In 1901, the U.S. Supreme Court issued its ruling in Barker v. Harvey, a case involving Cupeño people in Southern California. They were resisting eviction from the “Aqua Caliente Hot Springs” in the Warner Ranch area. To defend themselves, the Cupeño people claimed a right of “permanent occupancy” on the land. The Supreme Court rejected that argument, saying that if the Indians had had any claims founded on some previous action by the Mexican government the Cupeños had abandoned those claims by not presenting them to the 1851 federal land commission for consideration.
Because the Cupeños had not filed a claim with that land commission, the Court said they could not successfully resist “any action of the government in disposing of the property.” Never mind that the Cupeño people had probably never been informed about a need to bring their own claims before the 1851 land claims commission. And never mind that U.S. treaty commissioners were creating draft treaty documents with Native leaders in California during that same 1851-52 period, albeit treaties which were never ratified. So which was the “correct” course of action for the Native people to take? Treaty talks, or the claims commission process? It they were supposed to follow both processes, then why didn’t the U.S. government let the Native people know that at the time?
The Court acknowledged that the Cupeño Indians might only be claiming “the right of occupation,” and not fee title to the land. The Court said it could also be argued that the Native people were not claiming lands in California on the basis of “any right or title derived from the Spanish or Mexican government.” Nonetheless, the Court cautioned that the Cupeños argument of “permanent occupancy” on the land could have a “far reaching effect.”
The Court said that if the “Aqua Caliente Hot Springs” lands were “burdened” with an Indian right of “permanent occupancy” that this would definitely prevent the United States from declaring those lands to be “part of the public domain” and “subject to the full disposal” by the United States government. The Court discussed the difference between a scenario in which the Cupeños were deemed to have a “temporary occupancy” and a scenario in which they were deemed to have “a right of permanent occupancy.” (emphasis added)
The Supreme Court said that a designation of “permanent occupancy” for the Cupeños would amount to a right of “private property” for the Cupeños, meaning, a form of property that would precede the title of the United States government, and be superior to the U.S. title. If the Cupeño people were recognized as possessing a permanent occupancy right on the land, the Court stated, this would “necessarily limit the power of the United States to dispose of or grant the soil to parties of its own choosing.” Obviously, this was a major concern for the Court.
The Court further stated that a claimant going before the land commission of 1851 would have little reason to present his claim to land to the commission in an effort to secure that claim, “if the only result was to transfer the naked fee to him, burdened by an Indian right of permanent occupancy.”
By rejecting the Cupeño’s claim of “permanent occupancy,” the Court was upholding the theory that the Cupeños only had a “temporary occupancy,” meaning transient, or short lived. The Barker Court’s use of the word “temporary” corresponds to something Joseph Story said in his Commentaries on the Constitution of the United States (1836) when he said of the Native people, “The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.” (emphasis added)
In Byrne v. Alas (1888), the California Supreme Court quoted the Jones report on the title of the Indians pursuant to the systems of Spain and Mexico. That report said that the Spanish crown did not recognize any right of soil in “the wild and wandering tribes.” A lack of mental recognition by the Spanish crown resulted in no right or title for the original nations that the United States was obligated to acknowledge or respect. Stated differently, only in the event that the Spanish crown and Mexican government had mentally recognized the original Indian nations as having a fundamental right of soil would the United States be obligated as the successor to the Spanish Crown and the Mexican government to recognize the Indian nations as having a right of soil.
There is a form of reasoning behind the idea of a right of “temporary occupancy” for the Indian people. Once the United States had declared itself to have militarily and politically taken over the geographical area called “California” by means of the Treaty of Guadalupe Hidalgo, and once the “state of California” had been declared into existence and admitted into the Union of other states, the United States federal government and the state of California considered themselves only obligated to do what the governments of Spain and Mexico had done before them. In 1885, attorney Frederick Hall published his book The Laws of Mexico, based his research in the archives of Mexico in Mexico City. Section 1 of his book begins:
- 1. Grant by the Pope.—For the purposes of overthrowing heathenism, and advancing the Roman Catholic religion, Alexander sixth issued a bull in 1493, granting to the crown of Castile the whole of the vast domain then discovered, or to be discovered, between the north and south poles, or so much thereof as was not considered in the possession of any Christian power.
According to the rules of Christendom, lands regarded by Spain to be in possession of some “Christian power” deserved to be accorded a formal governmental recognition. Lands in the possession of non-Christian nations, such as, for example, the Cupeño, did not have to be accorded any recognition whatsoever according to Christendom’s rules. Lands that were, “in respect to Christians” “inhabited only by brute animals” (to use Justice Joseph Story’s wording), were not considered to be possessed by any form of power in relation to land and water which the Christian world was obligated to recognize. Christian nations did not obligate themselves to recognize non-Christian nations.
Non-Christian lands were considered void of Christian dominion (a property right of domination), and therefore “open” to the establishment of Christian dominion (domination) that was destined by the Christian “God.” The non-Christians, said Joseph Story, were “destined to yield to the superior genius of Europe” (emphasis added), an idea which Chief Justice John Marshall also expressed in the 1823 Supreme Court ruling Johnson v. M’Intosh. And to this day Native nations such as the Cupeños and others are still, on that religious basis, forced to operate within the constraints of those Christian-premised ideas and arguments in California and elsewhere.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com.
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