As a lawyer (now retired) I have often wondered about the legal status of Indian tribes. Recently a television ad suggested that Indian tribes had such governmental status and referred to a United States Supreme Court decision of 1824 as authority. I checked with the U.S. Supreme Court reports for 1824, but found no such case. However, in the 1823 cases there was the case of Johnson and Graham Lessee vs. M'intosh 21 U.S. 543 (1823). The first paragraph stated that "This was an action of ejectment for lands in the state and district of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant under a grant from the United States. It came up on a case stated upon which there was a judgment below for the defendant."

The "case stated" set forth in 24 paragraphs the past history of the land from 1609 to 1823. It mentioned in paragraph 7 that "before the commencement of the war in 1756 and during the whole continuance and at the time of the treaty of February 10, 1763, the Indian tribes or nations, inhabiting the country north and north-west of the Ohio, and east of the Mississippi, as far east of the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations."

The Supreme Court then heard the arguments of attorneys for both plaintiff and defendant and then made its decision. The plaintiffs had obtained two grants of land from Indian tribes, one in 1773 and the other in 1775. The defendant had obtained a grant of one of the lands from the United States in 1818. After the Declaration of Independence in 1776 the United States was governed by the United States and the matter was now in the United States court system. The following quotations are taken from the court decision that was delivered by Chief Justice Marshall as follows:

"On the discovery of this immense continent, the great nations of Europe were eager to appropriate for themselves so much of it as they could respectively acquire." "... it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle 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."

"While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy."

"The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles."

The Court then cited more history of acquisitions by European countries and that the right of discovery was the basis for their title and dominated by occupancy of the inhabitants. A few more quotations from the decision are as follows:

"It has never been doubted that either the United States, or the several states, had clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it."

"The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, by title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or be conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise."

"This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such as right is no more incompatible with a seisin in fee than a lease for years, and might as effectually bar an ejectment."

"It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right."

The judgment of the lower court was affirmed.

It appears conclusive that the United States government is the title holder of all Indian lands; that the Indians are occupants and can be divested of that occupancy by the government if it wishes to do so. The contention that an Indian tribe constitutes an sovereign nation is simply baseless.

All lands in California which, at the date of the treaty of Guadalupe Hidalgo, were in the occupancy of the Indian tribes were deemed abandoned and became a part of the public domain and subject to preemption, where no claims were presented to the land commissioners by the Indians within two years after the passage of the Act of Congress which provided for the ascertainment of the Indian claims thereto.

Section 6500 California G.C. (as revised 1968): As used in this article, "public agency" includes, but is not limited to, the federal government or any federal department or agency, this state, another state or any state department or agency, a county, county board of education, county superintendent of schools, city, public corporation, public district, or regional transportation commission of this state or another state.

An Indian tribe is not a public agency of any kind, nor do its members reside in California or an adjoining state, but in a reservation owned by the United States. Under the circumstances it does not seem to me that it qualifies as a public agency as defined by section 6500 G.C., nor does it appear to have any power that is "common to the contracting parties" as required by section 6502 G.C. The reason for including it appears to be its ability to finance the project, which I doubt is an acceptable reason.