California is a unique and complex State. In the development of this State, the interests of the Indians of California have often been ignored or swept away. Historically, there were more Indian Tribes and a larger Indian population in California than in any other comparable land area within the United States. Each Tribe had a well defined territory and lived within that territory, and continue to live in those areas today. However, the federal policy of treatment of the Indians in California has resulted in the development of a very unique system, often detrimental to the condition of the Indians of California. The current status of Indians in California is quite complex. Today, there are 80 reservations and rancherias in California which have been recognized by the Department of the Interior as "Indian Tribal Entities That Have a Government-To-Government Relationship with the United States," with a combined population of approximately 15,000 Indians. (See generally, Federal Register, Vol. 45, No. 81, Thursday, April 4, 1980, pgs. 27828-27830). There are approximately 37 reservations and rancherias which have been terminated from federal trust status (see generally, California BIA Tribal Information and Directory, "Terminated Rancherias"). There are approximately 2,400 Indian allotments on the public domain, with varying types of ownership, including federal trust status, fee patent held by Indians, and fee patent held by non-Indian. In addition, there are approximately 35,000 - 40,000 California Indians who are not members of the Indian Tribes recognized by the BIA as eligible for services because of their government-to-government relationship. The federally recognized Indian tribes, and the reservations and rancherias are very important, and their rights of tribal sovereignty and self-determination should never be infringed upon without their advice and consent. However, the nonfederally recognized Indian tribes of California are important also, and their rights to participate in their future should also be preserved and developed. The development of this system in California has been almost entirely from the involvement, or lack of it, by the federal government. The first federal involvement with Indians of California occurred when an Act was passed on September 30, 1850, which provided for treaty-making with the "various Indian tribes in the State of California." Act of September 30, 1850, Chap. XCI, 9 Stat. 544, 558. Pursuant to that Act, eighteen treaties were entered into by agents of the U. S. Government and Indian tribes in California, between March 19, 1851 and January 7, 1852. These treaties were considered by the U. S. Senate on June 28, 1852, and the Senate refused to ratify any of these treaties. After these treaties were not ratified, no attempt was ever made to notify any of the Indian tribes that these treaties were not ratified. The refusal to ratify these treaties was based upon strong opposition by non-Indians in California to allow any Indian land rights within the State of California, primarily because of the valuable land in California. In addition, support was expressed for the removal of the Indians from California. After this refusal to ratify any treaties in California, Congress made no further efforts to deal with the Indian tribes in California by the treaty-making process, and therefore no Indian titles in California have ever been extinguished by treaty. Instead of dealing with the Indian tribes by treaty, Congress enacted laws providing for the creation of the reservation system in California, beginning in 1853 when Congress passed on Act providing for the creation of "five military reservations from the public domain in the State of California or the territories of Utah and New Mexico bordering on said State, for Indian purposes; .. and the sum of two hundred and fifty thousand dollars is hereby appropriated, to defray the expense of subsisting the Indians of California and removing them to said reservations for protection: March 3, 1853, Chap. 104, 10 Stat. 226, 238. Act of In 1854, Congress passed an Act which appropriated money "(f) or defraying the expense of continuing the removal and subsistence of Indians in California, [on] three military reservations, . Act of July 31, 1854, Chap. 167, 10 Stat. 332. In 1855, Congress passed an Act "(f) or collecting, removing, and subsisting the Indians of California (as provided by law) on two additional military reservations, Act of March 3, 1855, Chap. 204, 10 Stat. 686, 699. " Pursuant to these Acts of Congress, three reservations were created in California. These were the Klamath River Reservation, in 1855, the Mendocino Reservation in 1856, and the Smith River Reservation in 1862. Act In 1864, Congress passed an Act entitled "An Act to Provide for the Better Organization of Indian Affairs in California." of April 8, 1864, Chap. 48, 13 Stat. 39. This Act provided that no more than four Indian reservations were to be created in California, "which shall be of suitable extent for the accommodations of the Indians of said state." Three Indian reservations were created in California under the authority of the 1864 Act. These were the (1) Hoopa Valley Reservation, in 1864, (2) Round Valley Reservation, in 1870, and (3) Tule River Reservation, in 1873. Various Mission Reservations were also created in California, beginning in 1870. These Mission Reservations have been treated as a single Indian reservation for the purposes of the 1864 Act, thereby extinguishing the Presidential power to create additional Indian reservations in California under the authority of the 1864 Act. In addition to the creation of these four reservations, the Mendocino and the Smith River Reservation were discontinued by federal legislation in 1868, according to the terms of the 1864 Act. Therefore, of the three original military reservations in California, only the Klamath River Reservation was not disposed of according to the terms of the 1864 Act. In 1891, the Hoopa Valley Reservation was enlarged and extended to encompass the former Klamath River Reservation. Thus, the 1864 Act is the primary basis for the reservation system in California. However, as stated earlier, the system did not work as planned. The Indian tribes of California occupied well-defined territory throughout the State, and although subject to extreme cruelty, and without adequate protection, they basically continued to live in the area in which they were originally from, and therefore, the members of these reservations today are principally the original occupants of the territory in which the reservation was created. Therefore, the reservation populations never included all of the Indians of California, even though this was the plan, and Indians continued to live throughout the State despite the lack of federal protection and despite the lack of any federally recognized real property rights. Because of the problems created by the general failure of the reservation system to encompass all of the Indians of California, Congress began, in 1891, enacting legislation which eventually resulted in the creation of approximately 110 additional reservations and rancherias throughout California (see generally, California BIA Tribal Information and Directory, General Authority for Establishing Some Indian Reservations in California). However, even these additional reservations and rancherias did not encompass all of the Indians of California, and in addition, approximately 2,400 Indian allotments were granted to Indians in California from the public domain. Beginning during the 1950's Congress enacted legislation which eventually led to the termination of approximately 37 rancherias in California. Many terminations in California have been successfully challenged and some formerly terminated rancherias have been restored to the federal trust relationship. In addition, many of the individual Indian allotments have been removed from trust status for various reasons, although without terminating the status of the individual as an Indian. However, many of these remain in Indian ownership and many are still held in a federal trust status. The development of the reservation system in California has been very important with regard to the Indian tribes involved, and this is the basis for the federal recognition of these Indian tribes as having government to government relations with the federal government. However, the other Indian tribes have property rights, under concepts of aboriginal Indian title, which should have been protected by the United States government, until properly extinguished, and it is these rights of the nonfederally recognized Indian tribes which have been totally ignored. These concepts of Indian title are very important, and it is a denial of this protection by the federal government which is the principle basis for denial of federal recognition of these Indian tribes. Therefore, the main focus of this report is to examine the concepts of aboriginal Indian title, and the application of those concepts to California Indians. The concept of aboriginal Indian title is a development of international law and developed as the Eureopean nations were in the process of claiming title to land in North and South America. The concept of aboriginal Indian title developed from the doctrine of discovery, whereby the European nation discovering a certain territory, claimed title to that territory, as opposed to other European nations. This doctrine of discovery is the primary source of power over Indian tribes, for under that doctrine the Indian tribes are denied any ownership of land, but are instead limited to rights of occupation and possession of the land. In 1823, Chief Justice Marshall discussed the doctrine of discovery in Johnson v. McIntosh, 21 U.S. 543: "The great maritime powers of Europe discovered |