*483

"In the said territories, the property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States."

year, without having declared their inten- | which have been finally rejected by the comtion to retain the character of Mexicans, missioners in the manner herein provided, shall be considered to have elected to become or which shall be finally decided to be incitizens of the United States. valid by the district or supreme court, and all lands the claims to which shall not have been presented to the said commissioners within two years after the date of this act, shall be deemed, held and considered as part of the public domain of the United States; and for all claims finally confirmed by the said commissioners, or by the said district or supreme court, a patent shall issue to the claimant upon his presenting to the General Land Office an authentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed and to furnish plats of the same; and in the location of the said claims the said surveyor general shall have the same power and authority as are conferred on the registrar of the land office and receiver of the public moneys of Louisiana, by the sixth section of the act 'to create the

Article 10, as originally prepared, was stricken out by the Senate, but in the protocol signed by the representatives of the two nations, at the time of the ratification, on May 26, 1848, it was stated:

"2d. The American government by suppressing the 10th article of the treaty of Guadalupe did not in any way intend to annul the grants of lands made by Mexico in the ceded territories. These grants, notwithstanding the suppression of the article of the treaty, preserve the legal value which they may possess, and the grantees may cause their legitimate [titles] to be acknowl-office of surveyor of the public lands for the edged before the American tribunals.

"Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded territory, are those which were legitimate titles under the Mexican law in California and New Mexico, up to the 13th of May, 1846, and in Texas up to the 2d March, 1836." Ex. Doc. No. 50 H. R. 30th Cong. 2d Sess. p. 77.

After the acquisition of this territory Congress, on March 3, 1851 (9 Stat. at L. 631, chap. 41), passed an act entitled "An Act to Ascertain and Settle the Private Land Claims in the State of California," which created a commission to receive and act upon all petitions for confirmation of such claims. Its decision was subject to appeal to the district court of the United States, and thence to this court. As originally organized the commission was to continue for three years, but that time was extended by subsequent legislation. Sections 8, 13, 15, and 16 are as follows:

state of Louisiana,' approved third March, one thousand eight hundred and thirty-one: Provided, always, That if the title of the claimant to such lands shall be contested by any other person, it shall and may be lawful for such person to present a petition to the district judge of the United States for the district in which the lands are situated, plainly and distinctly setting forth his title thereto, and praying the said judge to hear and determine the same, a copy of which petition shall be served upon the adverse party thirty days before the time* appointed for* hearing the same: And provided, further, That it shall and may be lawful for the district judge of the United States, upon the hearing of such petition, to grant an injunc tion to restrain the party at whose instance the claim to the said lands has been confirmed, from suing out a patent for the same, until the title thereto shall have been finally decided, a copy of which order shall be transmitted to the Commissioner of the General Land Office, and thereupon no patent shall issue until such decision shall be made, or until sufficient time shall, in the opinion of the said judge, have been allowed for obtaining the same; and thereafter the said

by the said commissioners, or by the uistrict or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.

"Sec. 8. That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government shall present the same to the said commissioners when sit-injunction shall be dissolved." ting as a board, together with such documen- "Sec. 15. That the final decrees rendered tary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence, and upon the evidence produced in behalf of the United States, and to decide upon the validity of the said claim, and, within thirty days after such decision is rendered, to certify the same, with the reasons on which it is founded, to the district attorney of the United States in and for the district in which such decision shall be rendered."

"Sec. 13. That all lands, the claims to

"Sec. 16. That it shall be the duty of the commissioners herein provided for to ascer tain and report to the Secretary of the Interior the tenure by which the mission lands are held, and those held by civilized Indians, and those who are engaged in agriculture or labor of any kind, and also those which are occupied and cultivated by Pueblos Rancheros Indians."

or

On the trial before the court, without a | shall be considered abandoned. "Undoubtjury, the findings of fact were in substance edly private rights of property within the that the plaintiffs had the ownership in fee ceded territory were not affected by the simple of the premises described; that the change of sovereignty and jurisdiction, and defendants had no rights or interest therein, were entitled to protection, whether the and the decree was in accordance therewith. party had the full and absolute ownership The statement on appeal prepared by the of the land, or merely an equitable interest trial court disclosed that the plaintiffs in- therein, which required some further act of troduced in evidence the patent to John J. the government to vest in him a perfect title. Warner, which patent recited the filing of a But the duty of providing the mode of sepetition by Warner with the land commis- curing these rights, and of fulfilling the obsion praying for confirmation of his title, ligations imposed upon the United States by a title based on two Mexican grants,-one the treaties, belonged to the political departJune 8, 1840, to José Antonio Pico by Juan ment of the government; and Congress B. Alvarado, then constitutional governor might either itself discharge that duty or of the Californias, and the second, November delegate it to the judicial department. De 28, 1844, to petitioner by Manuel Michel- la Croix v. Chamberlain, 12 Wheat. 599, 601, torena, governor general commandant and 602, 6 L. ed. 741, 742; Chouteau v. Eckhart, inspector general of the Californias; recited 2 How. 344, 374, 11 L. ed. 293, 305; Tamelalso a decree of confirmation of such title, ing v. United States Freehold & Emigration an appeal to the district court of the United Co. 93 U. S. 644, 661, 23 L. ed. 998, 1002; States, and an affirmance of the decision of Botiller v. Dominguez, 130 U. S. 238, 32 L. * the commission, the return of the surveyor ed. 926, 9 Sup. Ct. Rep. 525." Astiazaran v. general of the state showing a survey; and Santa Rita Land & Min. Co. 148 U. S. 80, conveyed the premises to Warner, "but with 81, 37 L. ed. 376, 13 Sup. Ct. Rep. 457. the stipulation that in virtue of the 15th Botiller v. Dominguez, 130 U. S. 238, 32 section of the said act neither the conforma- L. ed. 926, 9 Sup. Ct. Rep. 525, the last case tion of this claim nor this patent shall af- cited in the foregoing quotation, deserves fect the interests of third persons." It was special notice. The supreme court of Caliadmitted that Warner's title had passed to fornia had held in several cases that a perplaintiffs, and that the taxes had all been | fect title need not be presented to the land paid by them. On the other hand, the ap-commission; that it was recognized by the peal statement showed that the defendants offered copies of the expedientes of both of the grants referred to in the patent, and also oral testimony of occupation by the defendants and their ancestors. Some witnesses were introduced by the plaintiffs to contradict this matter of occupancy, but on final consideration the court struck out all the testimony in reference to occupancy and of the Mexican grants upon which the patent was issued. Upon the evidence, therefore, that was received by the trial court, there could be no doubt of the rightfulness of the decree, and the question presented by the record to the supreme court of the state was whether there was error in striking out the testimony offered on behalf of the defense.

treaty of cession, and required no further confirmation; that the act to ascertain and settle private land claims applied only to those titles which were imperfect and needed the action of some tribunal to ascertain and establish their validity. But in this case, which came from the supreme court of California, we held the contrary. We quote at some length from the opinion. Thus, on page 246, L. ed. 928, Sup. Ct. Rep. 527, it was said:

"Two propositions under this statute are presented by counsel in support of the decision of the supreme court of California. The first of these is that the statute itself is invalid, as being in conflict with the provisions of the treaty with Mexico, and violating the protection which was guaranteed by it to the property of Mexican citizens, owned by them at the date of the treaty; and also in conflict with the rights of property under the Constitution and laws of the United States, so far as it may affect titles perfected under Mexico. The second proposition is that the statute was not intended

to apply to claims which were supported by a complete and perfect title from the Mexi can government, but, on the contrary, only were imperfect, inchoate, and equitable in their character, without being a strict legal title.

to such as

"With regard to the first of these propositions it may be said that so far as the act of Congress is in conflict with the treaty with Mexico, that is a matter in which the court is bound to follow the statutory enactments of its own government. If the treaty was violated by this general statute enacted for the purpose of ascertaining the validity of claims derived from the Mexican govern

489

into a court of justice to contest his title to it. This may be done by another individual, or by the government under which he lives. It is a necessary part of a free gov. ernment, in which all are equally subject to the laws, that whoever asserts rights or exercises powers over property may be called before the proper tribunals to sustain them."

ment, it was a matter of international con- | bly or by a strict legal title, to private percern, which the two states must determine sons. Every person owning land or other by treaty, or by such other means as enables property is at all times liable to be called one state to enforce upon another the obligations of a treaty. This court, in a class of cases like the present, has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disregard. The Cherokee Tobacco, 11 Wall. 616, sub nom. 207 Half Pound Papers Smoking Tobacco v. United States, 20 L. ed. 227; Taylor v. Morton, 2 Curt. C. C. 454, Fed. Cas. No. 13,799; Head Money Cases, 112 U. S. 580, 598, sub nom. Edye v. Robertson, 28 L. ed. 798, 803, 5 Sup. Ct. Rep. 247; Whitney v. Robertson, 124 U. S. 190, 195, 31 L. ed. 386, 388, 8 Sup. Ct. Rep. 456."

In reference to the second proposition, after noticing several provisions of the statute, it was declared (p. 248, L. ed. 929, Sup. Ct. Rep. 527):

The views thus expressed have been several times reaffirmed by this court, the latest case being Mitchell v. Furman, 180 U. S. 402, 45 L. ed., 21 Sup. Ct. Rep. 430, in which, after quoting the passage last above quoted, we said, in reference to statutes of the United States respecting claims in Florida (p. 438, L. ed. Sup. Ct. Rep. 444):

"We are of opinion that these acts applied and were intended to apply to all claims, whether perfect or imperfect, in that particular resembling the California act; "It is not possible, therefore, from the that the courts were bound to accept their language of this statute, to infer that there provisions; and that there was no want of was in the minds of its framers any distinc- constitutional power in prescribing reasontion as to the jurisdiction they were confer-able limitations operating to bar claims if ring upon this board, between claims derived the course pointed out were not pursued." from the Spanish or Mexican government, See also Thompson v. Los Angeles Farmwhich were perfect under the laws of those ing & Mill. Co. 180 U. S. 72, 77, 45 L. ed. governments, and those which were incipient, 21 Sup. Ct. Rep. 289, in which it was said imperfect, or inchoate. It was in reference to the statute before us: equally important to the object which the United States had in the passage of it, that claims under perfect grants from the Mexican government should be established as that imperfect claims should be established or rejected.

"The superior force which is attached, in the argument of counsel, to a perfect grant from the Mexican government, had its just influence in the board of commissioners or in the courts to which their decisions could be carried by appeal. If the title was perfect it would there be decided by a court of competent jurisdiction, holding that the claim thus presented was valid; if it was not, then it was the right and the duty of that court to determine whether it was such a claim as the United States was bound to respect, even though it was not perfect as to all the forms and proceedings under which it was derived. So that the superior value of a perfected Mexican claim had the same influence in a court of justice which is now set up for it in an action where the title is contested.

"Nor can it be said that there is anything unjust or oppressive in requiring the owner of a valid claim, in that vast wilderness of lands unclaimed, and unjustly claimed, to present his demand to a tribunal possessing all the elements of judicial functions, with a guaranty of judicial proceedings, so that his title could be established if it was found to be valid, or rejected if it was invalid.

"We are unable to see any injustice, any want of constitutional power, or any violation of the treaty, in the means by which the United States undertook to separate the lands in which it held the proprietary interest from those which belonged, either equita

"Every question which could arise on the title claimed could come to and receive judg ment from this court. The scheme of adjudication was made complete and all the purposes of an act to give repose to titles were accomplished. And it was certainly the purpose of the act of 1851 to give repose to titles. It was enacted not only to fulfil our treaty obligations to individuals, but to settle and define what portion of the acquired territory was public domain. It not only permitted but required all claims to be presented to the board, and barred all from future assertion which were not presented within two years after the date of the act. § 13. The jurisdiction of the board was necessarily commensurate with the purposes of its creation, and it was a jurisdiction to decide rightly or wrongly. If wrongly a corrective was afforded, as we have said, by an appeal by the claimant or by the United States to the district court."

These rulings go far toward sustaining the decision of the supreme court of California in the present cases. As between the United States and Warner, the patent is as conclusive of the title of the latter as any other patent from the United States is of the title of the grantee named therein. As between the United States and the Indians, their failure to present their claims to the land commission within the time named made the land, within the language of the statute, "part of the public domain of the United States." "Fublic domain" is equivalent to "public lands," and these words have acquired a settled meaning in the legislation of this country. "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal

*491

were subjected by the action of some prior government to a right of permanent occupancy, for in the latter case the right, which is one of private property, antecedes and is superior to the title of this government, and limits necessarily its power of disposal. Surely a claimant would have little reason for presenting to the land commission his claim to land, and securing a confirmation of that claim, if the only result was to transfer the naked fee to him, burdened by an Indian right of permanent occupancy.

under general laws." Newhall v. Sanger, 92 U. S. 761, 763, 23 L. ed. 769. "The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws." Bardon v. Northern P. R. Co. 145 U. S. 535, 538, 36 L. ed. 806, 809, 12 Sup. Ct. Rep. 856, 857. See also Mann v. Tacoma Land Co. 153 U. S. 273, 284, 38 L. ed. 714, 717, 14 Sup. Ct. Rep. 820. So far, therefore, as these Indians are concerned, the land is rightfully to be regarded as part of the public domain and Again, it is said that the Indians were, subject to sale and disposal by the govern- prior to the cession, the wards of the Mexi ment, and the government has conveyed to can government, and by the cession became Warner. It is true that the patent, follow-the wards of this government; that thereing the 15th section of the act, in terms pro- fore the United States are bound to protect vides that the patent shall not "affect the their interests, and that all administration, interests of third persons," but who may if not all legislation, must be held to be intake advantage of this stipulation? This terpreted by, if not subordinate to, this question was presented and determined in duty of protecting the interests of the Beard v. Federy, 3 Wall. 478, 18 L. ed. 88, wards. It is undoubtedly true that this gov and the court, referring to the effect of a ernment has always recognized the fact that patent, said (pp. 492, 493, L. ed. p. 93): the Indians were its wards, and entitled to "When informed, by the action of its tri- be protected as such, and this court has unibunals and officers, that a claim asserted is formly construed all legislation in the light valid and entitled to recognition, the govern- of this recognized obligation. But the obment acts, and issues its patent to the claim- ligation is one which rests upon the political This instrument is therefore record department of the government, and this evidence of the action of the government court has never assumed, in the absence of upon the title of the claimant. By it the congressional action, to determine what government declares that the claim asserted would have been appropriate legislation, or was valid under the laws of Mexico; that it to decide the claims of the Indians as was entitled to recognition and protection by though such legislation had been had. Our the stipulations of the treaty, and might attention has been called to no legislation by have been located under the former govern- Congress having special reference to these ment, and is correctly located now, so as to particular Indians. By the act creating the embrace the premises as they are surveyed land commission the commissioners were reand described. As against the government quired (§ 16) "to ascertain and report to this record, so long as it remains unvacated, the Secretary of the Interior the tenure by is conclusive. The term 'third per- which the mission lands are held, and those sons,' as there used, does not embrace all held by civilized Indians, and those who are persons other than the United States and engaged in agriculture or labor of any kind, the claimants, but only those who hold su- and also those which are occupied and cultiperior titles, such as will enable them to re-vated by Pueblos or Rancheros Indians." It sist successfully any action of the government in disposing of the property."

ant.

is to be assumed that the commissioners performed that duty, and that Congress, in the discharge of its obligation to the Indians, did all that it deemed necessary, and as no action has been shown in reference to these particular Indians, or their claims to these lands, it is fairly to be deduced that Congress considered that they had no claimз which called for special action.

But we are not compelled to rest upon any presumptions from the inaction of Congress. Turning to the testimony offered in respect to the matter of occupation, it may be stated that there was sufficient to call for

If these Indians had any claims founded on the action of the Mexican government they abandoned them by not presenting them to the commission for consideration, and they could not, therefore, in the language just quoted, "resist successfully any action of the government in disposing of the property." If it be said that the Indians do not claim the fee, but only the right of occupation, and therefore they do not come within the provision of § 8 as persons "claiming lands in California by virtue of any right or title derived from the Spanish or Mexi-a finding thereon if the fact of occupation can government," it may be replied that a claim of a right to permanent occupancy of land is one of far reaching effect, and it could not well be said that lands which were burdened with a right of permanent occupancy were a part of the public domain and subject to the full disposal of the United States. There is an essential difference beetween the power of the United States over lands to which it has had full title, and of which it has given to an Indian tribe a temporary occupancy, and that over lands which

was controlling. But in the Mexican grants upon which Warner based his application to the commission for a confirmation of his title we notice these things: The first grant was in 1840, to José Antonio Pico. The application was for "the place 'Agua Caliente,' belonging to the mission of San Luis Rey, since it is not needed by the said mission, having a house on it, and an orchard of little utility." The report of the justice of the peace was "that the land 'Agua Caliente' is the property of the San Luis Rey mission,

*494

which has improvements, buildings, and an orchard, from which derive their subsistence the Indians who live thereon, which is bounded by the property of Joaquin Ortega, and I believe it can be awarded to the interested party for being worthy, but without prejudice to the Indians, who from it derive their support."

The last paper in the expediente was the following:

Juan B. Alvarado, Constitutional Governor of the Department of both Californias: Whereas José Antonio Pico has petitioned for his own personal benefit and that of his family the land known by the name of "Agua Caliente," bounded by the ranch of "San José Valley," with the boundary of the canyon of "Buena Vista," and by the mountains of "Palomar," having previously complied with the writs and investigations corresponding, as required by the laws and regulations, exercising the powers which are conferred on me in the name of the Mexican nation, I have resolved to grant to him the said place, subjecting himself to pay for the place of worship and other improvements that be there, belonging to the San Luis Rey mission, and not molest (prejudicar) the Indians that thereon may be established, and to the approbation of the most excellent assembly of the department, and to the conditions following, to wit:

* First. He is allowed to fence it in, without interfering with the roads, cross roads, and other usages (servidumbres); he will possess it fully and exclusively, turning it to agricultural or any other use he may see fit, but within a year he shall construct a house thereon and live in it.

Second. When the property shall have been confirmed to him, he shall petition the respective judge to give him possession thereof, by virtue of this order, and shall mark out the boundaries on whose limits he shall fix the landmarks, some fruit and wild trees that may be of some utility.

The grant was in these words:

"The citizen, Manuel Micheltorena, general of brigade of the Mexican army, adjutant general of the same, governor general, commander, and inspector of both Californias:

"Whereas Juan José Warner, Mexican by naturalization, has petitioned for his own personal benefit, and that of his family, the land known by the name 'Valle de San José,' bounded on the east by the entrance into San Felipe and the mountain, on the west by the Third. The land of which donation is mountain and canyon of Aguanga; and on hereby made is of the extent mentioned in the north bounded by the mountain, and the the plan, which goes with the "expediente." boundaries on the south being the 'Carrizo' The judge who should give possession thereof and the mountain; having previously comshall have it surveyed according to law, leav-plied with the notices and investigations on ing the residue that may result to the nation such matters as prescribed by the laws and for other purposes. regulations, exercising the powers conferred on me in the name of the Mexican nation, I have resolved to grant him the said land, declaring it by these presents his property, subject to the approbation of the most excellent assembly of the department and to the conditions following, to wit:

Fourth. If he should fail to comply with these conditions, he shall forfeit his title to the land, and it will be denounceable by an

other.

Therefore, I command that this present order be to him the title, and holding it for good and valid, a copy thereof be entered into the proper book, and given to the party interested for his protection and other poses.

pur

No approval of this grant by the departmental assembly appears of record, but the finding of the commission was that whatever of right passed to Pico was transferred by conveyances to Warner. The second grant, that in 1845, was made directly to Warner,

"First. He will not be allowed to sell it,

to alienate it, nor to mortgage it, to place it under bond, or to place it under any obligation, nor give it away.

*495

"Second. He will be allowed to fence it in, without interference with the roads, and other usages (servidumbres). He will hold it freely and exclusively, turning it to ag riculture, or any other use he may please,* and he shall build a house on it within one year, and live in it.

"Third. He shall apply to the respective