David Robinson v. Sally Jewell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LAUGHING HORSE ROBINSON, No. 12-17151
an individual and Chairman,
Kawaiisu Tribe of Tejon; D.C. No.
KAWAIISU TRIBE OF TEJON, 1:09-cv-01977-
Plaintiffs-Appellants, BAM
v.
OPINION
SALLY JEWELL, Secretary, U.S.
Department of the Interior;
TEJON MOUNTAIN VILLAGE, LLC;
COUNTY OF KERN; TEJON RANCH
CORPORATION; TEJON RANCHCORP,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Argued and Submitted
November 20, 2014—San Francisco, California
Filed June 22, 2015
Before: Sidney R. Thomas, Chief Judge, and Stephen
Reinhardt and Morgan Christen, Circuit Judges.
Opinion by Chief Judge Thomas
2 ROBINSON V. JEWELL
SUMMARY*
Tribal Land Rights
The panel affirmed the district court’s dismissal of the
claims of the Kawaiisu, a non-federally recognized Native
American group, and its elected chairperson, David Laughing
Horse Robinson, asserting title to the Tejon Ranch, one of the
largest continuous expanses of private land in California.
The panel held that the district court properly determined
that the Tribe had no ownership interest in the Tejon Ranch
and that no reservation was established. Specifically, the
panel held that the district court correctly concluded that the
Tribe’s failure to present a claim to the Board of
Commissioners created by the California Land Claims Act of
1851 extinguished its title; that the Treaty with the Utah did
not convey land rights to the signatory tribes or recognize
aboriginal title; and that Treaty D was never ratified and
conveyed no rights. The panel rejected the Tribe’s
complaints of alleged forgery and deception in obtaining
patents for the four Mexican land grants comprising Tejon
Ranch because all of the alleged acts occurred prior to the
submission of the claims to the Board of Commissioners, and
the Tribe could not challenge the validity of land patents after
more than a century of time had passed.
The panel held that the claims against Kern County were
subsumed into the Tejon Ranch ownership determination.
The panel further held that the Tribe’s claims originally
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROBINSON V. JEWELL 3
asserted against the Secretary of the United States
Department of the Interior, and Robinson’s individual claims,
were waived for failure to assert them on appeal. The panel
declined to consider the Tribe’s new arguments on appeal.
COUNSEL
Jeffrey M. Schwartz (argued), Schwartz Law, P.C., San
Clemente, California, for Plaintiffs-Appellants.
Tamara N. Rountree (argued), Barbara M. R. Marvin, and
William Lazarus, Attorneys, United States Department of
Justice, Environment & Natural Resources Division,
Appellate Section, Washington, D. C., Defendant-Appellee
Secretary of Interior.
Eric D. Miller (argued), Perkins Coie LLP, Seattle,
Washington; Jennifer A. MacLean, Benjamin S. Sharp, and
Elisabeth C. Frost, Perkins Coie LLP, Washington D.C., for
Defendants-Appellees Tejon Mountain Village, LLC, Tejon
Ranch Corporation, and Tejon Ranchcorp.
Charles F. Collins (argued) and Theresa A. Goldner, Kern
County Administrative Center, Bakersfield, California, for
Defendant-Appellee Kern County.
4 ROBINSON V. JEWELL
OPINION
THOMAS, Chief Judge:
In this appeal, the Kawaiisu, a non-federally recognized
Native American group indigenous to the Tehachapi
Mountains and the Southern Sierra Nevada (“the Tribe” or
“the Kawaiisu”), and its elected chairperson, David Laughing
Horse Robinson, appeal the dismissal of their claims asserting
title to the Tejon Ranch, one of the largest continuous
expanses of private land in California. We review de novo a
district court’s order granting a motion to dismiss for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), Manzarek v. St. Paul Fire & Marine Ins., Co.,
519 F.3d 1025, 1030 (9th Cir. 2008), and we affirm the
judgment of the district court.
I
As with most land disputes of this type, historical
perspective is important in resolving the claims. During first
the Spanish and then the Mexican occupations of what is now
California, those governments encouraged settlement by
issuing large land grants in the territory. At the conclusion of
the Mexican-American War in 1848, the United States
acquired California from Mexico through the Treaty of
Guadalupe Hidalgo. The treaty promised to honor Spanish
and Mexican land grants. Treaty of Peace, Friendship,
Limits, and Settlement between the United States of America
and the Mexican Republic art. VIII–IX, Feb. 2, 1848, 9 Stat.
922 (“Treaty of Guadalupe Hidalgo”).
ROBINSON V. JEWELL 5
The discovery of gold in California just eight days
prior to the signing of the treaty, and the subsequent,
unprecedented influx of settlers to the territory, placed a great
deal of pressure on land claims. To resolve disputes over the
validity of private title to land, Congress passed the Act of
March 3, 1851, ch. 41, 9 Stat. 631 (“Act of 1851”),
commonly known as the California Land Claims Act of 1851.
The Act created a Board of Commissioners (“Commission”)
to evaluate claims and required that anyone claiming title
derived from a Mexican or Spanish grant present a claim to
the Commission within two years. Id. § 8. Any land not
claimed within that period, or for which a claim was rejected,
would be returned to “the public domain of the United
States.” Id. § 13.
No Indian groups, including the predecessors to the
Kawaiisu, registered claims with the Commission during the
two-year period. In addition, the United States Senate
refused to ratify any of the eighteen treaties negotiated with
California tribes between 1851 and 1852, a decision that was
sealed until 1905. William C. Sturtevant, HANDBOOK OF
NORTH AMERICAN INDIANS: CALIFORNIA 702–03 (1978).
Following the cessation of hostilities with Mexico and the
signing of the Treaty of Guadalupe Hidalgo, the United States
entered into and ratified a treaty with an array of western
Native American leaders collectively referred to as “the
Utah.” The Treaty with the Utah, signed in 1849 in Santa Fe,
New Mexico, provided for an end to hostilities between the
Utah tribes and the United States and stipulated that the Utahs
accept and submit to the jurisdiction of the United States.
Further, it stated:
6 ROBINSON V. JEWELL
[The United States] shall, at its earliest
convenience, designate, settle, and adjust their
territorial boundaries . . . . [a]nd the said
Utahs, further, bind themselves not to depart
from their accustomed homes or localities
unless specially permitted . . . and so soon as
their boundaries are distinctly defined, the
said Utahs are further bound to confine
themselves to said limits, under pueblos, or to
settle in such other manner as will enable
them most successfully to cultivate the soil,
and pursue such other industrial pursuits as
will best promote their happiness and
prosperity: and they now deliberately and
considerately, pledge their existence as a
distinct tribe, to abstain, for all time to come,
from all depredations; to cease the roving and
rambling habits which have hitherto marked
them as a people; to confine themselves
strictly to the limits which may be assigned
them; and to support themselves by their own
industry, aided and directed as it may be by
the wisdom, justice, and humanity of the
American people.
Treaty with the Utah, Dec. 30, 1849, art. VII, 9 Stat. 984.
The Kawaiisu allege that several of its leaders, including its
head chief at the time, Acaguate Nochi, were among the
signatories to the treaty.
The Kawaiisu identify themselves as “an Indian Tribe that
has resided in and around Kern County, California since time
immemorial.” Plaintiff Robinson traces his lineage through
multiple previous head chiefs of the Kawaiisu back to
ROBINSON V. JEWELL 7
Acaguate Nochi. The Kawaiisu are not currently, and have
never been, included on the official list of federally
recognized tribes maintained by the Bureau of Indian Affairs
at the Department of the Interior.
According to the Tribe’s complaint, the Kawaiisu first
appeared in the historical record in the 1776 diary of Father
Francisco Garces. Father Garces’ map of the following year
notes the Tribe’s presence according to a number of its
historic names. While the name Kawaiisu derives
linguistically from a tribe to the north in San Joaquin Valley,
the Tribe identifies as “one of the ancient Great Basin
Shoshone Paiute Tribes whose pre-European territory
extended from Utah to the Pacific Ocean.” The Kawaiisu’s
complaint lists an array of ethnographic accounts
documenting its unique tribal identity, including the Bureau
of American Ethnology’s 1907 Handbook of American
Indians North of Mexico.
In 1851—two years after the signing of the Treaty with
the Utah and just a few months after the California Land
Claims Act of 1851 went into effect—the United States
executed a treaty with “various tribes of Indians in the State
of California” in which the tribes agreed to cede large
portions of land and the federal government promised to set
aside reservations “for the sole use and occupancy” of the
tribes and supply the Indians with goods and services,
including schools. This treaty, known as “Treaty D,” was
submitted to Congress but never ratified by the Senate.1
1
In 1927, the California legislature passed a statute authorizing the
California Attorney General to bring suit on behalf of the tribes who were
party to Treaty D and seventeen other unratified treaties. On May 18,
1928, Congress passed The Indians of California Act, 25 U.S.C. § 651,
8 ROBINSON V. JEWELL
In the absence of any ratified treaties with the Indians of
California, the establishment of reservations in the state could
only result from an act of Congress or from the President
acting under delegation from Congress. Three acts of
Congress—taking place in 1853, 1855, and 1864—are
relevant here. The Act of 1853 authorized the President to
create five “military reservations” no more than 25,000 acres
in size in the state of California or the territories of Utah and
New Mexico. Act of March 3, 1853, ch. 104, 10 Stat. 226,
238. In 1855, Congress amended the Act of 1853 to provide
funding and authorization for two additional reservations.
Act of March 3, 1855, 10 Stat. 699.
During the period prior to 1864, the President appears to
have only officially created three reservations in California.
Mattz v. Arnett, 412 U.S. 481, 489 (1973) (“At the time of the
passage of the 1864 Act there were, apparently, three
reservations in California: the Klamath River, the Mendocino,
and the Smith River.”). The Tribe alleges that the
Tejon/Sebastian Reservation was created pursuant to the Act
of 1853, pointing to a letter from President Franklin Pierce to
the Secretary of the Interior, Robert McClelland, and a
subsequent letter from the Secretary to the Superintendent of
Indian Affairs for California, Edward F. Beale, from that
same year.
which granted jurisdiction to the Court of Claims to hear these cases. Earl
Warren, representing “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,” Indians of California by Webb v.
United States, 98 Ct. Cl. 583, 585 (Ct. Cl. 1942), negotiated a
$5,024,842.34 judgment in favor of the Indians. See Round Valley Indian
Tribes v. United States, 97 Fed. Cl. 500, 504 (Fed. Cl. 2011).
ROBINSON V. JEWELL 9
After quoting the paragraph of the 1853 Act authorizing
creation of five reservations, President Pierce’s letter states,
“In the exercise of discretion vested in me by said act of
Congress, I have examined and hereby approve the plan
therein proposed for the protection of the Indians in
California, and request that you will take the necessary steps
for carrying the same into effect.” Secretary McClelland’s
letter to Superintendent Beale repeats the language from the
Act of 1853 and then states that:
The President of the United States has
examined and approved the plan provided for
in said act, and directs that you be charged
with the duty of carrying it into effect. For
this purpose you will repair to California
without delay, and by the most expeditious
route. The selections of the military
reservations are to be made by you in
conjunction with the military commandant in
California, or such officer as may be detailed
for that purpose, in which case they must be
sanctioned by the commandant. It is likewise
the President’s desire that, in all other matters
connected with the execution of this “plan,”
you will, as far as may be practicable, act in
concert with the commanding officer of that
military department.
However, no Presidential proclamation or executive order
was ever issued regarding the Tejon or Sebastian Reservation.
In 1864, Congress significantly reorganized management
of reservations in California. The Act of 1864 consolidated
California as one Indian superintendency, empowered the
10 ROBINSON V. JEWELL
President to create no more than four reservations, and
required that lands not retained as reservations under the Act
be offered for public sale. Act of Apr. 8, 1864, ch. 40, 48, 13
Stat. 39. The President eventually established four
reservations by executive order. The Tejon/Sebastian
Reservation was not among them.
The land at issue in the case—the 270,000 acres
comprising Tejon Ranch and the 49,000 of those acres
referred to as the Tejon or Sebastian Reservation—is made up
of portions of four different Mexican land grants: Rancho El
Tejon, Rancho los Alamos y Agua Caliente, Rancho Castac,
and Rancho La Liebre. The various holders of those four
grants submitted claims pursuant to the Act of 1851, all of
which were confirmed by the Commission, which issued
patents for the claims between 1863 and 1875. The rights to
all four of these grants were acquired by Edward F. Beale
between 1855 and 1866. Defendants Tejon Mountain
Village, LLC, Tejon Ranch Corporation, and Tejon
Ranchcorp (collectively, “Tejon Ranch Defendants”)
ultimately acquired title through transactions traceable to the
patents. The Tejon Ranch Defendants propose a 3,450-home
development named Tejon Mountain Village on the Tejon
Ranch.
The Tribe filed this action asserting title under a variety
of theories ultimately asserting four claims against the
ROBINSON V. JEWELL 11
Secretary of Interior,2 two against the Tejon Ranch
Defendants,3 and one against Kern County, California.4
After dismissing two complaints with leave to amend, the
district court dismissed the complaint with prejudice.
II
The Tribe has waived appeal of its claims against the
Secretary by failing to “present a specific, cogent argument
for our consideration.” Greenwood v. FAA, 28 F.3d 971, 977
(9th Cir. 1994); see also Fed. R. App. P. 28(a)(8)(A)
(requiring that an appellant’s brief must contain an argument
section which includes their “contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies”).
2
The Tribe’s claims against the Secretary are (1) deprivation of property
without due process in violation of the Fifth Amendment by wrongfully
omitting the Tribe from the list of federally recognized tribes and failing
to correct that omission; (2) breach of fiduciary duty by not intervening on
the Tribe’s behalf to stop the proposed development of Tejon Mountain
Village; (3) denial of equal protection in violation of the Fifth Amendment
by extending benefits to other tribal groups while failing to recognize the
Tribe; and (4) non-statutory review of the Secretary’s failure to recognize
the Tribe, based on federal recognition by virtue of the Act of Congress
ratifying the 1849 Treaty with the Utah.
3
The Tribe’s claims against the Tejon parties include unlawful
possession of Tejon Ranch, trespass, violation of NAGPRA, and violation
of the Non-Intercourse Act.
4
The Tribe’s sole claim against Kern County is for equitable
enforcement of treaty—essentially forcing the County to revoke its
approval of permits for the development of Tejon Mountain Village.
12 ROBINSON V. JEWELL
On appeal, the Tribe asserts a new theory of estoppel
against the Secretary and suggests that the United States
violated its trust responsibility by failing to present or
preserve the Tribe’s claims before the Commission. Neither
theory was presented to the district court. We decline to
consider arguments raised for the first time on appeal. Raich
v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2007).
III
A
The Tribe claims ownership to the Tejon Ranch as against
the Tejon Ranch Defendants on its alleged receipt of a
Spanish land grant, its rights under the 1849 Treaty with the
Utah, and its negotiation of Treaty D with the federal
government. However, the district court correctly concluded
that the Tribe’s failure to present a claim to the Commission
pursuant to the California Land Claims Act of 1851
extinguished its title, that the Treaty with the Utah did not
convey land rights to the signatory tribes or recognize
aboriginal title, and that Treaty D was never ratified and
conveyed no rights.
The Tribe asserts that “[i]n 1777, the Spanish government
granted the Kawaiisu land in what would become the State of
California.” The only support for this assertion is its alleged
presence on Diseno Maps from that year created by Father
Francisco Garces.5 Even assuming that the Kawaiisu
5
We note, however, that in its Second Amended Complaint, and in the
Tribe’s opposition to the Tejon Ranch Defendants’ motion to dismiss the
Third Amended Complaint, the Tribe argued that its land rights explicitly
do not derive from any Spanish or Mexican grant.
ROBINSON V. JEWELL 13
possessed such a grant, the terms of the Treaty of Guadalupe
Hidalgo alone were insufficient to preserve it. The Land
Claims Act of 1851 required that “each and every person
claiming lands in California by virtue of any right or title
derived from the Spanish or Mexican government, shall
present the same to the said commissioners . . . .” 9 Stat. 631,
§ 8. Presentation to the Commission was the only avenue
allowed by the Act for preservation of claims and the
issuance of a patent. Section 13 of the Act provides that “all
lands the claims to which shall not have been presented to the
said commissioners within two years after the date of this act,
shall be deemed, held and considered as part of the public
domain of the United States.” Id. § 13. The Tribe concedes
that it did not present any claims to the Commission within
the statutory time frame.
The Tribe claims land rights were bestowed by the
subsequent Treaty with the Utah, or, alternatively, argues that
its participation in Treaty D constituted substantial
compliance with the Act of 1851. Neither argument is
persuasive.
The Treaty with the Utah did not grant the Tribe title to
Tejon Ranch, nor did it recognize aboriginal title of any of the
signatory tribes, including the Kawaiisu. Aboriginal title
“means mere possession not specifically recognized as
ownership by Congress.” Tee-Hit-Ton Indians v. United
States, 348 U.S. 272, 279 (1955). Absent such recognition by
Congress, aboriginal right of occupancy can be terminated by
the sovereign at any time “without any legally enforceable
obligation to compensate the Indians.” Id. Recognition of
aboriginal title requires a clear statement from Congress
unequivocally granting legal rights. See Uintah Ute Indians
of Utah v. United States, 28 Fed. Cl. 768, 786 (Fed. Cl. 1993)
14 ROBINSON V. JEWELL
(“Recognition of Indian title may take various forms, but such
recognition must manifest a definite intention to accord legal
rights.”). “The Congress must affirmatively intend to grant
the right to occupy and use the land permanently. By
‘recognition,’ the courts have meant that Congress intended
to acknowledge . . . to Indian tribes rights in land which were
in addition to the Indians’ traditional use and occupancy
rights exercised only with the permission of the sovereign.”
Sac & Fox Tribe v. United States, 315 F.2d 896, 900 (Ct. Cl.
1963) (internal quotation marks and citation omitted).
The question of whether the Treaty with the Utah created
any enforceable property rights has been addressed by the
Court of Federal Claims, which determined in 1993 that the
1849 treaty did not recognize Indian title. Uintah Ute
Indians, 28 Fed. Cl. at 786. As that court observed, “Article
VII of the 1849 treaty 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 plaintiff; it leaves
such matters to the future. Consequently, the treaty cannot be
said to recognize Indian title.”
The district court correctly adopted the reasoning of
Uintah Ute Indians. By referring to “limits which may be
assigned [the Utahs]” that they would be “bound to confine
themself to,” the Treaty’s language indicates that any rights
to the land the Indians occupied at the time of its execution
were not recognized by the United States government. Treaty
with the Utah, art. VII. We cannot assume that Congress
would have intended through its ratification of the Treaty
with the Utah to grant title to the vast, then-indeterminate
expanses of land occupied by the various signatory tribes.
The Treaty’s language points to its aims of promoting
ROBINSON V. JEWELL 15
peaceful relations and encouraging the Indians to adopt a
more geographically constrained agrarian mode of living.
Id.6
Treaty D, executed in 1851 by the Kawaiisu and the
United States, was never ratified by the Senate and thus
carries no legal effect. See U.S. Const. Art. II, § 2, cl. 2. The
treaty itself contained language to that effect, stating that it
would “be binding on the contracting parties when ratified
and confirmed by the President and Senate of the United
States of America.” The Kawaiisu argue that through its
participation in Treaty D, the Tribe “substantially complied”
with the Act of 1851 and thus perfected title tracing to its
alleged Spanish land grant or the Treaty with the Utah. This
argument also fails. The Act of 1851 provides for no
alternative to presenting one’s claims to the Commission.
Treaty D granted no land rights, nor did it create any other
enforceable rights, as it was never ratified and is thus a legal
nullity.7 It was also insufficient for the purposes of the Act of
6
The Tribe also contends that “the district court’s interpretation of the
Treaty with the Utahs was fatally flawed because the court failed to
consider how the Kawaiisu interpreted the Treaty, as the Supreme Court
requires.” However, “[t]he interpretation of a treaty is a question of law
and not a matter of fact.” United States ex rel Chunie v. Ringrose,
788 F.2d 638, 643 n.2 (9th Cir. 1986); see also Sioux Tribe v. United
States, 205 Ct. Cl. 148, 158 (Ct. Cl. 1974) (“We have repeatedly held that
the interpretation of an Indian treaty is a question of law, not a matter of
fact.”). As in Chunie, the issue of whether the Treaty with the Utah
granted any enforceable rights is relatively settled as a matter of law.
7
The district court and Tejon Defendants point out that the Kawaiisu
were partially compensated for the failure of the United States to ratify
Treaty D. A 1942 settlement negotiated by Earl Warren, then-Attorney
General of California, obtained over five million dollars in compensation
16 ROBINSON V. JEWELL
1851’s requirement that any parties claiming title to land in
California under Spanish or Mexican grants present their
claims to the Commission.
Subsequent case law established that the Act of 1851 fully
extinguished any existing aboriginal title or unregistered land
grants. In 1901, the Supreme Court held in Barker v. Harvey,
181 U.S. 481, that even perfect title was subject to the
presentation requirement of the Act of 1851, as were claims
by Mission Indians derived from Mexican land grants. Id. at
491 (“If these Indians had any claims founded on the action
of the Mexican government they abandoned them by not
presenting them to the commission for consideration.”). The
Court further suggested that the Act itself extinguished
aboriginal title: “Surely a claimant would have little reason
for presenting to the land commission his claim to land, and
securing a confirmation of that claim, if the only result was to
transfer the naked fee to him, burdened by an Indian right of
permanent occupancy.” Id. at 492.
This construction was applied to extinguish aboriginal
title in California. Super v. Work extended the rationale to
nomadic, non-Mission Indians. See 3 F.2d 90 (D.C. Cir.
for “the Indians of California” for the federal government’s failure to
ratify eighteen treaties with Native Americans, including Treaty D. See
Indians of California by Webb v. United States, 98 Ct. Cl. 583 (Ct. Cl.
1942). This litigation was made possible by an Act of Congress in 1928
granting jurisdiction to the court of claims to hear such cases. The Indians
of California Act, 25 U.S.C. § 651. The Court of Claims determined that
the Act granted a right of action for an equitable claim, not a legal one,
“allowing all the Indians of California to recover the amount specified in
these unratified treaties, both in the value of the land promised to be set
aside and the other compensation provided.” Indians of California, 98 Ct.
Cl. at 598.
ROBINSON V. JEWELL 17
1925), aff’d per curiam, 271 U.S. 643 (1926). We declined
to create an exception to the “extensive reach” of the Act for
the indigenous occupants of the Santa Barbara Islands. See
United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 646
(9th Cir. 1986) (holding that the Treaty of Guadalupe Hidalgo
did not convert tribe’s aboriginal title into recognized title
and that its aboriginal title was extinguished by its failure to
present its claim under the Act of 1851).
The Supreme Court in United States v. Title Insurance &
Trust Co., 265 U.S. 472 (1924), applied the rule to a dispute
involving one of the very land patents at issue in this case.
Despite the condition placed on an 1843 Mexican land that
the Tejon Mission Indians would be allowed to continue to
reside there under the protection of the grantees, the Court
held that the land patent issued pursuant to the grantees’
presentation to the Commission under the Act of 1851
“passed the full title, unincumbered [sic] by any right in the
Indians” to occupy and use the lands. Id. at 482. The Court’s
opinion emphasized the especial importance of repose in
matters involving land, where titles are “purchased on the
faith of their stability.” Id. at 487 (“Doubtful questions on
subjects of this nature, when once decided, should be
considered no longer doubtful or subject to change.” (internal
quotation marks and citation omitted)).
Thus, the district court correctly concluded that the Tribe
has no cognizable ownership interest in the Tejon Ranch.
B
The Tribe also complains about numerous acts of alleged
forgery and deception on the part of Edward F. Beale and
others in obtaining patents for the four Mexican land grants
18 ROBINSON V. JEWELL
comprising Tejon Ranch. On this basis, the Tribe contends
that Tejon Ranch Defendants’ title—acquired, ultimately,
from Beale’s patents—is defective. However, all the alleged
acts occurred prior to the submission of the claims to the
Commission pursuant to the Land Claims Act of 1851. The
Commission confirmed all four of the claims, and at least one
of the patents has survived a challenge in court. See United
States v. Title Ins. & Trust Co., 288 F. 821 (9th Cir. 1923),
aff’d, 265 U.S. 472 (1924). The district court, pointing to the
value of stability identified by the Supreme Court in Title
Insurance, 265 U.S. at 484, concluded that “Plaintiffs cannot
now challenge the validity of United States issued land
patents after over a century of time has elapsed.”
IV
The Tribe also claims that it owns a 49,000-acre subset of
Tejon Ranch, known historically as the Tejon or Sebastian
Reservation (“Reservation”), alleging that a reservation
reserved to the Tribe was established pursuant to the Act of
1853. The Tribe claims that the Reservation, once
established, was never terminated and that it possesses
superior title to the parcel. The district court properly
rejected the claim.
The Tribe argues that the Reservation was created
pursuant to the Act of Congress of 1853 and that it survived
a subsequent Act of Congress of 1864. In support of its claim,
the Tribe cites two letters from the months immediately
following the passage in 1853: one from President Franklin
Pierce to Interior Secretary Robert McCelland, and a second
from Secretary McClelland to Edward F. Beale,
Superintendent of Indian Affairs for California and Nevada.
While these letters certainly establish that the President
ROBINSON V. JEWELL 19
directed his officers to execute a plan for creating
reservations in California, that plan lacks specificity and there
is no evidence that the President ever approved the creation
of the Tejon Reservation. Thus, the district court properly
concluded that it “was not a reservation established by the
President and therefore cannot provide legal rights to
plaintiffs.”
Further, any rights that the Tribe possessed were
extinguished by the Act of 1864, which superseded the Acts
of 1853 and 1855 by allowing only four reservations in
California. Shermoen v. United States, 982 F.2d 1312, 1315
(9th Cir. 1992). Mattz v. Arnett, 412 U.S. 481 (1973),
articulates a relatively high standard for Congressional
termination of an Indian reservation: “A congressional
determination to terminate [an Indian reservation] must be
expressed on the face of the Act or be clear from the
surrounding circumstances and legislative history.” Id. at
505. The district court properly rejected the Tribe’s claims of
ownership in the Reservation.
V
The Tribe’s claims against Kern County are contingent
upon the establishment of ownership in the Tejon Ranch.
Because its ownership claim fails, so do its claims against
Kern County. Robinson’s individual claims against Kern
County are waived for failure to present a “specific, cogent
argument for our consideration” on appeal. Greenwood,
28 F.3d at 977.
20 ROBINSON V. JEWELL
VI
The district court properly determined that the Tribe has
no ownership interest in the Tejon Ranch and that no
reservation was established. The claims against Kern County
are subsumed into the ownership determination. The claims
originally asserted against the Secretary, along with
Robinson’s individual claims, were waived for failure to
assert on appeal. We decline to consider the Tribe’s new
arguments on appeal. We need not reach any other issue
urged on appeal.8
AFFIRMED.
8
The Tejon Ranch Defendants and Kern County contend that we lack
jurisdiction, arguing that our Appellate Commissioner erroneously granted
the Tribe’s motion to reinstate the appeal. A motions panel of our court
has already considered, and rejected, these arguments, and we conclude
the Appellate Commissioner acted within his discretion in granting the
reinstatement motion.