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
and visited different parts of this continent,
at nearly the same time. ⭑
To avoid bloody
conflicts, which might terminate disastrously to
all, it was necessary for the nations of Europe
to establish some principle which all would
acknowledge, and which should decide their respec-
tive rights as between themselves. This principle,
suggested by the actual state of things, was 'that
discovery gave title to the government by whose
subjects, or by whose authority, it was made,
against all other European governments, which title
might be consummated by possession.' ⭑ ** This

principle, acknowledged by all Europeans,
gave to the nation making the dis-
covery, the sole right of acquiring the soil
and of making settlements on it. It was an
exclusive principle, which shut out the
right of competition among those who had
agreed to it: not one which could annul the
previous rights of those. who had not agreed
to it. It regulated the right given by
discovery among the European doscoverers;
but could not affect the rights of those
already in possession, either as aboriginal
occupants, or as occupants by virtue of a
discovery made before the memory of man.
*** In the establishment of these relations,
the rights of the original inhabitants were,
in no instance, entirely disregarded; but
were, necessarily, to a considerable extent,
impaired. They were admitted to be the right-
ful occupants of the soil, with a legal as
well as a just claim to retain possession of
it, and to use it according to their own dis-
cretion; but their rights to complete sover-
eignty, as independent nations, were neces-
sarily diminished, and their power to dispose
of the soil, at their own will, to whomsoever
they please, was denied by the original funda-
mental principle, that discovery gave exclusive
title to those who made it." (emphasis added)

These principles of "doctrine of discovery" and "aboriginal Indian title" developed concurrently and were very important concepts in the early settlement of North America. These principles were also accepted by the government of the United States after the creation of our current federal government, and indeed is the basis for federal ownership of land. That federal ownership is based upon the "doctrine of discovery." While the Indian tribe does not own the land it occupies, it does have certain rights in the land. These rights have been designated as an "Indian title."

Many United States Supreme Court decisions have discussed "Indian title." Within these decisions, two different types of rights have been consistently referred to as being held by "Indian title." These two different types of rights are: (1) aboriginal rights that have never been formally recognized by any federal action; and (2) rights that have been formally recognized by federal action. While

the early United States Supreme Court decisions have stated that there is no difference between these two types of "Indian title," a distinction has arisen in subsequent decisions, especially with regard to claims for extinguishment of an unrecognized "Indian title."

In the early history of the United States, most of the territory claimed by the United States was obtained from various European nations. Indian tribes still lived on most of the land within this territory, even though the United States followed the practice of the European nations and did not recognize any ownership of land by these Indian tribes.

In the first session of Congress, legislation was passed concerning dealings with Indian tribes regarding their land. That legislation, passed in 1789, provided for the government of the Northwest Territory, and provided that:

"The utmost good faith shall always be
observed towards the Indians; their land
and property shall never be taken from
them without their consent; and in their
property, rights, and liberty they never
shall be invaded or disturbed, unless in
just, and lawful wars authorized by Congress;
but laws founded in justice and humanity
shall from time to time be made, for pre-
venting wrongs being done to them, and for
preserving peace and friendship with them,"
The Act of August 7, 1789, 1 Stat. 50.

Thus, from the very earliest days of the United States, the Congress has dealt with Indian tribes regarding their "Indian title," even when that "Indian title" has been unrecognized by any formal action of the Federal Government.

In 1790, Congress enacted the first of many acts specifically defining substantive rights and dutites in the field of Indian affairs. That act was entitled, "An Act to regulate trade and intercourse with the Indian tribes." Section 4 of that act provided

that:

"no sale of lands made by Indians, or any
nation or tribe of Indians within the United
States, shall be valid to any person or

same shall be made and duly executed at

some public treaty, held under the authority
of the United States."

The Act of July 22, 1790, 1 Stat. 137

This "trade and intercourse" Act was only temporary in nature and was followed by various other "trade and intercourse" Acts until 1834.

In 1834, Congress enacted "An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," the Act of June 30, 1834, 4 Stat. 729. Various portions of this act are still in effect today. One portion relating to Indian lands, and still in effect today, provides that:

"No purchase, grant, lease, or other
conveyance of lands, or of any title
or claim thereto, from any Indian nation
or tribe of Indians, shall be of any
validity in law or equity, unless the
same be made by treaty or convention

entered into pursuant to the Constitution."
25 U.S.C.A. $177.

From these statutes, it is clear that the Congress recognized that Indian tribes had certain possessory rights in land, even if those rights had not been formally recognized by any congressional action. It is also clear that the generally recognized method of obtaining land from these Indian tribes was by treaty.

In a recent United States Court of Appeals.decision, the policy and purpose of this last statute was discussed. That decision stated:

"That policy has been said to be to protect
the Indian tribes' right of occupancy, even
when that right is unrecognized by any
treaty, (citation omitted), and the purpose
to prevent the unfair, improvident, or
improper disposition of Indian lands. (cita-
tion omitted)."

Joint Tribal Council of Passamaquoddy Tribe
v. Morton, (1975) 528 F2d 370, 377.

Over the years, this federal policy of protection of Indian

lands has usually been to the detriment of the Indian tribes involved,

particularly in California. Although the purpose of various federal legislation protecting "Indian title" has been to "prevent the unfair, improvident, or improper disposition of Indian lands," the federal government has never accepted any responsibility to protect any aboriginal Indian title in California, and the various Indian tribes have been left on their own to survive as best as possible.

From its' very beginning, Congress has recognized the concept of "Indian title" and passed legislation dealing with Indian occupied lands. This legislation, in theory at least, provided legislative protection for lands held by "Indian title." The courts of this country also recognized the concepts of "Indian title," and the early decisions seemed to protect the remaining limited rights of the Indian tribes. (See generally, Johnson v. McIntosh, supra, and Worcester v. Georgia (1832), 31 U.S. 515.)

This judicial recognition and protection of the aboriginal "Indian title" continued into the twentieth century: In 1941, the United States Supreme Court decided United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, a case involving an aboriginal "Indian title" in the state of Arizona. That decision discussed the method by which the United States could extinguish an unrecognized Indian title. In that decision, it was made clear that (1) aboriginal occupancy establishes rights of possession, (2) the policy of the federal government to respect the aboriginal possession of land by Indian tribes applies to lands with the area ceded to the United States by Mexico in the Treaty of Guadalupe Hildalgo, (3) a tribal claim to land will be recognized although it has no basis in any treaty, statute, or other formal government action, and (4) that extinguishment of tribal occupancy rights may not be inferred from general legislation that does not refer specifically to Indian rights or from administrative action taken under such legislation, even though such administrative action may in fact interfere with the full enjoyment of such possessory rights.

While Congress has the power to extinguish "Indian title," there are certain restrictions on their actions, as pointed out in the