Copyright © 1999
Russell Imrie

Updated February 17, 2009 10:42 PM

from Scotts Valley, CA

1. Who's Illegal(s) ?: Government and Public Policy, Failure and Genocide in California


California was a Spanish [later Mexican] colony from 1542 until the 1800's. The United States then assumed control from Mexico in 1846. In these years, Americans sought to "reclaim" Indians as a slave labor source and considered their government a failure for not forcing Indians into servitude against their wills. In 1847, the California Star recommended that the government implement laws to "subordinate" Indians for the benefit of farmers who were suffering because many Indians looked askance at peonage, what the Spanish had forced on them and what Americans expected to continue. The Star moaned about idle Indians:

"The vagrants should be schooled to labor -- the criminal offenders should be punished."

For Indians, it had become a crime against the United States to resist slavery. It had become a hell when "in no case shall a white man be convicted of any offence [sic] upon the testimony of an Indian" became law in 1850. It became genocide when the popular press proclaimed:

"we hope that the Government will render such aid as will enable the citizens of the north to carry on a war of extermination until the last redskin of these tribes has been killed. Extermination is no longer a question of time - the time has arrived, the work has commenced, and let the first man that says treaty or peace be regarded as a traitor." (Yreka Herald, 1853)

2. The United States acknowledges free and total Indian title to California

Excerpts from reports from the U.S. Senate on the 18 treaties with the California Peoples which were undertaken in order to extinguish the legally recognized Native title to the lands they occupied. (Anderson)

The United States Senate asked Senator Fremont to research the legal status of California's Indians under the Treaty of Guadeloupe Hidalgo before negotiating treaties with the tribes. He reported:

"The general policy of Spain...was recognized by the United States...Indian right of occupation was respected...whenever the policy of Spain differed from that of other European nations, it was always in favor of the Indians." Indian rights extended even to alienation under Spanish Laws. "a right recognized and confirmed in the decisions of the Supreme Court of the United States. A claim to lands in East Florida under a title derived from grants by the Creek and Seminole Indians, and ratified by the local authorities before the cession of Florida, was confirmed."(1)

"...statements I have given you, Mr. President ...show that ...Spanish law clearly and absolutely secured to Indians fixed rights of property in the lands that they occupy...and that some particular provision will be necessary to divest them of these rights." "Our occupation is in conflict with theirs...to render this occupation legal and equitable...I have introduced this bill (to enact negotiations)... recommends...the favor-able [sic] consideration of the Senate...by its obvious necessity...because it is right in itself...because it is politic...and because it is conformable to the established custom of this Government." (2)

2.a. The treaties were a joke... Read what the Sup. of Indian Affairs writes - the treaties just aren't bad enough! no one has any ideas on how to make them worse!

(Analysis of Tribes Signing the 18 Unratified 1851-1852 California Treaties - Heizer 1955) This document (which by the way actually contains no specific analysis of any tribe but only written opinions on the usefulness of actually ratifying the treaties in the U.S. Senate and so can be seen as more of a "legislative analysis" for the purposes of congressional deliberations and/or strategic parliamentary planning), two commissioners rendered analyses of the treaties.
Commissioner (Dept. of the Interior, Office of Indian Affairs) L. Lea writes: "...delegation in Congress from California were opposed to the Treaties...was VIOLENT (emp. mine) opposition in state legislature...hasty rejection would be followed by a general Indian War in California...impractical to move Indians from State...novel solution is to move them to areas out of their natural are...expediting of withdrawing them from intermixing with white population."
Superintendent (of Indian Affairs for the State of California, Washington City, D.C.) E. F. Beale (Beale in wikipedia) writes: on p. 21" ...government recognizes their right to possessory right to all soil inhabited by them." On p. 22 he writes:"...the reservation lands...are as only a half-starved and defenseless people could have consented to receive...only such lands as are unfit for mining or agricultural purposes...people who complain of the reservations in the State have, in no instance, been able to point out other locations less (emp. mine) objectionable or valuable than those already selected." The statements of Lea and Beale illustrate the contradictions of the Indian position and the evils inherent in the white position. Their [Indians] rights as inhabitants (in possession) of their land are clearly recognized. The absolute refusal of California representatives to consider the already negotiated treaties is discussed. The threat to life and limb looms. No alternative to the admittedly dysfunctional treaties as signed by the Indians seems apparent. Except the obvious one that cannot be vocalized, least of all by federal officials: extermination.Of course local Indian haters had no scruples about destroying Indians. The racial cleansing went on, built by an axis of evil.

Treaty "M", pertaining to Costanoan Territory concludes with "ART. 8. These articles of agreement-to be binding on the contracting parties when ratified and confirmed by the President and Senate of the United States of America.
In testimony whereof, the said parties have hereunto signed their names and affixed their seals upon the day and date above written.
REDIK McKEE G. W. BARBOUR O. M. WOZENCRAFT"

Thus without ratification, any further taking and settlement on Indian land was and is illegal...

3. Hate, Genocide and Manifest Destiny at work: Majority report of U.S. Senate denying consideration and debate in the matter of the treaties that had been signed by Indians

(excerpts from 1852): "....saw a policy...deeply affecting the present and future prosperity of the State." "...they (treaty commissioners) have undertaken to assign to the Indian Tribes, a considerable portion of the richest of our mineral lands." "...gentlemen have undertaken to assign a considerable portion of the latter (agricultural lands) to the Indian tribes, wholly incapable, by habit or taste, of appreciating its value." then why did Indians fight ?
"...they will...supply, to a great extent, what is so much needed, the labor, without which it will be long before California can feed herself."
"To take any...country...west of the Sierra Nevada...for the home of the wild and generally hostile Indians... we claim an undoubted right...to remove all Indian tribes beyond [sic]...limits of the State..."(3)

4. 150+ years of denial - the California Dream

Three treaty commissioners were sent to California in 1851 to deal with the Indians and to negotiate treaties . They did so and the Indians, yearning for peace, agreed to settle on reservations totaling 8.5 million acres and to cease fighting with squatters and miners. In 1851, appropriations for the treaty commissioners were cut from $75,000 to $25,000 after they had left for San Francisco via the Isthmus of Panama. They had spent $15,000 before even arriving. This final appropriation was obviously inadequate and it was so argued in Congress by a minority. The commissioners had to overspend. After the 18 treaties were negotiated and signed by the Indians in good faith, this spending was used [by some in Congress] to attack (based on obfuscation and dissimulation) to stall and then to justify sealing the treaties for 52 years! The real reason was capitalist greed and racial prejudice toward the California Indians by white Americans.
Reading of the accounts of the Congressional discussion on these treaties make it obvious that ratification was never a serious issue or that the budget arguments no more than a red herring. In 1854, this same Congress eagerly appropriated the huge sum of $1,000,000 to reimburse the State of California for bounties and claims paid to vigilantes and bounty hunters for expenses incurred while hunting down Indians, often massacring whole villages and indiscriminately slaughtering women and children. Slavery and bondage were legal for any "vagrant" Indian and virtually all Indians were, by definition, vagrants. Life and freedom were not. Ishi, a Yaqui man was the survivor of this butchery.

5. Rationalizing the killing

Americans used the alleged racial inferiority (compared to civilized white Americans) of California Indians to justify their treatment and attitudes toward them. Little or no religious sentiment was ascribed to Indians and domestic living arrangements "demonstrated" the subhuman status of the "Indian race." California Indians also were characterized by a very dark coloring of their skin so that meant they were automatically racially inferior. In the American discourse, the image of the noble red man had already become commodified by 1848 but California Indians were denied any such dubious "nobility." John Audubon stated that a Miwuk child looked and acted like a monkey. It was almost universally held by Americans that California's Indians were animals. This justified a self-serving process of extermination by white Americans and its acceptance by any American who may have been stirred by conscience. A forty-niner wrote that:

"Whites in California hunted Indians 'as though they were wild beasts' and shot them 'with as much nonchalance as though they were squirrels.'"

This degradation of people and families, of children, men and women, of grandparents was necessary to make the extermination process in California possible, why it became law and practice, and why its vestiges continue today, and why it must be resisted.

6. The laws and the practice of America and of California, violating the Constitution

In April of 1850, at San Jose, "An Act for the Government and Protection of Indians" was passed. Based on the rationale that Indians were utterly without human value other than as bonded servants for white Americans, it assured the peon status of California's Indians in the new state. Ostensibly, whites were prohibited from working any Indian against his or her will. After all this is the United States! Yet the law stated that any able-bodied Indian could be arrested for vagrancy and hired out by the court within twenty-four hours for up to 4 months. In effect, any Indian without visible support, documentation, and not guilty of any crime could be enslaved, and thousands and thousands were. The 1850 law also made juvenile "apprenticeship" a legal practice. A white master just had to prove to the judge that the possession of a child was freely obtained to receive a certificate of "care, custody, and control" until the child reached adulthood. The hypocrisy of the California laws which said that Indians could not be compelled to work for anyone but that an unemployed or unindentured Indian was guilty of breaking the law by being idle or vagrant was an outrage. The whites had taken it upon themselves to determine how to make Indians useful, and to steal their lands and futures at the same time.
A pattern was thus set that carries through to this day of American determination of and interference in national and indigenous communities throughout the Americas [that are deemed vital to American whim and interests.] This law wasn't judged good enough by influential Californians and after 10 years of slavery and butchery of the Indians, State assemblyman Lewis M. Burson of Humboldt County subsequently "upgraded" an amendment to the law in 1860 that stated:

"any person wishing to obtain Indian children could appear before a county or district judge to prove that the children had been obtained with the consent of their parents or the consent of 'persons having the care or charge of such children.' This added phrase was purposefully ambiguous: in practice it would allow Indian children to be obtained from third parties and clearly without parental consent." (Rawls)

This law also went further and stated that any person could obtain Indians, adults or children, who had no home or settlement, were not already under the "protection" of a white person, or who were prisoners of war (but in the United States, only a foreign power can declare a state of war so these indigenous people obviously were a sovereign nation or they could not be "prisoners of war"). All a white person had to do was appear before a judge and assert that a certain Indian or Indians were "homeless" and they were found "guilty" of any of these crimes and be legally bound into servitude, children under 14 until 25 years of age and those 14 to 20 until 30 years of age. Adult sentences were limited to 10 years per "offence." [Sic] Of course, Indians could not testify in court in any way to fight this law and all were homeless since they were not legal immigrants who could homestead or settle, or even own land.
In fact, many of these newly "useful" Indians didn't even know that they had been accused, tried, and found guilty and sentenced to slavery until rounded up out of the blue or were shot criminally escaping into "vagrancy."

7. Labor and commerce: The Economic Rationale for Oppression in the Americas is Born

Under this horrific existence, California's Indians hid, denied their tribal ties, migrated and many, many died. By 1890 there were only 15,283 Indians in the state. (Petersen)

There were problems with Indian laborers: they still held pretensions on "American Land" and lived on it so they were poor examples for an economy based on slavery and African American and Chinese indentured labor. They give ideas of genuine independence and freedom by their very existence. The California Congressional delegation knew this and exerted tremendous pressure and manipulated Congress into supporting an illegal and immoral seizure of lands from the legal and historical titleholders. The [modern] pattern of immigration and the "illegal alien" thus began as a technique used against the very families and populations who lived here for thousands of years before the United States even existed and made these people homeless in an inhuman holocaust that boggles the mind.

Chinese immigration began to take up the slack of the missing Indian labor.

8. The hidden Indian story

The anthropological and historical records (compiled by white historians and white research) would seem to indicate to us, two or three lifetimes later, that all [California] Indians numbly went along with this holocaust. That may help assuage the odd conscience or so but in fact, resistance was growing in range and in intensity from 1820-1830. (Cook) As a group, Indians were evolving and adapting to the stresses of invasion. In the Missions, escape was a constant [Indian tactic] and problem [for the missions] and replenishing the supply of Indian "raw materials" for conversion to Catholicism and for labor was growing increasingly difficult. Missions Santa Cruz and San Juan Bautista had a large population of Yokuts people - the remaining locals had taken to the hills. Whole villages would be found empty when Padres and soldiers appeared. Indian war leaders emerged from the former peaceful and sedentary people of California. Pomponio, Joscolo and Estanislao became feared in the white ranchos and settlements. In 1797, Raymundo el Californio was a leader of a Spanish expedition of 40 into the wilds of Contra Costa County after runaway Indian converts. They were wiped out in an attack by the "wild" Indians. Again in 1797, 100 "civilized" Indians made their escape into the rancherias of the Sacramento delta but were massacred by indigenous Indians who wanted no part of the influence of the missions. Only 30 made it back to their dismal fate with the Spanish. Another expedition into the delta of 12 soldiers and more than one hundred auxiliaries was routed by the Indians. Estanislao led his people (Miwuk) as they built breastworks and defeated a force led by General Vallejo. The Indians were preventing settlement everywhere but near the coast. Stolen horses gave new power to Indian raiders and losses of livestock were tremendous. General Vallejo in 1834 proposed attacking the Indians' fortified camps in the hills around the Santa Clara Valley and in 1836, San Jose citizens desperately petitioned the governor for help. In 1838, Monterey farmhands were killed by the Indigenous peoples and the Santa Clara Mission grain storehouses were attacked in 1839. Over one thousand head of cattle were run off from San Luis Obispo Mission in 1840 and San Juan Bautista Mission was attacked by the resentful and combative Indians. In 1843, a stockade in Pacheco Pass (state highway route 152) was proposed by the Spanish, who were now on the defensive. It is possible that equilibrium might have arrived and an accommodation reached or the Spanish invaders totally driven out by Native Americans but more Euro-Americans invading from the rear cut off that likelihood.
As an adaptable people, the Indians were learning the ways of the violent and organized newcomers. The free Indians on their own lands were adapting much better than the Mission Indians as they exercised their potential in a competitive environment where they still drew on their traditional resources. Psychologically, the free Indians were adapting adequately but this was disrupted when American encroachment occurred.

1 Recognition (By Senator John C. Fremont) in Congressional Committee of legal Indian title to California and the necessity of it's "extinction" in the gold mining districts. (8)
2 ibid (10)
3 p 38-41 "Majority Report of U.S. Senate" invoking racism, "outrage", state and local squatter influence, etc. on decision whether to deny or to proceed in a legal and humane manner with the 18 treaties. (from Anderson)

Annotated Bibliography

Anderson, George E. W.H. Elison and Robert F. Heizer. Treaty Making and Rejection by the Federal Government in California, 1850-1852 . Menlo Park: Ballena Press, 1978.
A very comprehensive account of Congressional wrangling, politics, and American genocide in action during the California Indian treaty process - contains sources not attainable through the government or Congressional Record since the treaties were technically NEVER DEBATED and locked away - obviating further discussion on their merits and virtually dooming most of California's 300,000 Indians to legal limbo and death.

Bean, Walton. California, an Interpretive History . New York: McGraw-Hill, 1983.
Bean is an excellent source on population information, early racial and legal history including Whites, Chinese, Mexican, and others enjoying the American dream and freedom in the new state, as well as indigenous tribes of California Indians.

Chavez, Leo R. Shadowed Lives: Undocumented Immigrants in American Society . San Diego: Harcourt Brace Publishers, 1992.
A comprehensive look at today's undocumented worker issue in California.

Cook, Sherburne F. "Conflict Between The California Indian And White Civilization." The California Indians: A Source Book . R F. Heizer and M. A. Whipple. 2nd ed. Berkeley: University of California Press, 1971. 562-571.

Heizer, R.F., 1955, "Analysis of Tribes Signing the 18 Unratified 1851-1852 California Treaties" (Later Published as an ARF Non-Serial) with Preface by A.L. Kroeber. Including Map Showing Actual Territory Controlled by the Identifiable "Tribal" Groups (scale 1:1, 000, 000) (by R.F. Heizer,1955). (Phoebe Hearst Museum, University of California Berkeley)

Kroeber, Alfred Lewis. in "California's Indians and Public Persuasion Part 3." Noso-n Nov, 1994: 7.
Transcript of a presentation at San Francisco's Commonwealth Club on October 13, 1909.

Petersen Esq., J. "The Special Status of California Indians: An Overview of the Historical Factors Which Have Contributed to the Special Status of California Indians." Noso-n Nov, 1993: 1,6,7,8.
A transcription of testimony presented to the Honorable Bill Richardson, Chairman of the Subcommittee on native American Affairs

Rawls, James J. Indians of California: The Changing Image . Norman: University of Oklahoma Press, 1984.
A high-impact compendium of quotes, sources and synthesis on the fact and fancy that so tragically impacted California Indians, from the 16th century to today.


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