Robinson v. Salazar

• Decision Date: 07 August 2012
• Docket Number: Case No. 09–cv–01977–BAM.
• Citation: 885 F.Supp.2d 1002
• Parties: David Laughing Horse ROBINSON, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

885 F.Supp.2d 1002

David Laughing Horse ROBINSON, et al., Plaintiffs,

v.Ken SALAZAR, et al., Defendants.

Case No. 09–cv–01977–BAM.

United States District Court,

E.D. California.

Aug. 7, 2012.

David Raymond Mugridge, Law Offices of David R. Mugridge, Fresno, CA, Michele Jackson, Michele L. Jackson, Attorney at Law, Irvine, CA, Barbara M. R. Marvin, United States Department of Justice, Washington, DC, for Plaintiffs.

Benjamin S. Sharp, PHV, Jena MacLean, PHV, Perkins Coie LLP, Washington, D.C., Vilma R. Palma, Perkins Coie LLP, Los Angeles, CA, Charles Frederick Collins, Kern County Counsel, Bakersfield, CA, for Defendants.

ORDER ON ALL DEFENDANTS' MOTIONS TO DISMISS (Doc. 219, 221, 223)

BARBARA A. McAULIFFE, United States Magistrate Judge.

Three motions to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1) and 12(b)(6) are pending before this Court: (1) motion by Tejon Mountain Village, LLC and Tejon Ranchcorp (doc. 221), (2) motion by County of Kern (doc. 219), and (3) motion by defendant Ken Salazar, in his capacity as the Secretary, U.S. Department of the Interior (doc. 223). Plaintiffs David Laughing Horse Robinson and Kawaiisu Tribe of Tejon filed oppositions, objections, and evidentiary support to their oppositions (see Doc. 233–235.) Moving parties filed reply briefs and supporting evidence. (See Doc. 236–238.) The parties have consented to the conduct of all proceedings before the assigned Magistrate Judge. The Court conducted a hearing on the motions on July 20, 2012. Plaintiffs appeared by telephone by counsel Michele Jackson, telephonically, and by Robert Wyrick, in person. Defendant Ken Salazar appeared by telephone by counsel Barbara Marvin and Barbara Coen. Defendants Tejon Mountain Village, LLC, Tejon Ranchcorp, and Tejon Ranch Corporation appeared by telephone by counsel Jena MacLean and Benjamin Sharp. Kern County appeared by telephone by counsel Charles Collins. Having considered the moving, opposition, and reply papers, including supporting evidence and objections, as well as the argument of counsel and the Court's file, the Court issues the following order.

FACTUAL OVERVIEW

The following factual overview is taken from the Third Amended Complaint (“TAC”). The well pled factual allegations are taken as true. In the interest of completeness, the Court repeats the allegations well-known to the parties even though this is the fourth time the complaint has been amended, and many of the allegations are the same as addressed in this Court's prior orders.

The overview of the case is that plaintiffs seek title, to occupy and use land, that they contend the United States guaranteed them pursuant to the 1849 Treaty with the Utah and by establishing the Tejon Indian Reservation in 1853. (TAC ¶ 1.)

A. The Plaintiffs

Plaintiff, the Kawaiisu Tribe of the Tejon (“Tribe”), is an Indian tribe which “resided in the State of California since time immemorial.” ¹ Plaintiffs allege that the Tribe “descends from signatories to the 1849 Treaty with the Utah and the ‘Utah tribe of Indians' that was recognized by the government of the United States in that treaty” and are descendants from the Indians for whom the 1853 Tejon/Sebastian Reservation was created. (Doc. 211, TAC ¶ 2.) The Tribe acknowledges that it is not on the list of federally recognized tribes by the Bureau of Indian Affairs, but allege that it is “a federally recognized tribe by virtue of, inter alia, descending from signatories to of the 1849 Treaty with the Utahs and the Utah Tribes of Indians.” (Doc. 211 TAC ¶ 2)

Plaintiff David Laughing Horse Robinson is the Chairman of the Kawaiisu Tribe of Tejon.

B. The Defendants

Defendant Tejon Mountain Village, LLC, Defendant Tejon Ranch Corporation and Defendant Tejon Ranchcorp (“Tejon Defendants”) ² are private entities which hold title or interest in 270,000 acres of land which the Tribe claims is a portion of the reservation and lands of the Tribe. (Doc. 211 TAC ¶¶ 6–9.) These entities intend to develop “Tejon Mountain Village” with 3,450 residences, additional commercial development, including a hotel and resort facilities, a golf course and other recreational and educational facilities. (Doc. 211, TAC ¶ 36.)

Defendant County of Kern (“Kern”) was the lead agency for the Tejon Mountain Village development project and ultimately approved the project after hearing and Environmental Impact Report. (Doc. 211, TAC ¶ 7.)

Defendant Ken Salazar is sued in his official capacity as Secretary of the United States Department of Interior (“DOI”).³

C. The Kawaiisu Tribe

Plaintiffs allege that the Kawaiisu is one of the ancient Great Basin Shoshone Paiute tribes whose pre-European territory extended from Utah to the Pacific Ocean. They have inhabited the Tejon area of California from time immemorial. At various times throughout history, the Kawaiisu People have been called any one or more the following names: Nochi, Cobaji, Cobajais, Covaji, Kahwissah, Kawiasuh, Kawishm, Kowasah, Kubakhye, Newooah, Noches Colteches, Tahichapahanna, Tahichp. (TAC ¶ 32.) Currently, five hundred individuals are alleged to be enrolled in the Tribe and are all related either by blood or adopted and all blood related are “descendants of the leaders of the Kawaiisu Tribe that signed the Treaty with the Utahs in 1849.” (TAC ¶ 15.) The citizens of the Kawaiisu are also descendants of the tribe of Native American encountered by Father Garces in or about 1776 and discussed in his diary and noted in his diseno maps as: Cobaji, Cobajaef, Cobajais, Covaji, Quabajai, Nochi, Nochis and Noches Colteches. In allegations found at paragraphs 32 to 63, plaintiffs outline the history, customs, community and beliefs of the Kawaiisu. The Tribe currently operates under an adopted Constitution which was adopted in 2002. (TAC ¶ 16.)

D. Treaty with the Utahs

Plaintiffs allege that before California was admitted to the Union, the Tribe's ancestors were signatories to the Treaty Between the United States of America and the Utah Indians, known as the Treaty with the Utah signed December 30, 1849, and ratified by the Senate on September 9, 1850. (TAC ¶ 89.) Plaintiff alleges that representatives of the Kawaiisu met to sign the Treaty with the Utah along with other tribe leaders. (TAC ¶ 101.) Plaintiffs allege on information and belief that around 1847, the tribe was headed by Acaguate Nochi, who signed the Treaty with the Utahs in 1849. (TAC 18.) Plaintiffs allege that in entering into the Treaty with the Utah, the tribal leaders were told that “they were not giving up their ancestral territories.” (TAC ¶ 101.) The group of chiefs who signed the Treaty did not represent a single “tribe” of Indians, but actually each represented a tribe or band of Indians, which together made up the Confederated Tribes of Utahs, which included the Kawaiisu. (TAC ¶ 105.) Plaintiff alleges that the “Utah tribe” was considered a “large umbrella that contained numerous groups of Indians, including the Paiutes,” which plaintiffs allege is the Kawaiisu. (TAC ¶ 108.) Plaintiffs allege that “the United States understood the designation of the territory of the ‘Utah tribe’ as stretching all the way from Utah to California and that all of the groups of Indians within the area had some sort of affiliation.” (TAC ¶ 109.)

E. Treaty D

Plaintiff alleges that on June 10, 1851, the headmen of the Tribe entered into a treaty, known as Treaty D, in which the Tribe agreed to cede large portions of its land in return for a defined reservation along with other goods and supplies for subsistence. (TAC ¶ 112.) The treaty was rejected by the Senate, but plaintiff alleges that the Tribe relied upon the treaty as if it were in force. (TAC ¶¶ 112–13.)

In 1852, Superintendent of Indian Affairs in California Beale was appointed. Beale established military posts and some provision for subsistence of the Indians. (TAC ¶¶ 119–123.) Plaintiffs allege that in 1853, Tejon was chosen as a site for a reservation. (TAC ¶ 135.) The majority of the allegations are based on information and belief as to the history and operations, citing some correspondence, regarding what Plaintiffs call the Tejon Reservation from 1852 through 1854. (TAC ¶¶ 136–168.) In 1857, the commissioner of Indian Affairs reported that five reservations including Sebastian or Tejon were formed. (TAC 198.) Between 1863 and 1866, Beale took possession of the approximately 270,000 acres that now comprises Tejon Ranch, and includes the land covered by the original Tejon/Sebastian Reservation. (TAC ¶ 217) Approximately 380 Indians were left at the Tejon Reservation, primarily citizens of the Kawaiisu Tribe.

Plaintiffs allege that the Act of 1864 established “An Act To Provide For The Better Organization Of Indian Affairs In California.” (TAC ¶ 219.) The Act of 1864 authorized the president to set aside four tracts for reservations and the rest to be sold at public auction. (TAC ¶ 219.) Plaintiff alleges that the Tejon Reservation was acknowledged by Congress and was not terminated. (TAC ¶ 221–¶ 222.) Plaintiffs allege that no public sale of the Tejon Reservation was held and the defendants did not acquire land by the 1864 Act. (TAC ¶ 224.) The Tejon Defendants are currently in possession of the approximately 270,000 acres that now comprises Tejon Ranch and that they claim to have acquired the rights to the land from Beale. Plaintiffs are informed and believe and thereon allege, to the extent that any rights descending from Beale has deprived the Tribe of lands which the Tribe historically occupied or lands reserved pursuant to 1849 Treaty with the Utah and the 1853 Tejon Reservation, such deprivation is unlawful. (TAC ¶ 228.) Plaintiffs allege that in 1994, the Department of the Interior confirmed that the Kawaiisu had not been terminated. (TAC ¶ 229.) Plaintiff alleges approximately 70 allotments were taken out by Kawaiisu, beginning in or about 1893 and continuing until in or about 1964. (TAC ¶ 232.)

Plaintiff alleges that Department of the Interior,...