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Robinson V. Salazar 3Rd Amended Complaint

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Case 1:09-cv-01977-BAM Document 211 Filed 03/19/12 Page 1 of 125 1 Evan W. Granowitz (Cal. Bar No. 234031) WOLF GROUP L.A. 2 11400 W Olympic Blvd., Suite 200 Los Angeles, California 90064 3 Telephone: (310) 460-3528 Facsimile: (310) 457-9087 4 Email: [email protected] 5 David R. Mugridge (Cal. Bar No. 123389) 6 LAW OFFICES OF DAVID R. MUGRIDGE 2100 Tulare St., Suite 505 7 Fresno, California 93721-2111 Telephone: (559) 264-2688 8 Facsimile: (559) 264-2683 9 Attorneys for Plaintiffs Kawaiisu Tribe of Tejon and David Laughing Horse Robinson 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 KAWAIISU TRIBE OF TEJON, and Case No.: 1:09-cv-01977 BAM DAVID LAUGHING HORSE ROBINSON, an 14 individual and Chairman, Kawaiisu Tribe of PLAINTIFFS’ THIRD AMENDED 15 Tejon, COMPLAINT FOR: 16 Plaintiffs, (1) UNLAWFUL POSSESSION, etc. 17 vs. (2) EQUITABLE 18 KEN SALAZAR, in his official capacity as ENFORCEMENT OF TREATY 19 Secretary of the United States Department of the Interior; TEJON RANCH CORPORATION, a (3) VIOLATION OF NAGPRA; 20 Delaware corporation; TEJON MOUNTAIN VILLAGE, LLC, a Delaware company; COUNTY (4) DEPRIVATION OF PROPERTY 21 OF KERN, CALIFORNIA; TEJON IN VIOLATION OF THE 5th RANCHCORP, a California corporation, and AMENDMENT; 22 DOES 2 through 100, inclusive, (5) BREACH OF FIDUCIARY 23 Defendants. DUTY; 24 (6) NON-STATUTORY REVIEW; and 25 (7) DENIAL OF EQUAL 26 PROTECTION IN VIOLATION OF THE 5th AMENDMENT. 27 DEMAND FOR JURY TRIAL 28 1 PLAINTIFFS’ THIRD AMENDED COMPLAINT Case 1:09-cv-01977-BAM Document 211 Filed 03/19/12 Page 2 of 125 1 Plaintiffs KAWAIISU TRIBE OF TEJON and DAVID LAUGHING HORSE ROBINSON 2 allege as follows: 3 I. INTRODUCTION 4 1. Plaintiffs bring this lawsuit to vindicate their rights to land and to protect the 5 graves of their ancestors and other cultural items on this land, that the United States guaranteed 6 their right to occupy and use pursuant to the 1849 Treaty with the Utahs and by establishing the 7 Tejon Indian Reservation in 1853. The Plaintiffs also bring this lawsuit to address the United 8 States’ failure to include the Kawaiisu Tribe on the list of tribal entities entitled to receive 9 services from the Federal Government and the United States’ breach of the duties owed to the 10 Kawaiisu to protect their land, including the human remains of their ancestors and other cultural 11 items on their land. 12 II. PARTIES 13 2. Plaintiff THE KAWAIISU TRIBE OF TEJON (“Tribe” or “Kawaiisu”) is an 14 Indian Tribe which resides in and around the County of Kern, California and has resided in or 15 around what is today the County of Kern, the State of California since time immemorial as more 16 fully described below. The Tribe is recognized by the State of California and its citizens are 17 located in Kern County, California. The Tribe and its citizens descend from signatories to of the 18 1849 Treaty with the Utahs and the Utah Tribes of Indians that are recognized by the government 19 of the United States in that Treaty. In addition, the Tribe descends from those Indians for whom 20 the 1853 Tejon/Sebastian Indian Reservation was created. The citizens of the Tribe are not now 21 nor have they ever been “Mission Indians.” The Tribe is not currently on the list of “Indian 22 Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian 23 Affairs” maintained by the Bureau of Indian Affairs pursuant to 25 C.F.R. § 83, et seq. 24 However, the Tribe is a federally recognized tribe by virtue of, inter alia, descending from 25 signatories to of the 1849 Treaty with the Utahs and the Utah Tribes of Indians, although the 26 Federal Government has failed to treat it as such. 27 28 2 PLAINTIFFS’ THIRD AMENDED COMPLAINT Case 1:09-cv-01977-BAM Document 211 Filed 03/19/12 Page 3 of 125 1 3. Plaintiff DAVID LAUGHING HORSE ROBINSON (“Robinson”), is an 2 individual residing in Kern County, California and is the duly elected Chairman of THE 3 KAWAIISU TRIBE OF TEJON. 4 4. Defendant KEN SALAZAR (“Salazar”) is the Secretary of the United States 5 Department of the Interior and is named herein in his official capacity. Salazar will also be 6 referred to herein as “Department” or “Interior.” Plaintiffs are informed and believe and thereon 7 allege, pursuant to 25 U.S.C. § 2, Interior has been delegated “the management of all Indian 8 affairs and of all matters arising out of Indian relations” on behalf of the United States. 9 Plaintiffs are informed and believe and thereon allege, Interior, through its Bureau of Indian 10 Affairs (“BIA”), is the agency charged with a trust responsibility over the welfare of federally 11 recognized Native Americans. 12 5. Defendant COUNTY OF KERN, CALIFORNIA (“County”), is the Project Lead 13 Agency for State Clearing House Project #2005101018 called Tejon Mountain Village. 14 6. Defendant TEJON MOUNTAIN VILLAGE, LLC (“TMV”), is a Delaware 15 limited liability company, with its principal place of business in the County of Kern, California. 16 TMV is a privately held corporation seeking to develop real property in Kern County, CA. 17 Plaintiffs are informed and believe and thereon allege that TMV is in possession of, assert an 18 interest in, or claim a title of record to certain lands in Kern County, California, which are a 19 portion of the reservation, and aboriginal lands of the Tribe, as appears more fully elsewhere in 20 this complaint, adversely to the Tribe. 21 7. Defendant TEJON RANCH CORPORATION (“TRC”), is a Delaware 22 corporation with its principal place of business in Kern County, California. Plaintiffs are 23 informed and believe and thereon allege that TRC is the parent corporation of TMV. Plaintiffs 24 are informed and believe and thereon allege that TRC is in possession of, assert an interest in, or 25 claim a title of record to certain lands in Kern County, California, which are a portion of the 26 reservation, and aboriginal lands of the Tribe, as appears more fully elsewhere in this complaint, 27 adversely to the Tribe. 28 3 PLAINTIFFS’ THIRD AMENDED COMPLAINT Case 1:09-cv-01977-BAM Document 211 Filed 03/19/12 Page 4 of 125 1 8. Defendant TEJON RANCHCORP (“TR”), is a California corporation with its 2 principal place of business in Kern County, California. Plaintiffs are informed and believe and 3 thereon allege that TR is the parent corporation of TRC. Plaintiffs are informed and believe and 4 thereon allege that TR is in possession of, assert an interest in, or claim a title of record to certain 5 lands in Kern County, California, which are a portion of the reservation, and aboriginal lands of 6 the Tribe, as appears more fully elsewhere in this complaint, adversely to the Tribe. 7 9. Defendants TMV, TRC and TR are collectively referred to herein as the “Tejon 8 Defendants.” 9 10. The true names and capacities, whether individual, partner, associate, corporate or 10 otherwise, of Defendants identified as DOES 2 through 100, inclusive, are unknown to Plaintiffs 11 who therefore sue them by such fictitious names. Plaintiffs are informed and believe and, on that 12 basis, allege that each of the Defendants sued herein as a DOE Defendant was, and is, in some 13 manner legally responsible for the events herein mentioned. Plaintiffs will seek leave of Court to 14 amend this Complaint if, and at such time as their true names and capacities are ascertained. 15 11. Plaintiffs are informed and believe and, on that basis, allege that at all times 16 herein mentioned, Defendants, and each of them, were the agents, employees, servants, and 17 representatives of each of the remaining Defendants, and in doing or failing to do the acts herein 18 alleged, were acting in the course and scope of their authority as agents, employees, servants and 19 representatives, and acted or failed to act, with the permission, consent and ratification of each of 20 the remaining Defendants. 21 III. JURISDICTION AND VENUE 22 12. Venue properly lies in the Eastern District of California because a substantial part 23 of the events which give rise to Plaintiff’s claims occurred within the district. The real property 24 at issue, in Kern County, California, also lies within the district. 28 U.S.C. § 1391 (b)(2). 25 13. Jurisdiction over this action is conferred by 28 U.S.C. §§ 1331, 1337 and 25 26 U.S.C. § 3013. The amount in controversy exceeds $100,000 exclusive of interest and costs. 27 28 4 PLAINTIFFS’ THIRD AMENDED COMPLAINT Case 1:09-cv-01977-BAM Document 211 Filed 03/19/12 Page 5 of 125 1 14. Plaintiffs claim for relief arises under, inter alia, the federal restriction against the 2 extinguishment of title to the land of Indian Tribes or of the right of occupancy of the said Indian 3 Tribes, except by action of the United States, under Article 1, Section 8 of the Constitution of the 4 United States, the Indian Non-Intercourse Act, 25 U.S.C. § 177, and under common law. 5 IV. BACKGROUND AND FACTS 6 A. The Kawaiisu Tribe And Its Leadership 7 15. The Tribe presently consists of a community of approximately 500 enrolled 8 citizens. The citizens of the Tribe are Native American and are all related by blood or adoption. 9 The citizens of the Tribe, except in the case of adoption, all are descendants of the leaders of the 10 Kawaiisu Tribe that signed the Treaty with the Utahs in 1849 or other Kawaiisu who were part of 11 the Tribe in 1849.
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