On October 5, 1942, the U.S. Court of Claims issued its opinion in the case California Indians K-344, which involved “Various Tribes of Indians located in California.” The case was the result of a jurisdictional act of May 18, 1928, whereby Congress permitted the State of California to sue the United States on behalf of the Indians of California. As the Court of Claims stated: “In 1928, Congress passed a private act, 45 Stat. 602…which provided that the claims of these Indians should be adjudicated by the Court of Claims.”
The Court of Claims was referring to claims premised on the refusal of the U.S. Senate, in 1852, to ratify eighteen treaties that U.S. treaty representatives made with the Indians of California. As the Court of Claims said: “There was a promise made to these tribes and bands of Indians and accepted by them but the treaties were never ratified so the promise was never fulfilled. From 1852 this matter lay dormant for almost eighty years.” In making its ruling, the Court of Claims also specified:
This case does not involve the payment for land of which the Indians has a cession [sic], or use and occupancy. No legal claim under any treaty or act of Congress setting aside land for the use of the Indians of California can be sustained. The decree can only be for a fixed amount of compensation. There has been no taking [of land] which under the Constitution would require just compensation to be paid and therefore would involve interest.
In other words, the claims case K-344 was not an acknowledgment by the United States that the Indians of California had any legal right to their traditional lands in California. The case was only intended to compensate the Indians of California for the U.S.’s failure to ratify 18 Indian treaties.
At the opening of its ruling, the Court of Claims used racist and demeaning language to characterize the nature of the Indians’ relationship with their traditional lands and territories: “The Indians of California consist of wandering bands, tribes, and small groups who had been roving over the same territory during the period under the Spanish and Mexican ownership, before the  treaty between Mexico and the United States whereby California was acquired by the United States.” Notice that the Court used the present tense “consist of wandering bands,” etc., thereby asserting that the Indian nations of California were “wandering bands, tribes, and small groups” in 1942!
The Court of Claims further said of the Indians of California: “They had no separate reservations and occupied and owned no permanent sections of land. They and their forebearers had roved over this country for centuries. They possessed no title to any particular real property existing under the Mexican law in California.”
The Court of Claims went on to say that “these Indians did not qualify before the Commission created on March 3, 1851, 9 Stat. 631, entitled: ‘An Act to ascertain and settle the private land claims in the State of California.’ Therefore, whatever lands they [the Indians of California] may have claimed became part of the public domain of the United States. However, these Indians were roving over the State of California when the ‘gold rush’ began and the white man paid no attention to any claims the Indians asserted to any portion of this country. This resulted in bloody clashes and reprisals.”
The demeaning language used by the court, terms such as “wandering,” “roved,” and “roving” were evidently intended to destroy any presumption that the Indian nations and peoples of California had a perfect right to their lands and traditional territories that deserved to be respected by the non-Indian dominating society. To help us understand the basis of the above statement by the Court of Claims, we can turn to the ruling Cornet v. Winton’s Lessee 10 Tenn. 143 (1826).
To have a correct view of the rules adopted and applied to Indian affairs when grants were issued by the kings of England for lands in North America, we must look to the prevailing opinions of those days in matters of religion. The spiritual father of Christendom dictated the creed of the people, and assumed enormous powers…. As the successor of St. Peter, his grants of infidel countries were considered binding in heaven, and of course upon the consciences of Christians. The unquestionable tenets which they all held are those laid down by Lord Coke in Colvin’s [sic] case, that all infidels are in law perpetual enemies; for between them, as with devils whose subjects they be, and the Christians, there is perpetual hostility. With these religious opinions and this law of nations for their government, the Spaniards came to the frontiers of Mexico with a grant in their hands given by the supreme disposer of earthly possessions, by which the whole continent of America was made subject to their dominion…Under these auspices, was the European dominion over the soil and over the bodies of men interwoven into the codes of American jurisprudence.
To this day, as a result of bigoted attitudes such as those expressed above, the relationship of the Indians nations of California with their traditional lands and territories has not been properly respected by the non-Indian society. The above attitudes have resulted in the United States being presumed to be the ultimate decision maker with regard to traditional places such as Ocotillo Valley, where the construction of 112 wind turbines, 490 ft. tall, have been signed off on by U.S. Secretary of the Interior Ken Salazar on behalf of the Obama administration, despite opposition from the Quechan, the Cocopah, and many of the Kumeyaay Bands.
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008), and a columnist with Indian Country Today Media Network.