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 without 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 enlarge 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.)