Western Settlement

(It is suggested that the reader familiarize himself with the property concepts of "natural law" or "natural equity" presented in Part I   and the sections on "western wastelands" and "equal footing" in Part II. )

With the 1848 signing of the Treaty of Guadalupe Hidalgo between the United States and the Republic of Mexico, the U.S. claimed the lands within much of the West as "Territory" of the United States. In implementing the provisions established under the U.S.- Mexico Treaty, U.S. land patents would first be awarded in validation of claims of those who could prove ownership under prior Spanish/Mexican land grants.

The California Land/Boundary Commission established under the Federal Land Act adjudicated these claims. (No claims were made for lands located within Siskiyou County.)

"A patent of the United States issued to a confirmance of a Spanish or an grant under the act of Congress of March 3, 1851, 9 Stat. 633, treated simply as the deed of the United States, is in its operation, like the deed of any other grantor, and passes only such interest as the United States possessed; the deed taking effect by relation at the date of the presentation of the petition of the patentee to the board of land commissioners. But such patent is not merely a deed of the United States. It is a record of the government - of its action and judgment with respect to the title of the patentee existing at the date of the cession of California - and as such record is conclusive evidence of the title of the patentee at the time the jurisdiction of the subject passed from the Mexican government to the United States." ( Leese v. Clark, 20 Cal. 387, 412.)

In addition to obligations under international treaties, land disposal was effected by national obligations to native Amercan tribes.In the first Trade and Intercourse Act, ch. 33 1 Stat. 137 (1790) Congress provided that non-Indians could not acquire lands directly from Indians.  In the 1823 Supreme Court case of Johnson v. McIntosh it was established that continued Indian "right of occupancy" and use of land could only be extinguished by the federal government through conquest, purchase or appropriation.

Until the United States extinguished "original Indian title," a cloud of Indian occupancy right remained on the individual's title. The national authority of the "federal land patent" became the vehicle by which the individual's legal title in the lands became perfected. The authority of the federal patent, by necessity, could not be challenged by competing State authority to determine what qualified as property without leaving original Indian title unextinguished. In this manner, the federal government has strategically retained control over the recognition of any legal title ripening through possessory interest.