By Steven Newcomb
Sept 24, 2008

Two congressional bills - one passed in 1919 and the other in 1932 - granted the city of San Diego certain lands within the Cleveland National Forest and the Capitan Grande Indian Reservation for a reservoir and water storage system. Between the two bills, nearly 2,900 acres of the Capitan Grande Indian Reservation was taken over by the city and most of it flooded by waters from the San Diego River for the Capitan Grande Dam and reservoir system.

The hearing transcripts are both fascinating and maddening, particularly the 1918 testimony of Mr. Cato Sells, who was then U.S. Commissioner of Indian Affairs. (Sells, a Texas banker, was appointed to the post of Indian Commissioner by President Woodrow Wilson in 1912.)

A hearing on the first bill was held in 1918 before the House Committee on Public Lands. During the hearing, Mr. Sells testified in favor of H.R. 4037 to grant a right of way to the city of San Diego “for reservoir purposes, contingent upon payment to the Indians of adequate compensation for the rights sought.” At the urging of Congressman Taylor of California, the easement or “rights of way” language was evidently revised to a grant of the Kumeyaay (at that time called “Mission Indian”) reservation lands to the city of San Diego.

Although the BIA had initially expressed some opposition to the proposed dam project because of the negative effect it would have on the Indians, Sells had no such qualms. During his testimony, Sells displayed a remarkable knack for doublespeak.

With regard to the water needs of the city of San Diego, Sells stated: “I recognize the public interest in this situation and I desire to be responsive to the extent that I can, insofar as it shall in no wise interfere with the rights of the Indians … I am quite concerned that there shall not now or hereafter be a repetition of the historical iniquities [sins] that were inflicted upon the Mission Indians of California, and I am undertaking to guard that interest to the very best of my ability.”

So, Mr. Sells was proposing to have the Indians removed from their reservation lands in order to make it possible for the city of San Diego to flood some 2,000 acres of the Capitan Grande Indian Reservation, but he was going to do his best to not “interfere with the rights of the Indians” while allowing them to be ejected from their lands that they were held under a “trust patent” issued by the U.S. government.

Congressman Ferris of Oklahoma, the committee’s chairman, asked Mr. Sells: “Am I right in thinking that the government can take away a trust patent or not, as it sees fit?” Commissioner Sells said that yes, Congress could take away a trust patent.

Chairman Ferris then said: “I am not discussing whether or not that is the right thing. I do not think so.”

“Neither do I,” Commissioner Sells responded.” I have some very definite opinions on it.”

Chairman Ferris: “Nor [am I discussing] … whether it might leave a moral stain behind. I think that Congress has the right to take this land from these Indians - the bald, legal right to do so. I will lay that down. I do not say it is just, but I think the courts will support me in that.”

Ferris then asked Commissioner Sells about the possibility of adding to the bill “some sort of plebiscite or some provision for approval” by the Indians of their lands being taken over. Sells replied, “It is generally unfortunate to invite controversy that involves the attitudes of those [the Indians] whom we regard as incompetent. There are so many things … that [could] come about by way of agitation and influence that are undesirable.”

Chairman Ferris: “Violating every principle of right that we know….and if we put in a plebiscite condition here, there, of course, at once begins a pulling and hauling and seesawing back and forth to see who is in control. The water company out there who does not want it [the reservoir project] to go through will at once begin trying to control these Indians, and the city of San Diego will at once begin to go after these Indians, and, of course, 131 full-blood Indians who know little or nothing of their rights would be drawn into a controversy which they would not be able to comprehend or understand or act intelligently upon.”

Taking “trust patented” lands away from the Kumeyaay Indians would not violate “every principle of right” known to the congressmen, but the possibility of some “agitating” attorney coming forward who might fully inform the Indians of their rights would, in Chairman Ferris’s view, violate “every principle of right” that the congressmen knew.

As a result of the two bills being passed, some 500 Kumeyaay were removed from the Capitan Grande and Los Conejos reservations. The rest of the Capitan Grande reservation lands were made uninhabitable for lack of water. After the removal some of the Kumeyaay moved to the Baron Long Ranch (now the Viejas Indian Reservation). When winter hit, newborns, little children and elders died from the harsh conditions and lack of adequate shelter. Both the Viejas and Barona reservations were purchased with the monies paid by the city of San Diego for the Indian lands.

To use Chairman Ferris’ metaphor, the entire sordid episode has left a moral stain on the city of San Diego, the state of California, on the Interior Department and the BIA, as well as on the Congress of the United States.

Steven Newcomb, Shawnee/Lenape, is indigenous law research coordinator for the education department of the Sycuan Band of the Kumeyaay Nation and author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (Fulcrum 2008).
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Posted on September 24th, 2008 by hunwut
Filed under: History, Reservations