (1823). Extinguishment of aboriginal title does not create a legal obligation to pay compensation to the Indians. Tee-Hit-Ton, 348 U.S. at 290-91, 75 S.Ct. at 322-23.

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 acquired this right to extinguish aboriginal title. The first issue in the case 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 wards." United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941). Although the Court in Santa Fe was referring to extinguishment by the United States government, the same caution may be applied in analyzing whether the Mexican government extinguished aboriginal title.

The methods available to extinguish aboriginal title have never been explicitly enumerated. The court in Johnson provided that extinguishment could be "either by purchase or by conquest." 21 U.S. (8 Wheat.) at 587. In Santa Fe, the court recognized the United States' right to extinguish 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, 62 S.Ct. at 252. A grant of Indian-occupied land by the government to an individual does not, however, constitute extinguishment.

In Johnson v. M'Intosh, the Supreme Court held that the European discoverers inherited the power to grant lands occupied 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 added). Other cases 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. (5 Otto) 517, 525, 24 L.Ed. 440 (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), 10 L.Ed. 123. The same principle applies to land grants by foreign sovereigns. See Chouteau v. Molony, 57 U.S. (16 How.) 203, 239, 14 L.Ed. 905 (1853) (land grants by the Spanish governors were made subject to the rights of Indian occupancy).

Based on this rule reaffirmed repeatedly by the Supreme 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...