Defining Native American Rights and Limits
STATUTES OF CALIFORNIA, An Act for the Government and Protection of Indians (1850)
California entered the Union on September 9, 1850, having ratified its state constitution the year before forbidding slavery and declaring that “all men are by nature free and independent.” Thus it embraced the rhetoric of the U.S. Constitution. However, on April 22, 1850, more than four months before officially entering the Union, the state Senate and Assembly passed legislation ostensibly for the protection of Native Americans that in reality restricted them, evidence of the state’s narrow and exclusive interpretation of Bill of Rights protections.
The People of the State of California, represented in Senate and Assembly, do enact as follows:
SECTION 1. Justices of the Peace shall have jurisdiction in all cases of complaints by, for or against Indians, in their respective townships in this State.
SEC. 2. Persons and proprietors of land on which Indians are residing, shall permit such Indians peaceably to reside on such lands, unmolested in the pursuit of their usual avocations for the maintenance of themselves and families: Provided; the white person or proprietor in possession of lands may apply to a justice of the peace in the township where the Indians reside, to set off to such Indians a certain amount of land, and, on such application, the justice shall set off a sufficient amount of land for the necessary wants of such Indians, including the site of their village or residence, if they so prefer it; and in no case shall such selection be made to the prejudice of such Indians, nor shall they be forced to abandon their homes or villages where they have resided for a number of years; and either party feeling themselves aggrieved, can appeal to the county court from the decision of the justice: and then divided, a record shall be made of the lands so set off in the court so dividing them, and the Indians shall be permitted to remain thereon until otherwise provided for.
SEC. 3. Any person having or hereafter obtaining a minor Indian, male or female, from the parents or relations of such Indian minor, and wishing to keep it, such person shall go before a justice of the peace in his township, with the parents or friends of the child, and if the justice of the peace becomes satisfied that no compulsory means have been used to obtain the child from its parents or friends, shall enter on record, in a book kept for that purpose, the sex and probable age of the child, and shall give to such person a certificate, authorizing him or her to have the care, custody, control, and earnings of such minor, until he or she attain the age of majority. Every male Indian shall be deemed to have attained his majority at eighteen, and the female at fifteen years.
SEC. 4. Any person having a minor Indian in his care, as described in the foregoing section of this act, who shall neglect to clothe and suitably feed such minor Indian, or shall inhumanely treat him or her, on conviction thereof shall be subject to a fine not less than ten dollars, at the discretion of a court or jury; and the justice of the peace, in his own discretion, may place the minor Indian in the care of some other person, giving him the same rights and liabilities that the former master of said minor was entitled and subject to.
SEC. 5. Any person wishing to hire an Indian, shall go before a justice of the peace with the Indian, and make such contract as the justice may approve, and the justice shall file such contract in writing in his office, and all contracts so made shall be binding between the parties; but no contract between a white man and an Indian, for labor shall otherwise be obligatory on the part of the Indian.
SEC. 6. Complaints may be made before a justice of the peace, by white persons or Indians; but in no case shall a white man be convicted on any offence upon the testimony of an Indian, or Indians. And in all cases it shall be discretionary with the court or jury after hearing the complaint of an Indian.
SEC. 7. If any person forcibly conveys any Indian from his home, or compels him to work, or perform any service against his will, in this state, except as provided in this act, he or they shall, on conviction, be fined in any sum not less than fifty dollars, at the discretion of the court or jury.
SEC. 8. It shall be the duty of the justices of the peace, once in six months in every year, to make a full and correct statement to the court of sessions of their county, of all moneys received for fines imposed on Indians … and the treasurer shall keep a correct statement of all money so received, which shall be termed the “Indian fund” of the county. The treasurer shall pay out any money of said funds in his hands … for fees and expenditures incurred in carrying out the provisions of this law.
SEC. 9. It shall be the duty of the justices of the peace, in their respective townships, as well as all other peace officers in this state, to instruct the Indians in their neighborhood in the laws which relate to them, giving them such advice as they may deem necessary and proper; and if any tribe or village of Indians refuse or neglect to obey the laws, the justice of the peace may punish the guilty chiefs or principal men by reprimand or fine, or otherwise reasonably chastise them.
SEC. 10. If any person or persons shall set the prairie on fire, or refuse to use proper exertions to extinguish the fire when the prairies are burning, such persons shall be subject to fine or punishment, as court may adjudge proper.
SEC. 11. If any Indian shall commit an unlawful offence against a white person, such person shall not inflict punishment for such offence, but may, without process, take the Indian before a justice of the peace, and, on conviction, the Indian shall be punished according to the provisions of this act.
SEC. 12. In all cases of trial between a white man and an Indian, either party may require a jury.
SEC. 13. Justices may require the chiefs and influential men of any village to apprehend and bring before them or him any Indian charged or suspected of an offence.
SEC. 14. When an Indian is convicted of an offence before a justice of the peace punishable by fine, any white person may, by consent of the justice, give bond for said Indian, conditioned for the payment of said fine and costs, and in such case the Indian shall be compelled to work for the person so bailing, until he has discharged or cancelled the fine assessed against him: Provided; the person bailing shall treat the Indian humanely, and feed and clothe him properly; the allowance given for such labor shall be fixed by the Court, when the bond is taken.
SEC. 15. If any person in this State shall sell, give, or furnish to any Indian, male or female, any intoxicating liquors (except when administered for sickness), for good cause shown, he, she, or they so offending shall, on conviction thereof, be fined not less than twenty dollars for each offence, or be imprisoned not less than five days, or fined and imprisoned as the court may determine.
SEC. 16. An Indian convicted of stealing horses, mules, cattle, or any valuable thing, shall be subject to receive any number of lashes not exceeding twenty-five, or shall be subject to a fine not exceeding two hundred dollars, at the discretion of the court or jury.
SEC. 17. When an Indian is sentenced to be whipped, the justice may appoint a white man, or an Indian at his discretion, to execute the sentence in his presence, and shall not permit unnecessary cruelty in the execution of the sentence.
SEC. 18. All fines, forfeitures, penalties recovered under or by this act, shall be paid into the treasury of the county, to the credit of the Indian fund as provided in section eight.
SEC. 19. All white persons making application to a justice of the peace, for confirmation of a contract with or in relation to an Indian, shall pay the fee, which shall not exceed two dollars for each contract determined and filed as provided in this act, and for all other services, such fees are allowed for similar services under other laws of this state: Provided, the application fee for hiring Indians, or keeping minors, and fees and expenses for setting off lands to Indians, shall be paid by the white person applying.
SEC. 20. Any Indian able to work and support himself in some honest calling, not having wherewithal to maintain himself, who shall be found loitering and strolling about, or frequenting public places where liquors are sold, begging, or leading an immoral or profligate course of life, shall be liable to be arrested on the complaint of any resident citizen of the county, and brought before the justice of the peace of the proper county, mayor or recorder of any incorporated town or city, who shall examine said accused Indian, and hear the testimony in relation thereto, and if said justice, mayor, or recorder shall be satisfied that he is a vagrant … he shall make out a warrant under his hand and seal, authorizing and requiring the officer having him in charge or custody, to hire out such vagrant within twenty-four hours to the highest bidder.
Compiled Laws of the State of California: Containing all the Acts of the Legislature of a Public and General Nature, Now in Force, Passed at the Sessions of 1850–51–52–53, comp. S. Garfielde and F. A. Snyder (Boston: Press of the Franklin Printing House, 1853), 822–825.
READING AND DISCUSSION QUESTIONS