OCR Text |
Show lxvi FIFTY-SEVENTH ANNUAL REPORT OF the righta of olaimants. Much perplexity existed as to how thia wes to be aocom-plinhed, owing to ignorance aa to the condition of land titles here at that time. In July.,. 1849, William Carey Jones was a-p ~ointeds "confidential aeent of the Qovern- - - merit to proceed to Mexico and California for the purpose of procuring informetion ss t o the condition of land titlea in California," to aid, no doubt, in securing intelligent legislation upon the subject. His report waa made in Maroh, 1850, to the secretq ofthe Interior, who laid the aame before Congreas. After an extended consideration o f this report i n Congreas the act of Mareh 3, 1851, enhitled "An act to aseerta~na nd settle private land claims in the State of California'' was passed. In this report Mr. Jonea thus spesks of the righta of Indians : "I am also instructed to make an inquiry into the nature of Indian rights (to the soil) under the Spanibh and Mexican Governments. It is a principle constantly laid down in the Spmish and colonial laws. that the Indians shall have a ri-e ht to such land aa they need for their hebitations, for tillage, andfor pasturage. ' * . Spe-cis1 directions were given for the selection of lands for the Iudian villaees in plaoes suitable for ilgricul%~rea,n d having the ncceasary wood and water. " ~ g r e e - ably to the theory and Eipi~iot f these laws, the Indiana in California were always sup-posed to have s oertain property or interest iu the missions. * * * We may my, therefore, that however maladministration of the law mav have destroved ita intsr-eat, the law itself has constantly asserted the righta of the Indians to habitations and suffioient fields for their sup.p. o rt. The law alwavs intended the Indians of the missions-dl of them who remained there-to have homesupon themission grounds. The aame, I think, may be midof the large ranchos-most or all of which were fur-merly mission ranchoeand of the Indian settlement or rancherias upon them. I underatand the law to be that whenever Indian settlements are eatahliebed and the Indians till the ground, they have a right of ocoupanoy in the land they need and nee, and whenever a grant is made whieh incl~des snoh settlements, the grant ia subjeot to snoh ocoupanoy. Thia right of ocoupancy, however, at lesst when on pri-vate flatates, isnot transferable, but whenever the Indians abandon it the title of the owner becomes perfect. Where there is no private ownerahip over the settlement, as where the lands it aocnpies have been assigned it by a functionary of the country thereto authorized, there is a process, aa before shown, by which the natives may alien their title. I believe these remasks cover the priueiples of the Spanish law in regard to Indian settlements, as far a8 they have been applied in California, end are aonformable to the onatornary law that has prevailed there. The eontinned observ-ance of this law and the exercise of the public authority to protect the Indians in their rights underit oannot, I think, produce any great inaonvenienoe, while aproper reeerd for lone-- reooenizad rinhts and a Droner avmoathv for an unfortunate and nn- L L . - " happy race would seem to farhi& that it should be abrogated unless for a, bet,ter. * I n the wild or wsndering tribes theSpanish law does not reaoeniee anvtitle . - whatever to the soil." It was held in Leese as. Clarke (3 Cd., 17) that every Mexiom grant must he de-termined and its validity estsblished by the fundamental law of the Mexican Can-gress passed in 1824, the regnlationa of 1828, and the ordinances of the departmental legislature oonaiateut therewith. Under these laws and regulatiaus the territorial gowmora were authorized to grant, with certain specified exceptions, vacant lands. (Hall's Mexiem Laws, 504; Ferris va. Coover, 10 Cal., 590, note.) If it be true that under the laws of Mexico onlyvacant lands could be granted, and that grants were to be without prejudioe to Indians, it would seem that the lands in controveray, having been in the undistnrbed possession of defendants and their an-oeatora ever sinoe 1815, were not snyeot to grant so as to out off the right of ocau-paney ; and 8,s it ia expressly provided in the grant before us that "he (Estudillo) shall in no way disturb nor molest the Indiana who are established or living thereon st the present time," the patentee and his grantee under the law and the terms of the grant took the fee, subjeot at least to the right of occupancy by the Indians; and |