Kawaiisu Tribe of Tejon V Department of Interior Second Amended Complaint 4-18-2011

Case 1:09-cv-01977-OWW-SMS Document 133 Filed 04/18/11 Page 1 of 25
1 Evan W. Granowitz (Cal. Bar No. 234031)

WOLF GROUP L.A.
2 11400 W Olympic Blvd Ste 200
Los Angeles, CA 90064
3 Telephone: (310) 460-3528
Facsimile: (310) 457-9087
4 Email: egranowitz@wolfgroupla.com
5 Christopher K. King (Ariz. Bar No. 026966)

THE KING LAW FIRM
6 620 F. St NE, #3
Washington, DC 20002
7 Telephone: 843-343-6013
8 David R. Mugridge (Cal Bar No. 123389)

LAW OFFICES OF DAVID R. MUGRIDGE
9 2100 Tulare St., Suite 505
Fresno, California 93721-2111
10
559-264-2688
Attorneys for Plaintiffs
11
12 UNITED STATES DISTRICT COURT
13 EASTERN DISTRICT OF CALIFORNIA
14
KAWAIISU TRIBE OF TEJON, and Case No.: 1:09-cv-01977 OWW SMS
15
DAVID LAUGHING HORSE ROBINSON,
16 Chairman, Kawaiisu Tribe of Tejon,
PLAINTIFFS’ SECOND AMENDED
COMPLAINT FOR:
17 Plaintiffs,
(1) UNLAWFUL POSSESSION;
18 vs.
(2) NAGPRA;
19 KEN SALAZAR, in his official capacity as
Secretary of the United States Department of (3) CIVIL RIGHTS;
20
Interior; TEJON RANCH CORPORATION, a
Delaware corporation; TEJON MOUNTAIN (4) CEQA, and;
21
VILLAGE, LLC, a Delaware company; (5) DECLARATORY JUDGMENT
22 COUNTY OF KERN, CALIFORNIA; and
DOES 1 through 100, inclusive,
23
Defendants, DEMAND FOR JURY TRIAL
24
TEJON RANCH CORPORATION, a Delaware
25 corporation; TEJON MOUNTAIN VILLAGE,
LLC, a Delaware company,
26
Real Parties in Interest.
27
.
28
1
PLAINTIFFS’ SECOND AMENDED COMPLAINT
1 Plaintiffs, KAWAIISU TRIBE OF TEJON (“Tribe”) and DAVID LAUGHING HORSE
2 ROBINSON (“Robinson”) allege as follows:
3 INTRODUCTION
4 1. This action concerns the development of certain real property in Kern County,
5 California, that was obtained in contravention to treaties, Executive Orders, and other Acts of
6 Congress. The original Complaint in this action was filed on November 10, 2009, by Plaintiff
7 David Laughing Horse Robinson pro se, on behalf of himself, as chairman of his Tribe, and on
8 behalf of his tribal members (Docket #1). Plaintiffs subsequently retained counsel and filed their
9 first amended complaint (FAC) on August 15, 2010. (Doc # 70).
10 2. On April 1, 2011, the Court entered an order granting the various Defendants’
11 motions to dismiss Plaintiffs FAC. In its memorandum decision, the Court granted Plaintiffs
12 leave to amend in order to assert any land claims based upon aboriginal title or under common
13 law and to re-allege certain claims, but not others.
14 PARTIES
15 3. Plaintiff THE KAWAIISU TRIBE OF TEJON (hereinafter “Tribe”) is an Indian
16 tribe which has resided in the State of California since time immemorial. The Tribe is recognized
17 by the State of California and its members are located in Kern County, California. The Tribe
18 descends from signatories to of the 1849 Treaty with the Utah and the “Utah tribe of Indians”
19 that was recognized by the government of the United States in that treaty. In addition, the Tribe
20 descends from those Indians for whom the 1853 Tejon/Sebastian Reservation was created. The
21 members of the Tribe are not now, nor have they ever been “Mission Indians.”
22 4. Plaintiff DAVID LAUGHING HORSE ROBINSON (“Robinson”), is the
23 Chairman of THE KAWAIISU TRIBE OF TEJON.
24 5. The Tribe is not currently on the list of federally recognized tribes maintained by
25 the Bureau of Indian Affairs pursuant to 25 C.F.R. §83 et seq. However, the Tribe is a Federally
26 recognized tribe by virtue of descending from signatories to -the 1849 Treaty with the Utah and
27 the “Utah tribe of Indians,” although the Federal Government has failed to treat it as such.
28
2
1 6. The United States has been asked to intervene and file suit against Defendants
2 Tejon Mountain Village, Tejon Ranch Corporation and the County of Kern asserting claims
3 identical to that described here in this complaint, but has not done so.
4 7. Defendant COUNTY OF KERN, CALIFORNIA (“County”), is the Lead Agency
5 for the Tejon Mountain Village Project (State Clearing House Project #2005101018).
6 8. Defendant TEJON MOUNTAIN VILLAGE, LLC (“TMV”), is a Delaware
7 limited liability company, with its principal place of business in the County of Kern, California.
8 TMV is a privately held corporation seeking to develop real property in Kern County, California.
9 Plaintiffs are informed and believe and thereon allege that TMV is in possession of, asserts an
10 interest in, or claims record title to certain lands in Kern County, California, which are a portion
11 of the reservation and aboriginal lands of the Tribe, as appears more fully elsewhere in this
12 complaint. TMV’s position is adverse to the Tribe.
13 9. Defendant TEJON RANCH CORPORATION (“TRC”), is a Delaware
14 corporation with its principal place of business in Kern County, California. Plaintiffs are
15 informed and believe and thereon allege that TRC is the parent corporation of TMV. Plaintiffs
16 are informed and believe and thereon allege that TMV is in possession of, asserts an interest in,
17 or claims record title to certain lands in Kern County, California, which are a portion of the
18 reservation, and aboriginal lands of the Tribe, as appears more fully elsewhere in this complaint.
19 TRC’s position is adverse to the Tribe.
20 10. The true names and capacities, whether individual, partner, associate, corporate or
21 otherwise, of the Defendants identified as DOES 1 through 100, inclusive, are unknown to
22 Plaintiffs who therefore sue them by such fictitious names. Plaintiffs are informed and believe,
23 and on that basis allege that each of the Defendants sued herein as a DOE Defendant was, and is,
24 in some manner legally responsible for the events herein described. Plaintiffs will seek leave of
25 Court to amend this Complaint if, and at such time as their true names and capacities are
26 ascertained.
27 11. Plaintiffs are informed and believe, and on that basis allege that at all times herein
28 mentioned, Defendants, and each of them, were the agents, employees, servants, and
3
1 representatives of each of the remaining Defendants, and in doing or failing to do the acts herein
2 alleged, were acting in the course and scope of their authority as agents, employees, servants and
3 representatives, and acted or failed to act, with the permission, consent and ratification of each of
4 the remaining Defendants.
5 JURISDICTION AND VENUE
6 12. Venue properly lies in the Eastern District of California because a substantial part
7 of the events which give rise to Plaintiffs’ claims occurred within the district. The real property
8 at issue is located in Kern County, California, and thus similarly lies within the district. 28
9 U.S.C. §1391 (b)(2).
10 13. Jurisdiction over this action is conferred by 28 U.S.C. §§ 1331, 1337, 5 U.S.C. §
11 702, 25 U.S.C. § 3013, and the All Writs Act, 28 U.S.C. § 1651. The amount in controversy
12 exceeds $100,000 exclusive of interest and costs.
13 14. Plaintiffs’ claims for relief arise under, inter alia, the federal restriction against
14 the extinguishment of title to the land of Indian tribes or of the right of occupancy of said Indian
15 tribes, except by action of the United States, under Article 1, Section 8 of the Constitution of the
16 United States, the Indian Non-Intercourse Act, 25 U.S.C. § 177, and under common law.
17 15. Because there is a sufficient nexus between Plaintiffs’ state law claims and the
18 federal questions at issue, this Court may exercise its supplemental jurisdiction. 25 U.S.C.
19 §1367.
20 BACKGROUND
21 A. THE KAWAIISU PEOPLE AND THEIR LANDS
22 16. The KAWAIISU TRIBE OF TEJON is one of the ancient Great Basin Shoshone
23 Paiute tribes whose pre-European territory extended from Utah to the Pacific Ocean. They have
24 inhabited this area from time immemorial. At various times throughout history, the Kawaiisu
25 People have been called any one or more the following names: Nochi, Cobaji, Cobajais, Covaji,
26 Kahwissah, Kawiasuh, Kawishm, Kowasah, Kubakhye, Newooah, Noches Colteches,
27 Tahichapahanna, Tahichp.
28
4
1 17. Documentation of the Tribe’s presence in this area dates back to the Spanish
2 colonial period and is recorded in Father Garces Diseno Maps of 1777 (Ex.1). The maps note the
3 presence of the Tribe using several of its designations including: Cobaji, Cobajaef, Quabajai,
4 Nochi, and Nochis.
5 18. Before California was admitted to the Union, the Tribe’s ancestors were
6 signatories to the Treaty Between the United States of America and the Utah Indians, which is
7 known as the Treaty with the Utahs (“Treaty”), signed on December 30, 1849, and ratified by the
8 Senate on September 9, 1850. 9 Stat. 984.
9 19. The initial paragraph of the Treaty states that it is made between United States of
10 America through its agent and, among others, Acaguate nochi, Cobaxanor, Nochichigue and
11 Panachi, the “principal and subordinate chiefs, representing the Utah tribe of Indians.”
12 20. The Tribe and its members are descendents of, among others, Acaguate nochi,
13 Cobaxanor, Nochichigue and Panachi, signatories to the Treaty with the Utahs. “Nochi” in
14 Kawaiisu means “badger.” “Tejon” in Spanish means “badger.” “Cobaji” in Kawaiisu means
15 “people with body hair.” As translated into English, Acaguate nochi is the signor from Twin
16 Oaks/Sand Canyon Badgers, Cobaxanor is the signor from the people with body hair near Cantil,
17 Nochichigue means the badger with white birds tail and Panachi means water badger.
18 21. Article 1 of the Treaty also recognized the “Utah tribe of Indians,” which
19 Plaintiffs are informed and believe was actually a federation of Indian tribes.
20 22. Article 2 of the Treaty states, inter alia, that “all cases of aggression against said
21 Utah shall be referred to the aforesaid government for adjustment and settlement.”
22 23. Article 4 of the Treaty states in relevant part: “The contracting parties agree that
23 the laws now in force, and such other laws as may be passed, regulating the trade and
24 intercourse, and for the preservation of peace with the various tribes of Indians under the
25 protection and guardianship of the government of the United States, shall be as binding and
26 obligatory upon said Utahs as if said laws had been enacted for their sole benefit and protection.”
27 24. In force at the time was the Indian Non-Intercourse Act (“NIA”), which provided
28 that “no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto,
5
1 from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the
2 same be made by treaty or convention entered into pursuant to the Constitution.” 25 U.S.C. 177.
3 25. On June 10, 1851, the headmen of the Tribe signed another treaty at Camp
4 Persifer F. Smith at the Texan (Tejon) Pass with U.S. Commissioner George W. Barbour. In this
5 treaty, known as Treaty D, the Tribe agreed to cede large portions of its land in return for a
6 defined reservation along with other goods and supplies for subsistence. Schedule of Indian Land
7 Cessions, Eighteenth Annual Report of the Bureau of American Ethnology to the Secretary of the
8 Smithsonian Institution 1896-1897, 56th CONG, 1ST SESS. HOUSE DOCUMENT 736 at 782-783
9 (1899); (Ex. 2). While at all times the Tribe relied upon this treaty as if it were in force, the
10 Senate secretly neglected to ratify this treaty so that these lands could be open for exploitation,
11 un-encumbered by claims of Indian title, for the hordes of settlers moving west for the gold-rush.
12 See Claims of California Indians, HEARINGS BEFORE THE COMMITTEE ON INDIAN AFFAIRS,
13 HOUSE OF REPRESENTATIVES, 70TH CONG., 1ST SESS. ON H.R. 491 at 5-6, 18 (March 8 & 15, 1928).
14 There was no notice of Treaty D’s non-ratification until January 18, 1905.
15 26. On March 3, 1853, Congress passed an Act authorizing the President to create
16 “five military reservations for the protection of Indians” in the State of California. 10 Stat 226,
17 238.
18 27. On September 30, 1853, California Indian Superintendent Edward F. Beale
19 communicated to Commissioner of Indian Affairs, George W. Manypenny, that he had
20 established a reservation at Tejon Pass for the Tejon Indians pursuant to the Act of March 3,
21 1853. Beale to Manypenny, September 30, 1853, in Senate Executive Documents, 33 Cong., 1st
22 Sess., 1, part 1, 469-474; see also REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS, 1853, 469-
23 72; 56th CONG, 1ST SESS. HOUSE DOC NO. 736: EIGHTEENTH ANNUAL REPORT OF THE BUREAU OF
24 AMERICAN ETHNOLOGY TO THE SECRETARY OF THE SMITHSONIAN INSTITUTION, 1896-1897:
25 Indian Land Cessions in the United States at 788-789. This 75,000 acre area was surveyed and
26 its metes and bounds were recorded. (Ex. 3). Congress would later reduce the size of and make
27 specific appropriations for the newly established reservations in California with the Act of March
28 3, 1855. However, these ordered reductions were never surveyed. 10 Stat. 686, 699, see also 56th
6
1 CONG, 1ST SESS. HOUSE DOCUMENT 736 at 788-789. The establishment of the Tejon Reservation
2 was noted in the Congressional Globe on October 19, 1857. (Ex. 4). The Tejon/Sebastian
3 Reservation would be re-surveyed at 49,928 acres in 1858. (Ex. 5). The presence of the
4 reservation was known and acknowledged in 1877. (Ex.6).
5 28. Plaintiffs are informed and believe and thereon allege that in or about 1856, ex-
6 superintendent Beale and others drew up patents under old Spanish land grants for the
7 approximately 270,000 acres that now comprises Tejon Ranch, all of which was within the
8 Tribe’s aboriginal land, including most or all of the land covered by the original Tejon/Sebastian
9 Reservation. Some of the Indians located on the Tejon/Sebastian Reservation were then forcibly
10 removed to the Tule Reservation. 56th CONG. 1ST SESS. HOUSE DOC. No. 736 at 788, 789.
11 Plaintiffs are informed and believe and thereon allege that title to the herein described lands
12 eventually passed to Defendants TRC and/or TMV. To the extent that any title descending from
13 Beale’s self appointed patents has deprived the Tribe of lands, which the Tribe historically
14 occupied or lands reserved pursuant to the 1853 executive order, such deprivation was not
15 approved by any action of either the United States or Congress and was therefore unlawful under
16 the NIA. Only Congress can terminate a reservation or diminish its boundaries for “once a block
17 of land is set aside for an Indian reservation . . . no matter what happens to the title of the
18 individual plots, the entire block retains its reservation status until Congress explicitly indicates
19 otherwise.” Solem v. Bartlett 465 U.S. 463, 470 (1984).
20 29. Plaintiffs are informed and believe and thereon allege that no acts of termination
21 with respect to the 1853 reservation as established by Beale have ever been affirmed, nor has
22 there been an act of termination identifying the Tribe by any of its names.1
23 30. On June 15, 1880, Congress authorized the issuance of allotments for lands in an
24 agreement with the Utes of Colorado. 21 Stat. 199. Under this Act’s authority, in 1893, 70
25 allotments were issued to predecessors of the Tribe. Plaintiffs are informed and believe and
26 thereon allege that many of these allotments may have been sold off over the years without
27
1
28 Cobajais, Cobaji, Covaji, Kah-wisf-sah, Kawaiisu, Ka-wit-a-suh, Kawishm, Kow-a’-sah, Kubakhye,
Newoor-ah, Noches Colteches, Ta-hi-cha-pa-han-na, and Ta-hichpt. (See Ex. 8)
7
1 proper authorization from the United States. Absent specific language indicating intent to
2 abolish a reservation, the issuance of allotments pursuant to various allotment acts is consistent
3 with continued reservation status. Mattz v. Arnett 412 U.S. 481, 497 (1973), See also Bueginig v.
4 Hoopa Valley Tribe 266 F.3d 1201, 1220-1222 (9th. Cir. 2001) (finding that the federal
5 government retained jurisdiction to protect the cultural and natural resources of the reservation
6 despite the fact that land owned by non-Indians as a result of the allotment policy would be
7 affected by such regulation).
8 31. Between 1915 and 1945, multiple communications between California Indian
9 agents and Washington, D.C., detail the presence of the Tribe on the Tejon Reservation and the
10 importance of provisioning for their continued needs and sustenance.
11 32. In June of 1949, The California Indian Agency at Sacramento reported to the
12 Commissioner on Indian Affairs on the Indian population demographics and land status
13 throughout the state. The Agency reported that there were 3,384 acres of Indian trust land in
14 Kern County as of April 1, 1949. Population data for Kern County indicated that there were 454
15 Indians in Kern County on the Special Roll approved in May of 1933. By the time of the
16 Agency’s Census Roll of January 1, 1945, this number had dropped to 62. PROGRAM FOR THE
17 TERMINATION OF INDIAN BUREAU ACTIVITIES IN THE STATE OF CALIFORNIA, prepared by
18 California Indian Agency, Sacramento California at 11 (June 1949) (Ex. 7). While Plaintiffs
19 dispute that this data represents an accurate reflection of the Indian trust acreage or population in
20 Kern County at the time, it is evidence that Interior recognized that Indian lands and peoples
21 existed.
22 33. The allegations contained above present a colorable question of whether that the
23 land at issue is indeed Indian country. To the extent that title was obtained from the Tribe and
24 eventually passed to Defendants TRC and/or TMV, any such conveyance was not with the
25 express approval of the United States or by explicit approval of Congress. Such facts present a
26 substantial question of federal law that this Court is competent to resolve. See Cayuga Indian
27 Nation v. Village of Union Springs, 293 F.Supp. 2d 183, 190 (N.D.N.Y 2003) (denying
28
8
1 defendant’s motion to dismiss for lack of subject matter jurisdiction because whether or not
2 property at issue was Indian country presented a federal question).
4 B. DESCRIPTION OF PLAINTIFFS’ ABORIGINAL TITLE
5 34. Defendants TMV and TRC are in possession of lands or claim title to or have an
6 interest in lands commonly known as Tejon Ranch, approximately 270,000 acres of land of
7 which Plaintiffs have aboriginal title, in violation of the Non-Intercourse Act and common law.
8 35. In the alternative, Plaintiffs are informed and believe and thereon allege that TMV
9 and TRC are in possession of lands or claim title to or have an interest in lands within what is
10 commonly known as Tejon Ranch, approximately 49,000 acres as shown on the 1858 Survey of
11 the Tejon/Sebastian Reservation, of which Plaintiffs have aboriginal title, in violation of the
12 Non-Intercourse Act and common law. This land is at or about,2 all that portion of the following
13 described land lying, within the County of Kern, State of California, described as follows:
14 Beginning at the South 1/4 Corner of Projected Section 36 Township 32 South,

Range 29 East, Mount Diablo Base and Meridian, thence South 68 degrees East a
15 distance of 29,568.00 feet, thence North 80 degrees East a distance of 10,032.00
feet, thence South 45 degrees East a distance of 16,368.00 feet, thence West 0
16 degrees a distance of 15,180.00 feet, thence South 45 degrees West a distance of
56,750.00 feet, thence West 0 degrees a distance of 31,020.00 feet, thence North
17 60 degrees West a distance of 13,200.00 feet, thence North 57 degrees East a
distance of 61,182.00 feet to the Point of Beginning. (Ex. 9).3
18
19 C. THE TEJON MOUNTAIN VILLAGE PROJECT
20 36. Between 2001-2005, Defendants TMR and/or TMV submitted development
21 proposals to the County to construct Tejon Mountain Village, an approximate 28,253 . . . with a
22 mix of residential, commercial, and recreational uses,” which “include up to 3,450 residences . . .
23 up to 160,000 square feet of commercial development . . . various hotel, spa, and resort facilities,
24
2
25 This legal description is Plaintiffs’ best estimate based on the 1858 Survey Map of the reservation. The
true point of beginning for this parcel of land has never been established or described of record and will
26 likely not be able to be determined without obtaining the surveyor’s field notes, which Plaintiffs are
informed and believe are in the possession of the United States. Plaintiffs reserve the right to amend or
27 otherwise alter this legal description.
3
Exhibit 9 is more current map showing the estimated boundaries of the 1858 Tejon/Sebastian
28 Reservation. Ex. 9 was prepared with the estimates from the approximate legal description. Plaintiffs
reserve the right to amend or otherwise alter this map.
9
1 with up to 750 lodging units at up to 7 locations” as well as “a number of recreational and
2 educational facilities, including a nature center, farmers market, day camps, equestrian facilities,
3 sporting clays course, parks, play lawns, trails, swimming, boating, docks on the lake, up to four
4 18-hole golf courses, and riding and hiking trails.” (the “Project”).
5 37. The entire Project falls within the land to which Plaintiffs claim aboriginal title
6 identified in paragraph 34. Plaintiff is informed and believes and thereon alleges that portions of
7 the Project fall within the lands to which Plaintiffs alternatively claim aboriginal title as
8 identified in paragraph 35.
9 38. The NAHC is the state trustee agency designated to protect California’s Native
10 American Cultural Resources. Plaintiffs are informed and believe and thereon allege, when the
11 NAHC contacted the County with respect to the TMV project on July 13, 2009, they indicated
12 that a search of their Sacred Land Files indicated that no Native American Cultural Resources
13 were indentified. They then recommended that the County contact interested Native American
14 consulting parties in the area in order to be in compliance with numerous state and federal
15 requirements (California Environmental Quality Act § 15064.5(d); NEPA, 42 U.S.C. §4321-
16 43351; §106 and 4(f) of federal NHPA, 16 U.S.C. §470(f) et. seq; and NAGPRA, 25 U.S.C.
17 §3001-3013).
18 39. Within the proposed project development area, there are over 50 pre-historic
19 village sites, numerous graves, and other sacred sites directly related to the Tribe.
20 40. In both written and oral testimony and statements made to the County, tribal
21 members have stated that both refusal of access and outright destruction have taken place with
22 respect to these sites.
23 41. Plaintiffs are informed and believe and thereon allege, based upon a letter from
24 the NAHC, that at all times between, in or about, 2000 and the present date, Plaintiffs were on
25 the NAHC’s list of Native American Contacts. Nonetheless, the County did not contact
26 Plaintiffs to consult with them on the project’s potential impacts on sacred, archeological, and
27 historical sites.
28
10
1 42. County had Plaintiff Robinson listed on their in-house roster of Native American
2 Contacts for California Senate Bill 18, and provided him with notice for other projects in 2005
3 when the Archaeology Surveys were being conducted on the project footprint. The County knew
4 of the Tribe’s presence in Kern County and of Plaintiff Robinson’s long-standing involvement
5 with the protection of cultural resources in the area.4
6 43. The County received 81 comments requesting an extension of the 45-day public
7 comment period for the Draft EIR. Denying these requests, the public comment period ended on
8 July 13, 2009 and a hearing was scheduled before the Planning Commission on August 13, 2009.
9 44. Before the final public hearing, Plaintiff Robinson timely submitted written and
10 oral comments to the County, objecting to and commenting on the Project on numerous grounds.
11 45. On August 13, 2009, Plaintiff Robinson appeared before the County Planning
12 Commission to detail the facts evidencing the federal status of the land before either the
13 Commission or Board of Supervisors could vote on the project.
14 46. Plaintiff Robinson wrote to the Commission again on September 28, 2009, and
15 appeared before the Commission on October 5, 2009 to give evidence of the status of the land
16 and to express concerns over gravesites.
17 47. While not mentioned in the EIR, it was brought to the Planning Commission’s
18 attention both at this meeting and in writing that TMV was planning to build a casino within the
19 historic Tejon/Sebastian Reservation. The Commission denied any such allegations and stated
20 there was no need to include it in the EIR.
21 48. There is evidence showing that TRC has invested significant sums with large
22 national lobbying firms to represent the interests of a ‘Tejon Indian Tribe’ in forming a
23 corporation and waiving any Indian claims to the project. Members of this ‘Tejon Indian Tribe’
24 are named as Consultants and Monitors for the project in the EIR.
25 49. The Environmental Impact Report (“EIR”) shows a wanton disregard for the
26 existence of cultural resources and sites that are sacred to the Tribe. Not only does the approved
27
4
28 The Koso Native Graves Protection Committee, National Park Service & Smithsonian NAGPRA
Committees, etc.
11
1 EIR allow for their destruction, but it also regards TMV as being the owner of the remains and
2 any associated archeological materials.
3 50. At the October 5th hearing, the County expressly admitted that only a portion of
4 the cultural sites had been evaluated.
5 51. Nevertheless, the County filed its Notice of Determination for the Tejon Mountain
6 Village project on October 13, 2009.
7 FIRST CLAIM FOR RELIEF
8 CLAIM FOR UNLAWFUL POSSESION UNDER COMMON LAW, VIOLATION OF
9 NON-INTERCOURSE ACT, TRESSPASS, ACCOUNTING
10 By Plaintiffs Against Defendants Tejon Ranch Corporation,
11 Tejon Mountain Village and Does 1 through 50
12 52. Plaintiffs hereby incorporate by reference each and every allegation contained in
13 paragraphs 1 through 51 above as though fully set forth at length.
14 53. The lands described in paragraphs 34 through 35 of this Complaint are in the
15 possession of Defendants TRC, TMV and DOES 1 through 50 (collectively referred to in this
16 claim for relief as “Defendants”), claiming title to or other interests in such land as described
17 herein.
18 54. At all relevant times, Defendants have and are trespassing on Plaintiffs’ land.
19 55. Defendants have injured Plaintiffs by precluding them from possessing said land,
20 in violation of federal restrictions against the extinguishment of Indian title except by action of
21 the United States, Article 1, §8 of the Constitution of the United States and 25 U.S.C. §177, and
22 in violation of common law and the Non-Intercourse Act.
23 56. As a result of Defendants’ unlawful possession, Plaintiffs have been denied the
24 use and enjoyment of any rental income and profits rightfully due to them from said land for the
25 entire period of its dispossession.
26 57. As a further result of Defendants’ unlawful possession, Plaintiffs have been
27 denied the use and enjoyment of the fair market value of the land for the entire period of their
28 dispossession.
12
1 58. As a further result of Defendants’ unlawful possession, Plaintiffs have been
2 denied the use and enjoyment of the fair market value of the natural resources from the land for
3 the entire period of their dispossession.
4 59. Plaintiffs are informed and believe and thereon allege for the entire period of their
5 dispossession, that Defendants have utilized the land for agricultural production, the recovery of
6 natural resources, including oil, the sale of various easements, licenses and other uses of the land
7 and have been unjustly enriched thereby.
8 60. Accordingly, Plaintiffs are entitled to the relief specified below.
9 SECOND CLAIM FOR RELIEF
10 VIOLATIONS OF NAGPRA, 25 U.S.C. § 3001, et seq.
11 By Plaintiffs Against Defendants Tejon Ranch Corporation,
12 Tejon Mountain Village And Does 45 Through 60
14 paragraphs 1 through 60 above as though fully set forth herein.
15 62. Plaintiffs are informed and believe and thereon allege that between 2001 and the
16 October 5, 2009 County Supervisor’s hearing, Defendants TRC, TMV and DOES 45 through 60
17 (collectively referred to in this claim for relief as “Defendants”), damaged or destroyed seven or
18 more Native American cemeteries, graves, sacred sites and/or artifacts in connection with the
19 development of the TMV Project. In each of these instances, Defendants knew or had reason to
20 know that they had discovered Native American cultural items within the meaning of NAGPRA.
21 63. Plaintiffs are informed and believe and thereon allege that this damage or
22 destruction occurred both on the Tejon/Sebastian Reservation property and within the Tejon
23 Mountain Village Development footprint that is within land to which Plaintiffs hold aboriginal
24 title.
25 64. Plaintiffs are informed and believe and thereon allege that this damage and
26 desecration was caused by both heavy equipment used by Defendants as well agriculture activity,
27 such as Defendants’ horse and cattle grazing.
28
13
1 65. At no time was Tribe or Robinson notified by Defendants that they had
2 discovered Native American cultural items.
3 66. Plaintiffs are informed and believe and thereon allege that in or about 2001
4 Defendants excavated or otherwise discovered a Native American cultural item in the form of a
5 stone containing mortar hole and gave it as a retirement gift to an employee of the fire
6 department to place at his home on Panorama drive.
7 67. Plaintiffs are informed and believe and thereon allege that in or about 2001
8 multiple Native American remains were unearthed as a result of Defendants conducting seismic
9 trenching near Castaic Lake.
10 68. Plaintiffs are informed and believe and thereon allege that in or about 2002, a
11 cemetery near Tejon Creek was torn up by cows and horses.
12 69. Plaintiffs are informed and believe and thereon allege that the entire cemetery and
13 the cultural items therein were damaged or destroyed as bones and bone fragments were
14 scattered about.
15 70. Plaintiffs are informed and believe and thereon allege that in or about 2004,
16 Defendants flooded and dug up cemeteries in connection with road construction in the vicinity of
17 Castaic lake.
19 Defendants bulldozed multiple cemeteries and grave sites near Bear Trap Canyon and thereby
20 damaged or destroyed cultural items.
22 Defendants unearthed cultural patrimony in the form of grinding rocks near the TRC
23 headquarters in or about Lebec, California.
24 73. Plaintiffs are informed and believe and thereon allege that at some time between
25 2001 and the October 5, 2009, a Native American cemetery within the Tejon/Sebastian
26 Reservation was “torn to bits” by Defendants.
27
28
14
1 74. Plaintiffs are informed and believe and thereon allege that Defendants knew, or
2 had reason to know, that in each of the above described instances Defendants discovered Native
3 American cultural items on Federal or tribal lands.
4 75. Plaintiffs are informed and believe and thereon allege that TRC and TMV failed
5 to notify in any manner, Plaintiffs, who are the appropriate Indian tribe with respect to the lands
6 where the discoveries were made.
7 76. Plaintiffs are informed and believe and thereon allege that Tribe and Robinson
8 were known by Defendants or readily ascertainable by Defendants at the time that the
9 discoveries were made.
10 77. Plaintiffs are informed and believe and thereon allege that at all times since 2000,
11 Plaintiffs have been on the list of tribal contacts maintained by the Native American Heritage
12 Commission for all projects in the Kern County area. Plaintiffs are further informed and believe
13 and thereon allege that at all times since 2002, Plaintiffs have been on the Most Likely
14 Descendents list maintained by the Native American Heritage Commission for all discoveries
15 made in the Kern County area.
16 78. Plaintiffs are informed and believe and thereon allege that Defendants made the
17 discovery in connection with an activity relating to the development of the Tejon Mountain
18 Village and other areas within the land allegedly owned by TRC, including (but not limited to)
19 evaluation of the site for future construction and in preparation for construction.
20 79. Plaintiffs are informed and believe and thereon allege that Defendants did not
21 cease activities in the area of the discovery, make a reasonable effort to protect the items
22 discovered before resuming such activity, or provide notice to Plaintiffs.
23 80. Plaintiffs are informed and believe and thereon allege that Defendants illegally
24 resumed the activity that resulted in the discovery before receiving the required certification
25 from Plaintiffs that notification had been received, and thus without waiting the mandatory 30
26 days after receiving Plaintiffs’ certification.
27 81. Plaintiffs are thus entitled to the relief requested below.
28
15
1 THIRD CLAIM FOR RELIEF
2 VIOLATIONS OF CIVIL RIGHTS -- 18 U.S.C. § 1983
3 By Plaintiffs Against County and Does 61 through 80
5 paragraphs 1 through 60 above as though fully set forth herein.
6 83. County and Does 61 through 80 (collectively referred to in this claim for relief as
7 “County”), by approval of the TMV Project, subjected Plaintiffs and/or caused Plaintiffs to be
8 subjected to the deprivation of their rights secured by the Constitution and the law.
9 84. County’s approval of the TMV Project deprived Plaintiffs of their rights to due
10 process of law prior to the deprivation of property, guaranteed by the 5th Amendment of the
11 Constitution, as applied to the States by the 14th Amendment to the Constitution, in that the
12 County authorized Defendants TRC and TMV to build upon land to which Plaintiffs have
13 aboriginal title and to exclude Plaintiffs from said lands. In addition, County deprived Plaintiffs
14 of due process by finding that TMV “own the remains” of the Kawaiisu tribal people or the
15 artifacts found in and around the graves and not requiring that said items will be repatriated to
16 the Tribe when discovered as contemplated by NAGPRA.
17 85. County’s approval of the TMV Project deprived Plaintiffs of their rights to be free
18 from the deprivation of property without just compensation as guaranteed by the 5th Amendment
19 of the Constitution, as applied to the States by the 14th Amendment to the Constitution, in that
20 the County authorized Defendants TRC and TMV to build upon land to which Plaintiffs have
21 aboriginal title and to exclude Plaintiffs from said lands.
22 86. County’s approval of the TMV Project deprived Plaintiffs of their common law
23 rights to be free of trespassers, and to possess, use and enjoy land to which they hold aboriginal
24 title, in that the County authorized Defendants TRC and TMV to enter and build upon said land.
25 87. County’s approval of the TMV Project deprived Plaintiffs of their rights under the
26 Non-Intercourse Act in that the County authorized Defendants TRC and TMV to build upon land
27 that belongs to Plaintiffs, and which was acquired by Defendant TRC, if at all, in violation of the
28 Non-Intercourse Act.
16
1 88. Plaintiffs are thus entitled to the relief requested below.
2 FOURTH CLAIM FOR RELIEF
3 VIOLATION OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
4 AND GOVERNMENT CODE § 65352.3
5 By Plaintiffs Against the County of Kern, Real Parties in Interests TRC,
6 TMV and DOES 81 through 90
9 90. Plaintiffs seek a writ of mandate from this Court to prohibit the County, TRC,
10 TMV and DOES 81 through 90 (collectively referred to as, “Defendants”) from implementing or
11 in any way proceeding with the development of the Project.
12 91. The County approved the Project without adequate and necessary steps to comply
13 with the California Environmental Quality Act, codified at Public Resources Code sections
14 21000, et seq., (“CEQA”).
15 92. Plaintiffs possess significant interests in the environmental effects of the Project,
16 and in preserving the environmental state of their properties because Plaintiffs are a tribe of
17 Native Americans who have aboriginal title to the lands on which the Project is designated.
18 Plaintiffs will be directly harmed by Defendants’ implementation of the Project in violation of
19 CEQA because there are more than 50 sacred sites located within the Project area, including
20 numerous burial grounds in which the Tribe’s ancestors are buried, that will be disturbed if
21 Defendants are permitted to proceed with the Project in violation of CEQA. As “persons” under
22 CEQA, Plaintiffs are entitled to petition this Court for a writ of mandate ordering Respondents to
23 comply with CEQA. Pub. Res. Code § 21066.
24 93. The actions and inactions complained of all occurred within the 90 days of the
25 filing of the initial complaint in this action that asserted violations of, inter alia, CEQA.
26 94. A court shall issue a writ of mandate ordering a public agency to perform a
27 mandatory duty under CEQA if the court finds the agency committed a prejudicial abuse of
28 discretion. Pub. Res. Code §§ 21168, 21168.5; Code Civ. Proc. §§ 1094.5, 1085(a). In the
17
1 context of CEQA, an abuse of discretion “means the agency failed to proceed as required by law
2 or there was no substantial evidence to support its decision.” Pub. Res. Code § 21168.5.
3 95. Defendants’ actions and failures to act, which gave rise to this Petition, occurred
4 in Kern County, California. The Project is located wholly within Kern County, California. The
5 environmental effects resulting from the Project will impact Kern County, California.
6 96. On September 30, 2005, the County determined that the proposed project may
7 have a significant effect on the environment, and that an Environmental Impact Report (“EIR”)
8 was required.
9 97. CEQA requires that any project that causes a substantial adverse change in the
10 significance of a historical or archeological resource is a “significant effect” requiring the
11 preparation of an EIR. 14 Cal. Code Regs. §15064.5(b)(c)(f). In the EIR, the lead agency is
12 required to assess whether the project will have an adverse impact on these resources within the
13 area of potential effect and, if so, to mitigate that effect. §15382. Lead agencies should consider
14 avoidance when significant cultural resources could be affected by a project. §§ 15064.5, 15370.
15 In the event of an accidental discovery of any human remains, construction or excavation must
16 stopped until the county coroner or medical examiner can determine whether the remains are
17 those of Native Americans. Health and Safety Code §7050.5, Pub. Res. Code §5097.98, 14 Cal.
18 Code Regs. §15064.5(d).
19 98. Plaintiffs are informed and believe and thereon allege that Defendants were
20 required to contact the NAHC and obtain a list of tribal contacts no later than the filing of the
21 Notice of Intention in 2005.
22 99. Plaintiffs are informed and believe and thereon allege that Defendants failed to
23 contact NAHC in 2005 and request such a list. In the alternative, Defendants obtained such a
24 list, which identified Plaintiffs as a contact, and failed to notify Plaintiffs of their rights to
25 consultation regarding the proposed Project.
26 100. Plaintiffs are informed and believe and thereon allege that the initial study
27 identified the existence of, or the probable likelihood of, Native American human remains within
28
18
1 the Project. County was therefore required to notify and work with Plaintiffs as provided in Cal.
2 Public Resources Code section 5097.98, but failed to comply with either of these obligations.
3 101. The factors considered and procedures used in completing the EIR were deficient
4 under CEQA for numerous reasons, including but not limited to, the following:
5 a. Failure to adequately analyze the impacts of the Project on cultural
6 resources and failure to adequately analyze the mitigation measures that would
7 substantially lessen the Project’s significant, irreversible, environmental impacts;
8 b. Omission of proper notice to, adequate consultation with, and establishing
9 Most Likely Descendant status with the Tribe and the Tribe’s Chair, David Laughing
10 Horse Robinson;
11 c. Native American Monitors and Most Likely Descendants on this Project
12 were not properly documented as California Native Americans;
13 d. Inadequacy of disclosure and lack of transparency on the part of the
14 County and EIR tribal consultants.
15 e. Complete lack of evidence to support the determination regarding Native
16 American cultural sites and the adequacy of the identified mitigation measures.
17 Native American Grave Sites
18 102. An EIR must propose mitigation measures that will minimize the Project's
19 significant impacts by reducing or avoiding them. Cal. Pub. Res. Code §§ 21002, 21100.
20 103. The EIR acknowledges that the Project with have a potentially significant effect
21 on the disturbance of human remains, including those interred outside of formal cemeteries, but
22 the EIR makes the erroneous and unsubstantiated conclusion that the environmental impact after
23 implementing certain mitigation measures is reduced to “less than significant.”
24 104. The EIR specifies a single mitigation measure for grave sites, which is “[i]n the
25 event of an accidental discovery of any human remains, the steps and procedures specified in
26 California Health and Safety Code Section 7050.5, State CEQA Guidelines Section 15064.5(e)
27 (OPR 2004), and California Public Resources Code Section 5097.98 shall be implemented.”
28 However, the efficacy of the mitigation measure is not apparent and there is no evidence in the
19
1 record that shows, much less establishes, the adequacy of this mitigation measure. Moreover, no
2 substantial evidence supports that determination, which is thus arbitrary and capricious given
3 that the proposed mitigation measure is facially defective and impotent in protecting the burial
4 sites.
5 105. The EIR does not identify, adequately describe, or protect the Indian sacred sites
6 or burial grounds within the Project. County, TRC and TMV have not made reasonable or good
7 faith efforts to identify these Native American sacred sites and burial grounds. No attempt has
8 been made to avoid or minimize disturbance of these sites. Rather, the EIR simply states that
9 TRC will “follow the law” with respect to discovered remains, which is tantamount to no
10 mitigation measure at all.
11 Native American Archeological and Historical Sites
12 106. The EIR acknowledges that the Project may cause a substantial adverse change in
13 the significance of a archaeological or historical resource including Native American cultural
14 sites. The EIR concludes that the level of significance after the mitigation measures is “less than
15 significant.” However, the efficacy of the mitigation measures is not apparent and there is no
16 evidence in the record to support their efficacy. Moreover, no substantial evidence supports that
17 determination, which is thus arbitrary and capricious given that the proposed mitigation
18 measures are facially defective and impotent in protecting the cultural sites.
19 107. A lengthy 2004 archaeological survey of the Tejon Mountain Village area was not
20 considered in the DEIS or the DEIR and that the TMV DEIR, released after the DEIS, features
21 an Archaeological Study prepared by Tejon Ranch that purports to identify 58 sites within the
22 Tejon Mountain Village “study area.” Even a cursory review of Tejon Ranch history would have
23 lead to the identification of other Native American villages, sacred sites, burial ground, trails,
24 and other footprints within the proposed DHCP boundaries.
25 108. The mitigation measures are fatally defective because they are based on a broken
26 foundation, that TRC and TMV have identified all of the archaeological and cultural sites within
27 the Project, but this is not the case. The EIR proposes as a foundational mitigation measure that
28 TRC and TMV will provide County’s Planning Department with a map indicating the location
20
1 of each of the identified archaeological sites and that This map will be kept in confidence by the
2 County’s Planning Department.. This measure is ineffective because TRC and TMV have not
3 identified all of the cultural sites within the project and have not taken reasonable steps to do so.
4 Moreover, people with information and who are familiar with sites and who can identify other
5 sites are denied the right to review the map and identify additional sites that should be added.
6 109. The EIR ties other mitigation measures to this broken foundation. Specifically,
7 the next mitigation measure provides that prior to the submittal of any building, grading, or
8 construction application to Kern County, the project proponent shall request that the Tejon
9 Mountain Village Design Review Committee provide a letter indicating whether the proposed
10 activity is located within 2,500 feet of a archaeological site. This letter will be submitted to with
11 the building, grading, or construction application. If the proposed activity is located within 2,500
12 feet of an archaeological site, County Staff shall make sure the appropriate mitigation measures
13 listed below are observed. This measure is facially defective for the reasons stated above.
14 110. Other mitigation measures are facially defective because they are only required if
15 the cultural site is one of the 58 that will be identified on TMR and TMV’s map and the
16 proposed activity is within 2,500 feet.
17 111. For certain sites known, the EIR proposes that they will be preserved under
18 existing geotextile matting and capping fill, which there is no evidence is effective.
19 112. The EIR proposes that there be Archaeological and/or Native American monitors
20 shall be present during any grubbing or topsoils grading within 100 meters of various areas, but
21 there is not any procedures for how these monitors will be selected to ensure that they are
22 qualified and to ensure that they can protect the cultural site.
23 113. The County’s actions with respect to approving this Project violated its mandatory
24 duties and obligations under CEQA and other applicable laws, and were arbitrary and capricious.
25 If Defendants are not ordered to comply with CEQA, both Plaintiffs and the archeological and
26 historic sites described above will suffer irreparable injury. Avoiding a true and legal analysis of
27 the cultural status of this property now will lead to future expense, delays and wanton destruction
28
21
1 of ancient burial sites and other sacred grounds. For these reasons, the Plaintiffs are entitled to
2 the relief prayed for below.
3 FIFTH CLAIM FOR RELIEF
4 DECLARATORY JUDGMENT -- 28 U.S.C. § 2201
5 By Plaintiffs Against Salazar and Does 91 through 100
8 115. Plaintiffs are excused from exhausting administrative remedies, if such is
9 otherwise required, because they are inadequate and futile in that there is no administrative
10 procedure whereby Plaintiffs can obtain a declaration of their rights under the Treaty or to obtain
11 and enforce the rights afforded to Plaintiffs under the Treaty. Moreover, Plaintiffs are informed
12 and believe and thereon allege that any attempt to obtain said rights will be futile as the
13 Department of the Interior has unequivocally made clear that it will not provide Plaintiffs with
14 the rights afforded under the Treaty because Plaintiffs are not listed on the list of federally
15 acknowledged Indian Tribes maintained by the BIA.
16 116. Plaintiffs will suffer irreparable injury if the Court does not afford the relief
17 requested because Plaintiffs have been and continued to be deprived of their treaty rights and
18 Defendants are poised to begin development on Plaintiffs lands and thereby disturb and
19 potentially destroy sacred sites, and damage and potentially destroy cultural objects.
20 117. Accordingly, Plaintiffs request the following judicial declarations:
21 a. Plaintiffs are the descendents of the signatories from the Treaty of the
22 Utahs and are a tribe entitled to the benefits of the Treaty. See Greene v. Babbitt, 64 F.3d
23 1266, 1270 (9th Cir. Wash. 1995) (“a tribe's recognition or lack of recognition by the
24 Secretary of the Interior does not determine whether the tribe has vested treaty rights. . . .
25 Whether a group of citizens of Indian ancestry is descended from a treaty signatory and
26 has maintained an organized tribal structure is a factual question which a district court is
27 competent to determine.”).
28
22
1 b. The respective rights and obligations of the Kawaiisu and the United
2 States under the Treaty of the Utahs.
3 c. That the Kawaiisu have a trust relationship with the United States by
4 virtue of the Treaty of the Utahs, the act of Congress and the Executive Order creating
5 the Tejon/Sebastian Reservation and the Non-Intercourse Act.
6 d. That by virtue of the trust relationship, the United States has a duty to
7 bring an action on behalf of the tribe against Defendants TRC and TMV to protect
8 Plaintiffs’ aboriginal title.
9 e. That by virtue of the trust relationship, the United States has a duty to
10 ensure Plaintiffs access and possession to the Tejon/Sebastian Reservation and to prevent
11 others from trespassing thereon.
12 PRAYER FOR RELIEF
13 WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:
14 On the First Claim for Relief:
15 1. That the Court decree, declare, and adjudge that the Tribe is the owner of and
16 have the legal and equitable title and right of possession of lands surveyed for the 1853
17 Tejon/Sebastian Reservation, and restore the Tribe to immediate possession;
18 2. For an accounting of all rents, issues and profits;
19 3. For damages in an amount to be determined at trial;
20 4. For preliminary and permanent injunctive relief barring Defendants from the land
21 without Plaintiffs permission and barring Defendants from interfering with Plaintiffs possession
22 and enjoyment of the land.
23 On the Second Claim for Relief:
24 1. For a preliminary and permanent injunction stopping the TMV project until
25 adequate procedures are in place to ensure compliance with NAGPRA;
26 2. For such other orders as may be necessary to enforce the provisions of NAGPRA
27 and to remedy the past violations.
28
23
1 On the Third Claim for Relief:
2 1. For declaratory and injunctive relief.
3 On the Fourth Claim for Relief:
4 1. For a peremptory writ of mandate or declaratory and injunctive relief directing
5 Defendants to:
6 a. Void, vacate, and set aside their approval of the TMV Project;
7 b. To suspend all activities pursuant to or relating to implementation of the
8 TMV Project;
9 c. To consult with Plaintiffs as required by the law regarding the proposed
10 TMV Project; prepare, circulate, and consider a legally adequate subsequent EIR;
11 d. To prepare, circulate, and consider a legally adequate subsequent EIR;
12 e. For preliminary and permanent injunctive relief prohibiting Respondents
13 from taking any further action in connection with the TMV Project pending trial in this
14 matter;
15 On the Fifth Claim for Relief:
16 1. For declaratory judgment as previously identified.
17 On All Claims for Relief:
18 1. Costs of suit;
19 2. Attorney’s fees as allowed by law, and;
20 3. Such other relief as the court may deem just and proper.
21
WOLF GROUP L.A.
22
23
Dated: April 18, 2011 By: /s/ Evan W. Granowitz
24 Evan W. Granowitz
25 KAWAIISU TRIBE OF TEJON and
DAVID LAUGHING HORSE ROBINSON
26
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24
1 DEMAND FOR JURY TRIAL
2 Plaintiffs demand a trial by jury for all claims on which they have such a right.
3
4
WOLF GROUP L.A.
5
6
Dated: April 18, 2011 By: /s/ Evan W. Granowitz
7 Evan W. Granowitz
8 KAWAIISU TRIBE OF TEJON and
DAVID LAUGHING HORSE ROBINSON
9
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Case 1:09-cv-01977-OWW-SMS Document 133-1 Filed 04/18/11 Page 1 of 11
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA
Kawaiisu Tribe of Tejon v. Salazar
Case No: 1:09-cv-01977 OWW SMS
EXHIBITS TO PLAINTIFFS’ SECOND

AMENDED COMPLAINT
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kuts name). Kawishm.-Kroeber. inf'n. - ; Y
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Exhibit # 9 -- Approximate Boundaries of Tejon/Sebastian Reservation on Modern Map

Kawaiisu Tribe of Tejon V Department of Interior Second Amended Complaint 4-18-2011

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Kawaiisu Tribe of Tejon V Department of Interior Second Amended Complaint 4-18-2011

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Case 1:09-cv-01977-OWW-SMS Document 133 Filed 04/18/11 Page 1 of 25

1 Evan W. Granowitz (Cal. Bar No. 234031)

5 Christopher K. King (Ariz. Bar No. 026966)

8 David R. Mugridge (Cal Bar No. 123389)

12 UNITED STATES DISTRICT COURT

13 EASTERN DISTRICT OF CALIFORNIA

2 ROBINSON (“Robinson”) allege as follows:

9 first amended complaint (FAC) on August 15, 2010. (Doc # 70).

13 law and to re-allege certain claims, but not others.

15 3. Plaintiff THE KAWAIISU TRIBE OF TEJON (hereinafter “Tribe”) is an Indian

22 4. Plaintiff DAVID LAUGHING HORSE ROBINSON (“Robinson”), is the

23 Chairman of THE KAWAIISU TRIBE OF TEJON.

4 7. Defendant COUNTY OF KERN, CALIFORNIA (“County”), is the Lead Agency

6 8. Defendant TEJON MOUNTAIN VILLAGE, LLC (“TMV”), is a Delaware

12 complaint. TMV’s position is adverse to the Tribe.

13 9. Defendant TEJON RANCH CORPORATION (“TRC”), is a Delaware

19 TRC’s position is adverse to the Tribe.

4 the remaining Defendants.

5 JURISDICTION AND VENUE

9 U.S.C. §1391 (b)(2).

12 exceeds $100,000 exclusive of interest and costs.

21 A. THE KAWAIISU PEOPLE AND THEIR LANDS

26 Kahwissah, Kawiasuh, Kawishm, Kowasah, Kubakhye, Newooah, Noches Colteches,

4 Nochi, and Nochis.

8 Senate on September 9, 1850. 9 Stat. 984.

18 27. On September 30, 1853, California Indian Superintendent Edward F. Beale

19 communicated to Commissioner of Indian Affairs, George W. Manypenny, that he had

24 AMERICAN ETHNOLOGY TO THE SECRETARY OF THE SMITHSONIAN INSTITUTION, 1896-1897:

4 reservation was known and acknowledged in 1877. (Ex.6).

19 otherwise.” Solem v. Bartlett 465 U.S. 463, 470 (1984).

7 affected by such regulation).

10 importance of provisioning for their continued needs and sustenance.

17 TERMINATION OF INDIAN BUREAU ACTIVITIES IN THE STATE OF CALIFORNIA, prepared by

2 property at issue was Indian country presented a federal question).

4 B. DESCRIPTION OF PLAINTIFFS’ ABORIGINAL TITLE

14 Beginning at the South 1/4 Corner of Projected Section 36 Township 32 South,

19 C. THE TEJON MOUNTAIN VILLAGE PROJECT

20 36. Between 2001-2005, Defendants TMR and/or TMV submitted development

8 identified in paragraph 35.

15 requirements (California Environmental Quality Act § 15064.5(d); NEPA, 42 U.S.C. §4321-

22 respect to these sites.

5 with the protection of cultural resources in the area.4

13 Commission or Board of Supervisors could vote on the project.

16 and to express concerns over gravesites.

20 there was no need to include it in the EIR.

2 any associated archeological materials.

4 the cultural sites had been evaluated.

6 Village project on October 13, 2009.

7 FIRST CLAIM FOR RELIEF

8 CLAIM FOR UNLAWFUL POSSESION UNDER COMMON LAW, VIOLATION OF

9 NON-INTERCOURSE ACT, TRESSPASS, ACCOUNTING

10 By Plaintiffs Against Defendants Tejon Ranch Corporation,

11 Tejon Mountain Village and Does 1 through 50

13 paragraphs 1 through 51 above as though fully set forth at length.

22 in violation of common law and the Non-Intercourse Act.

25 entire period of its dispossession.

26 57. As a further result of Defendants’ unlawful possession, Plaintiffs have been

3 the entire period of their dispossession.

7 and have been unjustly enriched thereby.

8 60. Accordingly, Plaintiffs are entitled to the relief specified below.

9 SECOND CLAIM FOR RELIEF

10 VIOLATIONS OF NAGPRA, 25 U.S.C. § 3001, et seq.

11 By Plaintiffs Against Defendants Tejon Ranch Corporation,