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 defendant Ken Salazar, in his capacity as the Secretary, U.S. Department of the Interior (doc. 136), (2) motion by County of Kern (doc. 137), and (3) motion by Tejon Mountain Village, LLC and Tejon Ranch Corporation (doc. 139). Plaintiffs David Laughing Horse Robinson and Kawaiisu Tribe of Tejon filed oppositions, objections, and evidentiary support to their oppositions (see Doc. 155, 161, 163). Moving parties filed reply briefs and supporting evidence. (See Doc. 168, 170-173, 175.) The parties consented to the conduct of all proceedings before the assigned Magistrate Judge. The Court conducted a hearing on the motions on December 12, 2011. Plaintiffs appeared by telephone by counsel Evan Granowitz. Defendant Ken Salazar appeared by telephone by counsel Barbara Marvin and Barbara Coen. Defendants Tejon Mountain Village, LLC and Tejon Ranch Corporation appeared by telephone by counsel Jena MacLean and Benjamin Sharp. 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.
The following factual overview is taken from the Second Amended Complaint ("SAC"). The well pled factual allegations are taken as true.
Plaintiff, the Kawaiisu Tribe of the Tejon ("Tribe"), is an Indian tribe which "resided in the State of California since time immemorial." Plaintiff alleges that the Tribe "descends from signatories to of 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. 133, SAC ¶ 3.) The Tribe acknowledges that it is not on the list of federally recognized tribes by the Bureau of Indian Affairs. (Doc. 133 SAC ¶ 5.) The Tribe alleges it is a State recognized Indian tribe and its members are located in the County of Kern.
Plaintiff David Laughing Horse Robinson is the Chairman of the Kawaiisu Tribe of Tejon.
Defendant Tejon Mountain Village, LLC and Defendant Tejon Ranch Corporation 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 aboriginal lands of the Tribe. (Doc. 133 SAC ¶¶ 8-9.) These entities intent 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. 133, SAC ¶ 36.)
Defendant County of Kern ("Kern") was the lead agency for the land development project and ultimately approved the project after hearing and Environmental Impact Report. (Doc. 133, SAC ¶ 7.)
Defendant Ken Salazar is sued in his official capacity as Secretary of the United States Department of Interior.
Plaintiffs claim a right to occupy some or all of the 270,000 acres proposed for the defendants' development. Plaintiffs' sources of land claims include (1) aboriginal rights, which the right to occupy the land, and (2) treaty rights, which is the permissive right to occupy. Plaintiffs allege that the Tribe is entitled to its aboriginal tribal land. Plaintiffs claim that the Tribe descends from the Shoshone Paiute tribes which territory extended from Utah to the Pacific Ocean. (SAC ¶ 16.) "They have inhabited this areas from time immemorial." The Tribe is not currently on the list of federally recognized tribes maintained by the Bureau of Indian Affairs (SAC ¶ 5), but claims to be federally recognized by virtue of, inter alia, the 1849 Treaty with the Utah entered into with the United States and that was ratified by Congress (9 Stat. 984) and by virtue of Treaty D. (Doc. 133, SAC ¶¶ 3, 18-23.) Plaintiffs allege to be descendants of the "signatories to the Treaty with the Utah." (SAC 20.) The Tribe alleges that Treaty D was entered into with the United States in 1851, but which Congress did not ratify. (SAC ¶ 25). In Treaty D, the Tribe agreed to cede large portions of its land in exchange for a reservation, among other things. (SAC ¶ 25.) Plaintiffs allege that the Senate secretly neglected to ratify the treaty so that Indian land would be open for exploitation. (SAC ¶ 25.)
The Tribe also alleges that it has right to the land by virtue of its reservation. On March 3, 1853, Congress passed an Act authorizing the President to create "five military reservations for the protection of Indians" in the State of California. (SAC ¶ 26, citing 10 Stat 226.) In 1853, an Indian reservation was established by Congress for the Kawaiisu's benefit. A reservation was established at Tejon Pass for the Tejon Indians (SAC ¶ 27), and which was resurveyed as late as 1858, on which the Kawaiisu lived at one time on 75,000 acres. The establishment of the Tejon/Sebastian Reservation was re-surveyed to 19,928 acres in 1858. (SAC ¶ 27.)
Plaintiff alleges that in 1856 California Indian Superintendent Edward F. Beale created land patents for the 270,000 acres that now comprise Tejon Ranch, all of which was with the Tribe's aboriginal land. (SAC ¶ 28.) The Indians located on the Tejon/Sebastian Reservations were then forcibly moved to the Tule Reservation. Plaintiffs allege that defendants TRC and TMV derive their title from Superintendent Beale's patents. Plaintiffs allege that "[t]o the extent that any title descending from Beale's self appointed patents has deprived the Tribe of lands, which the Tribe historically occupied or lands reserved pursuant to the 1853 executive order," the title is unlawful. (SAC ¶ 28.) Plaintiffs allege that only an act of Congress can terminate a Reservation and no
Plaintiffs allege the 1853 Reservation was allotted to the Tribe. In 1880, Congress authorized the issuance of allotments from the 1853 Reservation and in 1893, 70 allotments were issued to predecessors of the Tribe. These allotments were inappropriately sold off. Nonetheless, plaintiff alleges that members of the Tribe have been present on the land from 1915 through 1945. (SAC ¶ 30.) The California Indian Agency took a roll in 1949 which found 3,384 acres of Indian trust land in Kern County and 62 Indians on the Census Roll. (SAC ¶ 32.)
Plaintiff allege alternatively their aboriginal title encompasses 270,000 acres or 49,000 acres which comprise the 1858 Survey of the Tejon/Sebastian reservation. (SAC ¶ 34-35.) Plaintiffs allege the following claims for relief:
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the pleadings set forth in the complaint. A Fed.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the factual allegations of the complaint in question, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404, reh'g denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969).
To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). A claim has facial plausibility, "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009).
A court is "free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Farm Credit Services v. American State Bank, 339 F.3d 764, 767 (8th Cir.2003) (citation omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
The defendants seek Fed.R.Civ. Proc. 12(b)(1) dismissal of plaintiffs' claims. F.R.Civ.P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). A plaintiff bears the burden to establish that subject matter jurisdiction is proper. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; see Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir.2001) ("plaintiff has burden of proving jurisdiction" to survive a F.R.Civ.P. 12(b)(1) motion to dismiss).
When addressing an attack on the existence of subject matter jurisdiction, a court "is not restricted to the face of the pleadings." McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir.1988). In such a case, a court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989); Roberts v. Corrothers, 812 F.2d 1173,1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D.Or.2003) (a court "may consider evidence outside the pleadings to resolve factual disputes apart from the pleadings").
"The plaintiff always bears the burden of establishing subject matter jurisdiction. In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise." Valdez v. U.S., 837 F.Supp. 1065, 1067 (E.D.Cal.1993). "[T]he burden of proof is on the plaintiff to support allegations of jurisdiction with competent proof when the allegations are challenged by the defendant." O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982).
Courts may take judicial notice of facts whose "existence is `capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'" W. Radio Servs.
The parties have asked the Court to take judicial notice of numerous documents. (See e.g., Doc. 138, Kern's Request for Judicial Notice; Doc. 141, Tejon's Request for Judicial Notice; Doc. 153, Plaintiff's request for Judicial Notice; Doc. 172, Tejon's Request for Judicial Notice, Doc. 192, Plaintiff's Request for Judicial Notice.) The Court has taken judicial notice of those documents appropriate for judicial notice and has taken judicial notice of the requested documents that have been referenced specifically in this Order.
Defendants TMV and TRC argue that plaintiffs' claims to the land should be dismissed because plaintiffs challenge to title is barred by the 1851 Act (Act of March 3, 1851, ch. 41, 9 Stat. 631 (1851)) and the Treaty of Guadalupe Hidalgo. TRC argues title to TRC's land is readily traceable from land grants made by the Mexican government to private parties prior to 1848 and confirmed by the United States after the land was ceded by Mexico to United States, as evidenced by a United States land patent. (Doc. 140, Moving papers p. 5.) Defendants argue that the Tribe has lost any aboriginal title for failing to comply with the requirements of the 1851 Act.
The common view of aboriginal title is that it is the right of occupancy held by tribes. See, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974); U.S. v. Dann, 873 F.2d 1189, 1195 (9th Cir.1989). Indians' aboriginal title derives from their presence on the land before the arrival of white settlers. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955). It is well settled that in all the States the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. Id. Fee title to the lands occupied by Indians when the colonists arrived became vested in the United States, but a right of occupancy in the Indian tribes is recognized.
The Treaty of Guadalupe Hidalgo, signed on February 2, 1848 and entered into force on May 30, 1848, signaled the formal end of the Mexican-American War. 9 Stat. 922 (1848); U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 641 (9th Cir. 1986). The United States and Mexico signed the treaty of Guadalupe Hidalgo, in which Mexico ceded land that includes parts of the present-day state of California to the United States. 9 Stat. 922 (1848). To settle land claims in the newly acquired territory, Congress passed the Act of March 3, 1851, ch. 41, 9 Stat. 631 (1851) ("1851 Act"). The 1851 Act created a board of commissioners to determine the validity of claims, and required every person "claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government" to present the claim within two years. 1851 Act, ch. 41, § 8; U.S. ex rel. Chunie v. Ringrose, 788 F.2d at 641. Any land not claimed within two years, and any land for which a claim was finally rejected, was deemed "part of the public domain of the United States." 1851 Act, ch. 41, § 13. The determination by the commission as to patents issued "shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons." 1851 Act, ch. 41, § 13. Courts in the United States have uniformly found that title to the land first passed to the United States through the Treaty. See, e.g., United States v. California, 436 U.S. 32, 34 n. 3, 98 S.Ct. 1662, 1663 n. 3, 56 L.Ed.2d 94 (1978) (stating that, under the Treaty, "all nongranted lands previously held by the Government of Mexico passed into the federal public domain").
In Barker v. Harvey, 181 U.S. 481, 21 S.Ct. 690, 45 L.Ed. 963 (1901), the Supreme Court held Mission Indians lost their land claims for failure to comply with the 1851 Act. The Court upheld the validity of land patents against challenges by Mission Indians claiming pre-existing aboriginal title. The Mission Indians had not presented their claims to the 1851 Commission. In Barker, individuals claiming title to the land also claimed by the Mission Indians, sued to quite title to land. The individuals claimed the land was ceded to the United States by the Treaty of Guadalupe Hidalgo, and under a patent confirming grants made by the Mexican government to the plaintiffs' ancestor in title. The defendants, Mission Indians, contended that plaintiffs' title was subject to their right of permanent occupancy which they claimed had been recognized
Similarly, in United States v. Title Ins. & Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924), the court held that the Tejon Mission Indians lost their rights to land for failure to present their claim to the commission pursuant to the 1851 Act. In 1843, two Mexicans were granted a land grant by the Mexican government of California for El Tejon conditioned upon the protection of the Indians who resided there. Under the laws of Spain and Mexico, the individuals were entitled to the undisturbed possession and use of the land they occupied. Title Ins., 288 F. 821, 822 (9th Cir.1923).
The Supreme Court in Title Ins., based its decision upon Barker v. Harvey. Any claim that the Tejon Mission Indians may have had was lost by failing to present it to the land commission and that the patent issued to defendants "passed the full title, unencumbered by any right" of those Mission Indians. Id. After summarizing and quoting from Barker, the Court held that the case was so much like Barker that the result must be the same. Id. at 485-86, 44 S.Ct. 621. Accordingly, the Court affirmed the judgment against the Tejon Indians. The Court said the United States would have been unable to grant the land patent it had by the Board of commissioners if the Indians had a claim of permanent occupancy. Title Ins., 265 U.S. at 484, 44 S.Ct. 621 ("is an essential difference between the power of the United States over lands to which it had had full title, and of which it has given to an Indian tribe a temporary occupancy, and that over lands which were subjected by the action of some prior government to a right of permanent occupancy, for in the latter case the right, which is one of private
In U.S. ex rel. Chunie v. Ringrose, the Court held that an Indian tribe lost all rights to the their aboriginal land for failing to present claims in the land confirmation proceeding pursuant to the Treaty of Guadalupe Hidalgo and the 1851 Act. The Indian Tribe claimed possession of islands off the Santa Barbara coast. These same islands had been granted to individuals by the Mexican government, who submitted claims to the board of commissioners pursuant to the 1851 Act to determine the validity of their claims. Land patents were granted by the Commission. A century later, the Indians disputed the land patents and claimed that, like the plaintiffs here, the 1851 Act did not apply to Indian claims based on aboriginal title. Like the plaintiffs here, the Indians in Ringrose claimed they were excepted from the land confirmation proceedings. The Indians claimed they possessed the land "from time immemorial" and that their aboriginal title has never been extinguished. Id. at 641. They argued that they had the right of occupancy notwithstanding the land patents. The Indians argued, as plaintiffs do here, that they were not required to submit a land claim under the 1851 Act. They argued that the 1851 Act only required persons claiming lands "by virtue of any right or title derived from the Spanish or Mexican government" to file claims, but because aboriginal title is not "derived from the Spanish or Mexican government," the Indians were not required to file a claim. Id. at 645.
The Ninth Circuit acknowledged that a claim of aboriginal title provided the Indians with a "right of occupancy." Id. at 642. After reviewing Supreme Court precedent which recognized the "extensive reach" of the 1851 Act, the Ninth Circuit disagreed with the Indians. The Court held that the Indians "claiming a right of occupancy based on aboriginal title, lost all rights in the land when they failed to present a claim to the commissioners." The Court stated that when the individuals' land claims derived from the Mexican government, were "confirmed and received federal patents to their lands, they were entitled to believe that adverse claims to their lands had been eliminated." Ringrose, 788 F.2d at 646. Thus, the Court held that aboriginal title had been extinguished by the failure of the Indians to present a claim for the disputed land with the board of commissioners pursuant to the 1851 Act. See also Super v. Work, 149, 3 F.2d 90 (1925), affirmed by Super v. Work, 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128 (1926) (roving bands of Indians, who were not Mission Indians, did not make claim under the act of 1851, and they must therefore be treated as having lost, through abandonment, any claim which they may have had.)
Thus, case law holds that aboriginal title is lost when land patents are validly issued to predecessors in title. Indian claims to occupancy is invalid as against such validly issued land patents by the board of commissioner pursuant to the 1851 Act. Here, land patents were issued for the land claimed by plaintiffs. Thus, the Tribe would lose any claim to aboriginal title for failing to submit a claim pursuant to the 1851 Act.
In their opposition, plaintiffs challenge the validity of the original land patents. "Plaintiffs do challenge their validity, as well as any other land grants or patents claimed by Tejon." (Doc. 155, Opposition p. 12 n. 7.) In their opposition, plaintiffs state that the Kawaiisu dispute that Tejon actually has good title to the property as the Kawaiisu allege that Tejon does not have any patents for the land where the graves or cultural items were
Plaintiffs, however, have failed to allege any factual basis for claiming the invalidity of the land patents. Plaintiffs allege that land patents for their claimed land were issued and that ex-superintendent Beale, TRC's predecessor, and others drew up patents under old Spanish land grants for the approximately 270,000 acres that now comprises Tejon Ranch. (Doc. 133 ¶ 28.) Plaintiffs allege that the land patents were "not approved by any action of either the United States or Congress and was therefore unlawful." (Doc. 133 ¶ 28.) The factual basis is not alleged for the statement that the land patents were invalid, were not approved and therefore unlawful. If plaintiff claims that the predecessor land patents are invalid, plaintiffs must allege a sufficient factual basis. Leave to amend will be granted. "[A] district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007). Twombly requires plaintiff to include sufficient facts supporting their claim that the land patents issued to the predecessor in title are invalid.
Plaintiffs distinguish the above cases and argue that the Barker court recognized that Section 8 of the 1851 Act only required persons claiming land in California by virtue of any right or title derived from the Spanish or Mexican government to submit a claim to the commission. (Doc. 155 Opposition p. 11.) Plaintiffs argue that they do not claim right or title derived from the Mexican government.
Plaintiffs rely on Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923). Cramer held that the 1851 Act had no application to the Indian claims before the Court. The Indians in Cramer were in actual possession of land. Three Indians had occupied 175 acres of public land for years prior to the United States grant of a patent to a railroad, which excepted land "found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of." 261 U.S. 219, 43 S.Ct. 342. The Indians argued that the congressional act in question, which permitted issuance of the land patent, was invalid because they individually occupied and used the land continuously since before the federal government removed the land from settlement in 1859. The Supreme Court upheld their title to the land actually enclosed and occupied by the individual Indians. Id. at 234-36, 43 S.Ct. 342. The United States Supreme Court reasoned that aboriginal title creates an individual aboriginal right of occupancy. The Court concluded that the Indians' right of occupancy was superior to the title vested through a later federal land patent. Id. at 225, 43 S.Ct. at 343. The Supreme Court grounded its opinion on the contemporary government policy which favored land settlement in general and Indian settlement in particular. The Court stated, "[i]n our opinion the possession of the property in question by these Indians was within the policy and with the implied consent of the Government." Id. at 230, 43 S.Ct. at 345.
In Cramer, the defendant railroad argued that the Indians were barred by the 1851 Act because the Indians failed to present their claims to the board of commissioner. The Court rejected that argument on the grounds that the 1851 Act had no application. Id. at 231, 43 S.Ct. 342. The Indians did not claim their rights derived from the Spanish or Mexican government.
Plaintiffs argue that the Kawaiisu's claim to Tejon Ranch likewise comes under Cramer, because like the Indians in Cramer, and unlike the Indians in Barker and Title Insurance, the Kawaiisu claim is not based on rights obtained from Spain or Mexico, and the Kawaiisu are not now nor have they ever been Mission Indians.
Plaintiffs' reliance on Cramer is not persuasive because Cramer is distinguishable. Cramer involved a claim to land which the individual Indians had enclosed and occupied for years before the federal grant to the railroad. The case did not involve tribal rights to vast areas not actually possessed. Further, the Court in Cramer found the 1851 Act inapplicable because the possession by the individual Indians occurred well after the Act. See Miller v. United States, 159 F.2d 997, 1005 (9th Cir.1947) (erroneous claim of original Indian title does not defeat right of individual occupancy). Here, plaintiffs allege that their title preceded the 1851 Act. Further, there are no allegations as to the actual occupancy and possession of the disputed land such as was in Cramer.
At oral argument, plaintiffs argued that they could allege facts to fall within the Cramer. Plaintiffs will be granted leave to allege that their occupancy was in continued occupancy of the land they claim.
Plaintiffs allege they have express land rights through the Treaty with the Utah. Plaintiffs claim that the 1851 Act cannot abrogate these express treaty rights. Plaintiffs argue that their claim to the Tejon Reservation was created by Congress when it ratified the Treaty with the Utah on September 9, 1850, which occurred after the United States ratified the Treaty of Guadalupe Hidalgo (March 10, 1848). (Doc. 155, Opposition p. 14.) The Reservation was created
Supreme Court jurisprudence teaches that Indian Treaties must be interpreted as the Indians would have understood them. A treaty between the United States and an Indian tribe "is essentially a contract between two sovereign nations." Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 675, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Treaties constitute the "supreme law of the land." Skokomish Indian Tribe v. U.S., 410 F.3d 506, 512 (9th Cir.2005) (en banc), cert. denied, 546 U.S. 1090, 126 S.Ct. 1025, 163 L.Ed.2d 854 (2006).
"The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to
In the Treaty with the Utah, the Utah Indians submitted to the jurisdiction, power, and authority of the United States: "The Utah Tribe of Indians do hereby acknowledge and declare they are lawfully and exclusively under the jurisdiction of the Government of said States." (9 Stat. 984, art. I.) The Court of Federal Claims in Uintah Ute Indians of Utah v. U.S., 28 Fed.Cl. 768, 786 (Fed.Cl.1993) provided a detailed opinion on the history of the Utah, aboriginal title and the Treaty with the Utah. "Utah Indians" refers to "any and all Indians resident in Utah, in or around Salt Lake City," during the relevant time period.
Treaty with the Utah, Dec. 30, 1849, art. VII, 9 Stat. 985.
As the Court recognized in Uintah Ute Indians of Utah, Article VII of the Treaty with the Utah does not recognize title because the boundaries of aboriginal lands were to be settled in the future. By its terms, the treaty does not designate, settle, adjust, define, or assign limits or boundaries to the Indians. It leaves such matters to the future. "The ratified treaty allowed the Indians permissive occupation and reserved a final settlement sometime in the future." Uintah Ute Indians, 28 Fed.Cl. at 789. The treaty with the Utah does not establish any reservation for Indians, including plaintiffs in the instant case. Consequently, the treaty cannot be said to recognize Indian title. Uintah Ute Indians of Utah, 28 Fed.Cl. at 786. The court held that treaty was made with the "Utah" Indians, which involved no cession of lands and did not set apart any reservation to the Indians. (9 Stats., 984.) The Treaty with the Utah did not provide a reservation
The Treaty, however, did not recognize Indian title. Thus, the treaty did not establish any title or reservation to land, and the treaty did not benefit tribes other than those in the Utah area.
Here, plaintiffs' reliance upon the Treaty with the Utah as a basis of land claims suffers from two pleading deficiencies.
First, plaintiffs have not alleged a factual basis for their association or descent from the tribes in the Treaty with the Utah. Plaintiff's sole allegation of descent is, "The Tribe descends from signatories to the 1849 Treaty with the Utah and the `Utah tribe of Indians.'" (Doc. 133 SAC 3.)
If the tribe is located in Tejon in 1849, it is not plausible under the current allegations that it was part of the Utah.
Further, plaintiffs have not adequately alleged that this treaty had anything to do with the tribes in the ceded land in California and that the treaty was intended to benefit the Kawaiisu. For Indian title to be recognized, "Congress, acting through a treaty or statute, ... must grant legal rights of permanent occupancy within a sufficiently defined territory.... There must be an intention to accord or recognize a legal interest in the land." U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 644 (9th Cir.1986). As currently alleged, it is not plausible that the Treaty with the Utah had anything to do with Indians in California. Plaintiffs must allege a firmer connection between their land possession and with the Indians in the Treaty with the Utah. Therefore, plaintiffs have not adequately alleged they are descendants of the Treaty of the Utahs or that the Treaty was entered into for their benefit, as a Tribe located in California.
Plaintiffs claim that Treaty D provides the Tribe its land claim.
Treaty D was a promise by the United States to set apart certain reservations for "various tribes of Indians in the State of California" in 1852, and to provide the goods, chattels, school houses, teachers, among other things. Treaty D, Art. 4; see Hein Online, 4 Indian Aff. L & Treaties, 1101 (1913-1927). Those promises were never carried out by the United States.
Defendants seek to further distinguish Treaty D, by noting that descendants of tribes in Treaty D were compensated for the failure to ratify the treaties. (See Doc. 170, Reply p. 8.) Treaty D was among 18 treaties attached as "Exhibit A" to the complaint in Indians of California by Webb v. United States, 98 Ct.Cl. 583 (1943), cert. denied, 319 U.S. 764, 63 S.Ct. 1324, 87 L.Ed. 1714, brought by the California Attorney General under the "Indians of California Act" of May 18, 1928, 25 U.S.C. § 651. The Indians of California Act authorized "the [A]ttorney [G]eneral of the State of California to bring suit in the Court of Claims on behalf of the Indians of California," who were defined as "all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State." Id.; see also Indians of California by Webb v. United States, 98 Ct.Cl. 583, 585 (Ct.Cl. 1942) ("[P]laintiffs, herein designated as The Indians of California, comprise all those Indians of the various tribes, bands and rancherias who were living in the State of California on June 1, 1852, and their descendants living in the state on May 18, 1928 — such definition and designation having been prescribed in the Jurisdictional Act [of 1928]."). The Act authorized the Attorney General to file on behalf of the Indians for compensation for land taken in the unratified treaties, such as Treaty D. Indians of California by Webb, 98 Ct.Cl. 583 (these Indians "did not qualify before the Commission created by the Act of March 3, 1851, 9 Stat. 631, entitled `An Act to ascertain and settle the private land claims in the State of California.' Therefore whatever lands they may have claimed became a part of the public domain of the United States.") The Attorney General filed suit on August 14, 1929 and in 1942, the Court of Claims held the Indians of California were entitled to recover damages from the United States. As explained in Round Valley Indian Tribes v. U.S., 97 Fed.Cl. 500, 504 (Fed.Cl. 2011), the government later stipulated to judgment on October 30, 1944 in the amount of $5,024,842.34. Round Valley Indian Tribes, 97 Fed.Cl. at 504.
The court will note that Treaty D, negotiated two years after the Treaty with the Utah, specifically referred to "tribes in the state of California." It did not reference the Treaty with the Utah or mention in any way the Treaty with the Utah or that the Indians in Treaty D were covered by the Treaty with the Utah. Thus, based on the current allegations, the Tribe's land claims based on the Treaty with the Utahs are not plausible.
Plaintiffs also argue that their land claims arise from the creation of the certain Reservations in California. Plaintiffs allege that the Tejon/Sebastian Reservation was created for the Tribe's benefit. Plaintiff argues the Reservation was authorized by Congress in 1853 and established by General Beale. (Doc. 155, Opposition p. 14.)
The term "Indian reservation" originally meant any land reserved from an Indian cession to the federal government regardless of the form of tenure. Cohen, Handbook of Federal Indian Law, § 3.04[2][c][ii]. In the 1850s, the Federal government began frequently to reserve
Congress authorized the President in 1853 "to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.... Provided, That such reservations shall not contain more than twenty-five thousand acres." Act of March 3, 1853, ch. 104, 10 Stat. 226, 238. The 1853 Act permitted a reservation of at most 25,000 acres.
The 1853 Act was subsequently amended to provide for two additional reservations. Act of March 3, 1855, ch. 204, 10 Stat. 686, 699; see Shermoen v. U.S., 982 F.2d 1312, 1315 n. 1 (9th Cir.1992), cert. denied, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993). The Act of March 3, 1855, 10 Stat. 699, appropriated funds for "collecting, removing, and subsisting the Indians of California ... on two additional military reservations, to be selected as heretofore ... Provided, That the President may enlarge the quantity of reservations heretofore selected, equal to those hereby provided for."
Plaintiffs have not pointed to any executive order establishing the Tejon/Sebastian reservation as a result of the 1853 or 1855 Acts.
Later in 1864, Congress passed "An Act to provide for the Better Organization of Indian Affairs in California." Act of April 8, 1864, ch. 48, 13 Stat. 39. This measure empowered the President to reserve four tracts of land:
The Act of April 8, 1864 designated California as one Indian superintendency. Congress authorized the President to designate the reservations. The 1864 Act further provided that the lands not retained were to be surveyed and offered for sale: "[T]he several Indian reservations in California which shall not be retained ... under... this act, shall ... be surveyed into lots or parcels ... and ... be offered for sale at public outcry, and thence afterward shall be held subject to sale at private entry." Id., at 40; see generally Mattz v. Arnett, 412 U.S. 481, 490, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). The Supreme Court noted in Mattz that, "At the time of the passage of the 1864 Act there were, apparently,
Plaintiff alleges that in 1853, the Tejon/Sebastian Reservation was created. Plaintiff alleges the Reservation was resurveyed in 1858 at 49,927 acres.
As discussed above, the Act of 1864 required that the President establish the California Reservations. To the extent that there is no Executive Order creating the "Tejon/Sebastian Reservation", the absence of Executive Order nullifies the existence of such a reservation. The Act of 1864 superceded any prior act establishing a reservation and gave the authority to the President to create reservation.
Contrary to plaintiffs' arguments in opposition to this motion, no where in the Second Amended Complaint do they allege that the Tejon/Sebastian Reservation is in fact a current Reservation, as opposed to a historical, potential Reservation which was not established and now no longer exists. Relevant allegations are:
Indeed, the SAC does not allege that the Tejon/Sebastian Reservation is an active reservation upon which the plaintiffs reside.
Plaintiffs argue that the SAC alleges that Congress has never disestablished the Reservation. (Doc. 155 Opposition p. 22.) Plaintiffs, however, allege that the Indians were forcibly removed from the Tejon/Sebastian to the Tule River Reservation and all with the knowledge of Congress. (SAC ¶ 28.) The Tule River Reservation was a Reservation expressly established by Executive Order. Documents relied upon by plaintiffs state that the reservation was "abandoned." (See SAC ¶ 28; 56th Congress 1st Sess. House Doc. No. 736 at 788, 789.) Accordingly, the Tejon/Sebastian Reservation was not an established reservation and therefore cannot provide land rights to plaintiffs.
At oral argument on this motion related to the Reservation issue, plaintiffs argued
A de facto reservation is one where the federal government has treated the Indians as on a reservation. The actions of the federal government in its treatment of Indian land can create a de facto reservation, even though the reservation was not created by a specific treaty, statute or executive order. U.S. v. Azure, 801 F.2d 336, 338 (8th Cir.1986) (tribal trust land could be considered de facto reservation or dependent Indian community). A key factor in finding a de facto reservation is the actions of the BIA in expending funds and providing social services. See e.g., Sac & Fox Tribe v. Licklider, 576 F.2d 145, 149-50 (8th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). For instance, in Mattz v. Arnett, 412 U.S. at 490-491, 93 S.Ct. 2245, the Court said that the Klamath River Reservation, "although not reestablished by Executive Order or specific congressional action, continued, certainly, in de facto existence." The Court noted that the BIA regarded the Klamath River Reservation as "in a state of reservation," no attempts were made to sell the reservation, the military protected against trespass, and allotments were proposed. See HRI, Inc. v. E.P.A., 198 F.3d 1224, 1231 (10th Cir.2000) (declining to find a de facto reservation in the face of evidence of Congressional intent to disestablish that area); See U.S. v. Roberts, 185 F.3d 1125, 1131 (10th Cir.1999) (lands owned by the federal government in trust for Indian tribes are Indian Country pursuant to statute for crimes on Indian country); State of Minnesota v. Hitchcock, 185 U.S. 373, 388, 22 S.Ct. 650, 46 L.Ed. 954 (1902) (government enacted legislation which assumed trustee relationship for Indians).
To the extent that plaintiffs may possess facts that could establish a de facto reservation, the Court will allow amendment. However, plaintiffs are cautioned that they must allege factual content sufficient to raise a plausible claim that the land they allege was the Reservation, was treated by the federal government as a reservation. Plaintiffs are further cautioned as to the factual pleading required by Iqbal and Twombly, and the Court will not sustain conclusory allegations. Finally, the plaintiffs are cautioned against making allegations inconsistent with Congressional enactments or Executive order.
Plaintiffs allege that TMV and TRC defendants have possessed plaintiffs' land unlawfully in violation of the Indian Non-Intercourse Act, 25 U.S.C. § 177 ("NIA"). Defendants argue that plaintiffs cannot bring a claim under the NIA because plaintiffs are not a "tribe" for purposes of the NIA, or in the alternative, tribal status should be determined by the Department of the Interior.
The Non-intercourse Act, 25 U.S.C. § 177, states, in relevant part, that, "No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution." 25 U.S.C. § 177. The purpose of NIA has been declared to be "to prevent unfair, improvident or improper disposition by Indians of land owned or possessed by them to other parties...." Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584 (1960), reh'g denied, 362 U.S. 956, 80 S.Ct. 858, 4 L.Ed.2d 873 (1960).
To establish a prima facie case for violation of the Indian Nonintercourse Act, an Indian tribe is required to allege that (1) it is an Indian tribe, (2) the land in
The NIA does not provide a definition of the term "tribe." The NIA does not state or include language that a tribe must be a "recognized" tribe.
In Montoya v. United States, 180 U.S. 261, 36 Ct.Cl. 577, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901), the Supreme Court defined the term "tribe" for a statute with a similar purpose as the NIA. At issue in Montoya was a statute which protected citizens from property destruction by "any band, tribe, or nation." Like the NIA, the statute at issue did not define the term "tribe." The Court defined a tribe as follows:
Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358; see Navajo Tribal Util. Auth. v. Ariz. Dept. of Revenue, 608 F.2d 1228, 1231 (9th Cir. 1979) (a tribe does not include private Indian-owned entities or semi autonomous trial entities); See Kahawaiolaa v. Norton, 386 F.3d 1271, 1272-74 (9th Cir.2004) (recognizing that members of a tribe are of a same or similar race). Other cases defer to the Department of the Interior's acknowledgment regulations and defer to the acknowledgment process. Price v. Hawaii, 764 F.2d 623, 627 (9th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986). In United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 70 L.Ed. 1023 (1926), the Supreme Court interpreted "tribe" for purposes of the Non-Intercourse Act as being "a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular, though sometimes ill-defined, territory," (quoting Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901)).
Here, the SAC does not contain allegations that the Tribe is "the same race united in a community under a single government." Importantly, "[t]he Montoya/Candelaria definition and the BIA criteria both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with a political structure." Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp., 418 F.Supp. 798, 807 n. 8 (D.R.I.1976). The SAC fails to contain non-conclusory facts explaining how the Tribe itself is the authentic lineal descendants entitled to assert NIA claims pertaining to the land. Nonspecific allegation that they are a "tribe" — where the allegations do not meet the requirements of Montoya/Candelaria, and in light of the evidence that plaintiffs have submitted of a competing group. The facts are insufficient to allege that these plaintiffs are the present day embodiment of an ancient tribe. The SAC is devoid of any specific allegations that would permit the Court to draw a plausible inference that the plaintiffs are who they say they are. At a minimum, the complaint
An additional issue the parties dispute is whether plaintiffs must go through the BIA acknowledgment process to be considered a "tribe." TMV, TRC and Ken Salazar argue that plaintiffs cannot bring suit in this action because the Court should defer to the BIA acknowledgment process.
The parties do not dispute that, generally, acknowledgment of tribal existence by the Department of the Interior is a prerequisite to the protection, services, and benefits from the federal government that are available to Indian tribes. 25 C.F.R. § 83.2. In 1975, Congress established the American Indian Policy Review Commission to survey the current status of Native Americans. The Commission highlighted a number of inconsistencies in the Department of Interior tribal recognition process and special problems that existed with non-recognized tribes. Congress delegated to the Department of the Interior the authority to adopt regulations to administer Indian affairs and to clarify departmental authority by regulation under 25 U.S.C. §§ 2, 9; see James v. United States Dep't of Health and Human Services, 824 F.2d 1132, 1137-38 (D.C.Cir.1987). As a result, in 1978, the Department of Interior exercised its delegated authority and promulgated regulations establishing a uniform procedure for "acknowledging" American Indian Tribes. 25 C.F.R. § 83.1 et seq. The Department of Interior adopted comprehensive regulations that govern its decisions concerning tribal status as set out in 25 C.F.R. Part 83 (the "acknowledgment regulations"). This part established procedures by which the DOI acknowledges that certain Indian groups exist as "tribes." Id. § 83.2; See generally, Kahawaiolaa v. Norton, 386 F.3d 1271, 1273-74 (9th Cir.2004). Recognition "is intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present." 25 C.F.R. § 83.3(a). The Department of Interior, the federal Bureau of Indian Affairs ("BIA"), applies its expertise to this determination and has established the Branch of Acknowledgment and Research ("BAR") which staffs historians and anthropologists to determine whether groups seeking recognition "actually constitute Indian tribes and presumably to determine which tribes have previously obtained federal recognition."
Plaintiffs argue that the Court should not defer to the BIA the decision regarding
In Golden Hill Paugussett Tribe, plaintiff Golden Hill Paugussett Tribe of Indians sued under the Indian Nonintercourse Act, and the Proclamation of 1763 by King George III of Great Britain, against holders of record title to land in Bridgeport, Connecticut. Defendants contended that the Tribe was not a federally recognized tribe and therefore lacked standing to sue under the NIA absent federal acknowledgment recognition. The Tribe had applied to the BIA for federal recognition and their application was then pending.
The Court held that it should defer to the primary jurisdiction of the BIA for the administrative process of acknowledging Indian tribes is appropriate.
Plaintiff relies upon the following language stated by the court in Golden Hill Paugussett Tribe: "We need not decide whether deference would be appropriate if no recognition application were pending, but deferral is fully warranted here where the plaintiff has already invoked the BIA's authority." 39 F.3d at 60 (emphasis added). Plaintiff argues that since no application
Here, the evidence of party admissions and judicial noticeable documents show that plaintiffs had an application pending before the BIA since 1979. (Doc. 153, p. 33.) That application was withdrawn in 2006. Plaintiffs acknowledge that no application is now pending. The Tribe's voluntary withdrawal of the application cannot serve as a basis for avoiding the BIA recognition.
Deference to the BIA determination is preferred course of action. While courts may make the determination whether an unrecognized group is "an Indian Tribe," they are not required to so. Instead, under the doctrine of primary jurisdiction, courts may defer resolution of the issue to the BIA. See e.g., New Jersey Sand Hill Band of Lenape & Cherokee Indians v. Corzine, 2010 WL 2674565 (D.N.J.2010) (court dismissed claims under the NIA based on deference to the BIA for a "hotly disputed" tribal authenticity, and where plaintiff had not yet begun the federal recognition process). BGA, LLC v. Ulster County, N.Y., 2010 WL 3338958 (N.D.N.Y.2010) (given the complexity of the tribal inquiry and the potential for inconsistent and under-informed rulings, deference to the BIA is generally preferred); see also U.S. v. 43.47 Acres of Land, 45 F.Supp.2d 187 (D.Conn.1999) (determination of band's tribal status would be referred to BIA).
Here, as discussed below, the complexity of the Tribal status, the Tribe's claims and the Tribe's composition would warrant deferral to the BIA. Nonetheless, in light of the Tribe's request for leave to amend, as to the Declaratory Relief Claim, which goes hand-in-hand with the acknowledgment process and claims of treaty rights, the Court will not rule on deferment until after the amendment.
Plaintiffs also rely upon two cases from the Eastern District of New York for the proposition that courts may decline to defer to the BIA and may decide the "tribal" issue. New York v. Shinnecock Indian Nation, 400 F.Supp.2d 486, 487 (E.D.N.Y. 2005) and Gristede's Foods, Inc. v. Unkechauge Nation, 660 F.Supp.2d 442, 466-477 (E.D.N.Y.2009). In New York v. Shinnecock Indian Nation, New York sued to enjoin the construction and operation of a gaming casino by the Shinnecock. The Shinnecock invoked the defense of sovereign immunity against the suit, which implicated its tribal status. The court held that despite the lack of federal tribal recognition, the Shinnecock Nation was an Indian Tribe. The Tribe had presented evidence that the Legislature of New York recognized the Tribe in 1792, the Tribe
The other New York case cited by plaintiffs is Gristede's Foods, Inc. v. Unkechuage Nation, 660 F.Supp.2d 442 (E.D.N.Y.2009). Like in Shinnecock, the defendant Indian tribe was sued on state and federal claims involving cigarette sales. The defendant Indian tribe raised the defense of sovereign immunity, which like in defense in Shinnecock, implicated the "tribal status." It was undisputed that the tribe was not a federally recognized tribe, but the tribe argued that it met the common law definition of a tribe under Montoya/Candelaria and therefore could assert the defense of sovereign immunity. The Court conducted a five day evidentiary hearing on whether the tribe met the common law definition of a "tribe" as defined in Montoya/Candelaria. Based upon the extensive evidentiary hearing, the court found that the tribe was a common law tribe and therefore enjoyed sovereign immunity. The argument was then made that the Court lacked subject matter jurisdiction to resolve the tribal status. The court held that it had jurisdiction to determine tribal status for the purpose of tribal immunity:
Thus, the court determined that for purposes of sovereign immunity, the court had jurisdiction to determine whether a tribe meets the federal common law definition of "tribe" as defined by Montoya/Candelaria. Suits against Indian tribes are barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. See Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998)
Plaintiffs here note, like the language in Shinnecock, that the court has jurisdiction to determine tribal status when "the tribe has no pending federal recognition application with the BIA." Plaintiff Tribe here does not have a pending recognition application with the BIA.
Plaintiffs' claims, however, are fundamentally different from those of the Shinnecock and in Gristede's Foods. Plaintiffs allege land rights based upon aboriginal title and based upon treaties from long ago. They claim they are descendants from those to whom promises were made, Reservations created and treaty and statutory rights infringed. They claim land rights under a complex array of historical federal statutes and federal treatises. The Tribes genealogy appears to be disperse, residing in vast locations from Utah to California. Deciding whether an Indian group is a tribe involves decisions of anthropological, political, geographical, and cultural considerations. These are not claims based upon state law for which the state
Plaintiff cites two cases for the proposition that the Court should not defer the issue of current and historical tribal existence when treaty rights are at issue in the case. United States v. Washington, 520 F.2d 676 (9th Cir.1975) ("Washington I"), cert. denied, 424 U.S. 978, 96 S.Ct. 1487, 47 L.Ed.2d 750 (1976), and Greene v. Babbitt, 64 F.3d 1266, 1270-1271 (9th Cir.1995).
In United States v. Washington, the government brought action against the State of Washington on behalf of numerous tribes to protect their fishing rights under treaties. Two of the tribes were descendants of treaty signatories, but were not tribes recognized as organized tribes by the federal government. United States v. Washington, 520 F.2d at 692-93. The State of Washington argued that the non-recognized tribes were not entitled to preserve the treaty rights. The court held otherwise:
Rights under a treaty vest with the tribe at the time of the signing of the treaty, Washington, 520 F.2d at 692, but Indians later asserting treaty rights must establish that their group has preserved its tribal status: "[t]reaty-tribe status is established when a group of citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized tribal structure." United States v. Washington, 641 F.2d 1368, 1372-73 (9th Cir.1981) ("Washington II"), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). The group seeking to exercise treaty rights must show that it has maintained an "organized tribal structure," which in turn can be shown by establishing that "some defining characteristic of the original tribe persists in an evolving tribal community." Id. at 1372-73 (finding no tribal status for lack of "continuous separate, distinct and cohesive Indian cultural or political communities").
In Greene v. Babbitt, the court held that vested rights could not be lost for failure of nonrecognition of the tribe by the federal government and the failure of the Secretary of the Interior to approve a tribe's enrollment. Greene, 64 F.3d at 1270 ("Nonrecognition of the tribe by the federal government and the failure of the Secretary of the Interior to approve a tribe's enrollment may result in loss of statutory benefits, but can have no impact on vested treaty rights.") In Greene, an Indian Tribe sought recognition in 1972 before the DOI promulgated the acknowledgment regulations. After the regulations were adopted in 1978, the DOI undertook its research and investigation and denied recognition in 1982. Id. at 1270. The tribe later filed action in district court to be recognized. The court held that treaty rights are not affected by the recognition or nonrecognition by the federal government. The tribe need only be descendants of the parties to the treaty. The court said that, "Whether a group of citizens of Indian ancestry is descended from a treaty signatory and has maintained an organized
The Court agrees that the Kawaiisu do not have to be federally recognized to exercise any treaty rights, assuming treaty rights in fact exist. However, as discussed above, plaintiffs have not adequately alleged they are descendants of those for whom the treaty was entered, the Tribe has maintained an organized tribal community or that the treaty was designed to benefit the Tribe located in California.
Individuals do not have standing to bring a claim under the NIA. The NIA protects only the rights of an Indian tribe. See San Xavier Dev. Auth. v. Charles, 237 F.3d 1149, 1152 (9th Cir.2001) ("Only Indian tribes may bring § 177 actions, and `individual Indians do not even have standing to contest a transfer of tribal lands on the ground that the transfer violated that statute.'") In San Xavier, a nonprofit develop corporation chartered by an Indian Nation, and which was the lessee of allotted Indian land, sued to terminate a sublease. The court held that the nonprofit corporation was not an Indian Tribe and did not have standing to contest the transfer of tribal land.
To the extent that David Laughing Horse Robinson alleges claims under the NIA, these claims are dismissed without leave to amend.
Plaintiffs argue that the Kawaiisu have sought out the help from the BIA to protect their lands and those efforts have all failed. (Doc. 161 Reply p. 17.) Plaintiffs argue that Salazar has terminated its efforts to support recognition "by omitting Kawaiisu from the official list of Acknowledged tribes and refusing to provide assistance to the tribe." (Doc. 161 Reply p. 17.) Plaintiff alleges pursuing acknowledgment would be futile. Plaintiffs' allegations regarding futility are as follows:
On April 1, 2011, pursuant to Plaintiffs' request (see Doc. 94), the Court dismissed Plaintiffs' First Amended Complaint as to Defendant Salazar without prejudice specifically to allow Plaintiffs to exhaust their administrative remedies. (Doc. 175 p. 16-17.) The factual allegations of futility are insufficient to be plausibly suggestive of a claim entitling the plaintiffs to relief.
In light of the Tribe's request for leave to amend, as to the Declaratory Relief Claim, which goes hand-in-hand with the acknowledgment process and claims of treaty rights, the Court will not rule on deferment until after the amendment.
In their second claim for relief, plaintiffs allege that Defendants TRC and TMV damaged or destroyed, seven or more Native American cemeteries, graves,
Plaintiffs claim violation of the Native American Graves Protection and Repatriation Act.
The Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. § 3001 et seq., provides for repatriation of "Native American human remains and associated funerary objects," "sacred objects," and "objects of cultural patrimony" found on federal or tribal lands after November 16, 1990. 25 U.S.C. § 3002(a)(1). "Tribal lands" means all lands within the exterior boundaries of any Indian reservation or all dependent Indian communities. 25 U.S.C. § 3001(15)(A).
Defendants TRC and TMV argue that plaintiffs cannot allege an NAGPRA claim. Plaintiffs cannot allege the lands are tribal lands because the lands are private lands. "Plaintiffs have not alleged a valid aboriginal land claim and cannot, whether they are barred by the 1851 Act or by the doctrine of primary jurisdiction. Because the land at issue is neither tribal nor federal land, their claim under NAGPRA fails. NAGPRA has no application to TRC's land and the Defendants have no obligations." (Doc. 140, Moving paper p. 14.)
Plaintiffs argue that the lands are currently "tribal lands" within the meaning of NAGPRA. The statutory definition of "tribal lands" includes a reservation. Plaintiffs argue that TRC and TMV excavated graves within the Tejon/Sebastian Indian Reservation in violation of NAGPRA. (Doc. 155, Opposition p. 21 citing SAC ¶ 62-80.) The SAC alleges that the land on which the graves and cultural items were excavated occurred on land that is currently an Indian reservation (the Tejon/Sebastian Reservation), and at all times since its establishment in 1853 has been an Indian reservation. (Doc. 155 Opposition p. 21.)
Defendants question whether an individual who is not a member of a recognized Indian tribe has standing to bring suit under NAGPRA. NAGPRA, 25 U.S.C. § 3013, provides district courts with jurisdiction over "any action brought by any person alleging a violation of this chapter...."
This claims suffers from the same factual deficiency as plaintiffs' other land claims. As discussed above, plaintiffs have not adequately alleged its claims to the Reservation or treaty rights. "The NAGPRA establishes rights of tribes and lineal descendants to obtain repatriation of human remains and cultural items from federal agencies and museums, and protects human remains and cultural items found in federal public lands and tribal lands." Castro Romero v. Becken, 256 F.3d 349,
Plaintiffs' third claim for relief is for violation of Civil Rights, 42 U.S.C. § 1983 against the County of Kern. Kern moves to dismiss this claim on the ground that the tribe is not a "person" for purposes of Section 1983 liability. Kern argues that "plaintiffs cannot plausibly assert a civil rights cause of action that is premised on the alleged `deprivation' of property that admittedly is not the property of the unrecognized "Kawaiisu Tribe of Tejon."" (Doc. 137, Moving papers p. 6.)
Plaintiffs argue that their claims is not based on sovereign right, but upon distinct rights: (1) to occupy the Reservation and treaty lands, (2) to utilize the natural resources from the lands, and (3) their statutory rights under NAGPRA with regarding graves and remains of their ancestors and related cultural items. (Doc. 163, Opposition p. 4.) Plaintiffs argue that these rights are not sovereign rights in this case's context because they seek to protect their "private right" to live on the land, which is a right Section 1983 was designed to protect from government encroachment. The Tribe argues that for its claim under NAGPRA, the Tribe is a person which can protect NAGPRA rights.
The relevant portion of 42 U.S.C. § 1983 reads: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Indian tribes are not "persons" capable of bringing claims under 42 U.S.C. § 1983 for claims as a sovereign. See Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 711, 123 S.Ct. 1887, 155 L.Ed.2d 933 (2003) (holding that the tribe could not sue under § 1983 to vindicate the sovereign right against search and seizure); Skokomish Indian Tribe, 410 F.3d at 515-516 (finding that the tribe was not a "person" under § 1983 when attempting to assert communal rights granted under a treaty between the tribe and the federal government). In Skokomish, a federally recognized tribe challenged damage to tribal lands and fisheries caused by flooding from dams, reservoirs and other water related project. The Tribe sued, among others, a city and public utility for violation of a treaty and Section 1983. The Skokomish court, citing Inyo County, held the that tribe was not a "person" qualified to sue under section 1983. The court noted that the "tribe is attempting to assert communal fishing rights reserved to it, as a sovereign, by a treaty it entered into with the United States." As a sovereign, the Tribe was asserting its treaty based rights with the federal government. Thus, Skokomish squarely held that Indian tribes may not sue as "persons" under section 1983 for violation of treaty-based rights.
Even if Kawaiisu were making claims as a sovereign, the § 1983 claim would be dismissed.
To bring a § 1983 claim against a local government entity, a plaintiff must plead that a municipality's policy or custom caused a violation of the plaintiff's constitutional rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may only be sued under section 1983 if "the action that is alleged to be unconstitutional implement[ed] or execute[d] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell, 436 U.S. at 690, 98 S.Ct. 2018. To maintain a section 1983 claim against a local government, a plaintiff must establish the requisite culpability (a "policy or custom" attributable to municipal policymakers) and the requisite causation (the policy or custom as the "moving force" behind the constitutional deprivation). Monell, 436 U.S. at 691-694, 98 S.Ct. 2018; Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir.2002).
Plaintiffs have not alleged in the SAC any custom, policy or practice of Kern which allegedly violated their rights. Plaintiffs do not argue in the opposition that they are able to allege a custom, policy or practice. Accordingly, plaintiff's complaint is factually devoid of this necessary element for the cause of action.
Plaintiff's fourth claim for relief alleges that Kern approved the development project without complying with California Environmental Quality Act ("CEQA"). Plaintiffs allege they have significant interest in the environmental effects of the project and to the land on which the project is developed. (SAC ¶¶ 91-92.) Plaintiffs allege that the project has "significant effect" requiring the preparation of an Environmental Impact Report ("EIR"). Plaintiffs allege the previously prepared EIR is deficient in many respects, and that Kern's approval of the EIR was arbitrary and capricious. (SAC ¶¶ 101, 113.)
Kern argues that the County's compliance with CEQA has been fully litigated and decided in a state court mandamus proceeding. (Doc. 1138, Judicial Notice Exh A.)
In their opposition, plaintiffs argue that their federal land claims are intertwined with their CEQA claims. They argue that if the CEQA claims were tried in a state forum while the land claims and/or the NAGPRA claim were tried in the federal forum, inconsistent results would occur. (Doc. 163, Opposition p. 6.) Whether or not Kern adequately evaluated the environmental effects of TRC and TMV Defendants' proposed development, especially the effect on cultural resources, such as the remains and other cultural items of Plaintiffs' ancestors, is dependent on the Court's resolution of the land claims and the NAGPRA claims. Plaintiffs argue that "there is nothing overly complex about a CEQA claim" as they parallel the comparable federal act, NEPA.
Pursuant to the Rooker-Feldman doctrine Federal courts lack jurisdiction to review or modify state court judgments. See Rooker v. Fidelity Trust Company, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The Rooker-Feldman doctrine is based on 28 U.S.C. § 1257 which grants the United States Supreme Court jurisdiction to review decisions of the highest state courts for compliance with the federal Constitution. See Rooker, 263 U.S. 413, 44 S.Ct. 149; Feldman, 460 U.S. at 482, 103 S.Ct. 1303. The doctrine provides that "lower federal courts do not have jurisdiction to review a case litigated and decided in state court; only the United States Supreme Court has jurisdiction to correct state court judgments." Gottfried v. Medical Planning Services, 142 F.3d 326, 330 (6th Cir.), cert. denied, 525 U.S. 1041, 119 S.Ct. 592, 142 L.Ed.2d 534 (1998). The Rooker-Feldman doctrine recognizes that federal district courts generally lack subject matter jurisdiction to review state court judgments. See also Branson v. Nott, 62 F.3d 287, 291 (9th Cir.1995) ("As courts of original jurisdiction, federal district courts have no authority to review the final determinations of a state court in judicial proceedings."),
Recently, the Supreme Court has noted the narrowness of the Rooker-Feldman doctrine. Lance v. Dennis, 546 U.S. 459, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). As explained by the Court in Lance, the doctrine is "confined to cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment. Id. at 466, 126 S.Ct. 1198. The Court left open the issue of whether there are any circumstances in which Rooker-Feldman may be applied against a party not named in an earlier state proceeding. Id. at 466 n. 2, 126 S.Ct. 1198.
In ruling on defendants' prior motions to dismiss the CEQA claim, the Court ruled that "Plaintiffs' CEQA claim does not substantially overlap with the 1983/equal protection claim against NAHC." (Doc. 123, Order February 7, 2011 p. 21, 2011 WL 489561.) Here, the only other claims against Kern is the section 1983 claim which will be dismissed. Again, as before, the allegations in the SAC do not overlap with any claim against Kern and the CEQA claims.
A federal court lacks subject matter jurisdiction to review claims "inextricably intertwined" with final state court decisions, even if such "inextricably intertwined" claims were not raised in state court. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-487 and n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9th Cir.1998); See Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir.2003) ("Stated plainly, Rooker-Feldman bars any suit that seeks to disrupt or `undo' a prior state-court judgment, of whether the state-court proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate her claims.").
The Court finds that, in these circumstances, preclusion is warrant. As long as the complaint sets forth a claim "arising under" federal law, the district court may (discretionary) adjudicate state law claims that are related transactionally to the federal claim. This includes claims both against original parties and any properly-joined new parties. See 28 U.S.C. § 1367(a). A district court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over a state law claim if "the district court has dismissed all claims over which it has original jurisdiction.").
Here, the CEQA claim is not related transactionally to the Indians' claim to ownership or possession of the property. This case is about title and/or right of possession. It does not decide environmental impacts of a proposed development project and assessing the impacts of such a project. It does not involve the project's environmental impacts: preservation of
The declaratory relief claim is subject to evaluation under the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201. The DJA and its 28 U.S.C. § 2201(a) provides in pertinent part:
The DJA's operation "is procedural only." Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937). A DJA action requires a district court to "inquire whether there is a case of actual controversy within its jurisdiction." American States Ins. Co. v. Kearns, 15 F.3d 142, 143-144 (9th Cir.1994). The Administrative Procedure Act, like the Declaratory Judgment Act, merely provides remedies otherwise within the jurisdiction of the court. Commonwealth v. Connor, 248 F.Supp. 656 (D.C.Mass.1966), aff'd, 366 F.2d 778 (1st Cir.1966). It is also well settled that, although the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, enlarges the range of available remedies, it is not an independent source of district court jurisdiction and presupposes the existence of some judicially remedial right. Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960).
It is a fundamental principle that the United States and its agencies may not be sued in federal court unless Congress has waived sovereign immunity. If Congress has not waived the federal government's immunity for a particular claim, courts lack jurisdiction over that claim and must dismiss it. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). "A mere assertion that jurisdictional statutes apply does not suffice to confer jurisdiction when, as in this case, the government did not waive its immunity." Hughes v. United States, 953 F.2d 531, 539 n. 5 (9th Cir.1992). Sections 1331, 1353, 1361, and 1362 of Title 28 do not contain waivers of sovereign immunity. See 28 U.S.C. § 1353. Sections 28 U.S.C. §§ 1331 and 1337 are statutes of general jurisdiction, but they do not waive the United States' sovereign immunity. Whether a court may grant declaratory relief against any type of defendant in a case otherwise within the court's jurisdiction does not imply, let alone expressly state, that the United States has waived its immunity for all declaratory relief claims. Indeed, § 2201 provides that the statute is "procedural only" and does not confer jurisdiction. Cal. Shock Trauma Air Rescue v. State Compensation Ins. Fund, 636 F.3d 538, 543 (9th Cir.2011).
Even if § 2201 did grant jurisdiction, it would not necessarily waive sovereign immunity.
Plaintiff contends that the immunity of the United States has been waived in the Administrative Procedures Act ("APA"). Plaintiffs contend that the second sentence of section 702 is a waiver of immunity for injunctive or declaratory relief. (Doc. 161, Opposition p. 5-6.) Plaintiffs argue that this sentence is in express waiver of sovereign immunity. 5 U.S.C. § 702.
Right to review of agency action:
There is some authority for plaintiffs' position. In The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-26 (9th Cir.1989), the court held that constitutional challenges to unlawful agency action fell within the section 702 waiver of immunity. The plaintiffs in that case alleged that their First and Fourth Amendment rights were violated when employees of various federal agencies surreptitiously recorded church services. The court rejected the government's argument that section 702 waives immunity only for challenges involving "agency action" as that term is used in section 704. The court found that sovereign immunity was waived for the constitutional challenges raised in the case. The court pointed to the legislative history, which refers to waiving sovereign immunity in all equitable actions against the government, and it noted that the second sentence in section 702 is not, by its terms, limited to cases involving "agency action." Accordingly, the court concluded that the waiver of sovereign immunity in section 702 is not limited to claims challenging conduct that constitutes "agency action." Id. at 525.
In Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir.2011), the Ninth Circuit reaffirmed that the waiver of sovereign immunity in section 702 is not limited to actions in which the APA creates the right to judicial review. Recently, however, the Ninth Circuit granted rehearing en banc in this case on November 16, 2011.
Even if Veterans is citable authority, which it is not, Salazar distinguishes it in two ways. Salazar on the basis in Veterans for Common Sense, the Ninth Circuit did not reach the issue of whether the waiver of sovereign immunity for non-APA claims against federal agencies extends beyond constitutional claims and non-statutory ultra vires claims.
This latter argument is more compelling. Here, the Tribe's declaratory relief action does not allege any wrongs "acted or failed to act" by Salazar. Plaintiffs do not allege a wrong committed by Salazar so as to fit within two requirements of section 702.
Plaintiffs argue that the Kawaiisu's claims against Salazar are created by, inter alia, the Non Intercourse Act, Congressional actions, statutes, as well as the fiduciary obligation that Salazar owes to the Kawaiisu under Federal common law. (Doc. 161, Opposition p. 3-4.) The Declaratory relief claim alleges that plaintiffs are seeking to enforce their rights under the Treaty, as descendants of the signatories from the Treaty of the Utah. (Doc. 133, SAC ¶ 115-117.) They seek a declaration as to:
Plaintiffs have not alleged that "that an agency or an officer or employee thereof acted or failed to act in an official capacity." Indeed, defendant Salazar is not mentioned in the SAC until this last claim for Declaratory Relief. Without this allegation of wrongdoing, the declaratory relief claims fails to fit within the waiver of immunity.
At oral argument, plaintiffs argued that leave to amend should be granted. They argued that they should not be required to go through the acknowledgment process at all because their Treaty rights provide that they are a "tribe." They argue that the BIA had an obligation to place the Kawaiisu on the list of recognized tribes by virtue of these rights. They argue that they are not seeking initial recognition but are challenging BIA's failure to duly include the Tribe on recognition by virtue of the treaty. Plaintiffs cite Mishewal Wappo Tribe of Alexander Valley v. Salazar, 2011 WL 5038356 (N.D.Cal.2011) in support of their proposition.
Plaintiffs argue that they are not seeking recognition "in the first stance" but are challenging the wrongful action of "being left of the acknowledgment list."
Salazar argues that the Kawaiisu should have appealed being left off the Indian list no later than 1994 when the regulations were modified. Salazar argues that there is no presumption of continued Indian existence.
In 1994, Congress enacted the Federally Recognized Indian Tribe List Act ("List Act"), Pub.L. No. 103-454, 108 Stat. 4791 (1994), which requires the Secretary of the Interior to keep a list of all federally recognized tribes, which "should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians." Pub.L. No. 103-454, § 103. That statute, codified as 25 U.S.C. § 479a, defines the term "tribe" as "any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe." 25 U.S.C. § 479a(2).
In this instance, leave to amend should be granted. Rule 15(a) is very liberal and leave to amend `shall be freely given when justice so requires.' AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir.2006) (quoting Fed.R.Civ.P. 15(a)). Here, plaintiffs have raised new potential allegations which may state a claim. Without the benefit of the factual allegations the parties and the Court are unable to determine whether plaintiff may state a factually sufficient claim which plausibly permits relief. Accordingly, leave to amend shall be granted.
For the foregoing reasons, the Court GRANTS in part and DENIES in part the three motions to dismiss as follows:
Plaintiff shall amend the complaint, in strict conformance with this order, and file the amended complaint within thirty days of the service of this order.
IT IS SO ORDERED.
25 U.S.C. § 3013 (1990).
28 U.S.C. § 1505. It is under the Tucker and Indian Tucker Acts that the federal courts have considered claims most similar to those of the Tribe. For example, in United States v. Mitchell (Mitchell II), 463 U.S. 206, 208, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), an Indian tribe brought a Tucker Act cause of action in the Court of Claims (the Court of Federal Claims' predecessor) against the United States for breach of trust responsibilities that originated with a treaty, which was later codified in federal law. This is very much like our case, in which the Tribe's claims against the United States can be characterized as breach of its fiduciary obligations under the Treaty. In addition, as plaintiffs argue that the claim against Salazar is also inextricably intertwined the claim against TMV and TRC, which claims asks for monetary damages, it is arguable that the claims are barred by the Tucker Act.
