Robinson v. Salazar (838 F. Supp. 2d 1006, 2012)

ORDER ON MOTIONS TO DISMISS (Doc. 136, 137, 139)

BARBARA A. McAULIFFE, United States Magistrate Judge.

Three motions to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1) and 12(b)(6) are pending before this Court: (1) motion by defendant Ken Salazar, in his capacity as the Secretary, U.S. Department of the Interior (doc. 136), (2) motion by County of Kern (doc. 137), and (3) motion by Tejón Mountain Village, LLC and Tejón Ranch Corporation (doc. 139). Plaintiffs David Laughing Horse Robinson and Kawaiisu Tribe of Tejón filed oppositions, objections, and evidentiary support to their oppositions (see Doc. 155, 161, 163). Moving parties filed reply briefs and supporting evidence. (See Doc. 168, 170-173, 175.) The parties consented to the conduct of all proceedings before the assigned Magistrate Judge. The Court conducted a hearing on the motions on December 12, 2011. Plaintiffs appeared by telephone by counsel Evan Granowitz. Defendant Ken Salazar appeared by telephone by counsel Barbara Marvin and Barbara Coen. Defendants Tejón Mountain Village, LLC and Tejón Ranch Corporation appeared by telephone by counsel Jena MacLean and Benjamin Sharp. Having considered the moving, opposition, and reply papers, including supporting evidence and objections, as well as the argument of counsel and the Court’s file, the Court issues the following order.

FACTUAL OVERVIEW

The following factual overview is taken from the Second Amended Complaint (“SAC”). The well pled factual allegations are taken as true.

A. The Plaintiffs

Plaintiff, the Kawaiisu Tribe of the Tejón (“Tribe”), is an Indian tribe which “resided in the State of California since time immemorial.” Plaintiff alleges that the Tribe “descends from signatories to of the 1849 Treaty with the Utah and the ‘Utah tribe of Indians’ that was recognized by the government of the United States in that treaty” and are descendants from the Indians for whom the 1853 Tejon/Sebastian Reservation was created. (Doc. 133, SAC ¶ 3.) The Tribe acknowledges that it is not on the list of federally recognized tribes by the Bureau of Indian Affairs. (Doc. 133 SAC ¶ 5.) The Tribe alleges it is a State recognized Indian tribe and its members are located in the County of Kern.

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

B. The Defendants

Defendant Tejón Mountain Village, LLC and Defendant Tejón Ranch Corporation are private entities which hold title or interest in 270,000 acres of land which the Tribe claims is a portion of the reservation and aboriginal lands of the Tribe. (Doc. 133 SAC ¶¶ 8-9.) These entities intent to develop “Tejón Mountain Village” with 3,450 residences, additional commercial development, including a hotel and resort facilities, a golf course and other recreational and educational facilities. (Doc. 133, SAC ¶ 36.)

Defendant County of Kern (“Kern”) was the lead agency for the land development project and ultimately approved the project after hearing and Environmental Impact Report. (Doc. 133, SAC ¶ 7.)

Defendant Ken Salazar is sued in his official capacity as Secretary of the United States Department of Interior.

C. Plaintiffs’ Claims to Land

Plaintiffs claim a right to occupy some or all of the 270,000 acres proposed for the defendants’ development. Plaintiffs’ sources of land claims include (1) aboriginal rights, which the right to occupy the land, and (2) treaty rights, which is the permissive right to occupy. Plaintiffs allege that the Tribe is entitled to its aboriginal tribal land. Plaintiffs claim that the Tribe descends from the Shoshone Paiute tribes which territory extended from Utah to the Pacific Ocean. (SAC ¶ 16.) “They have inhabited this areas from time immemorial.” The Tribe is not currently on the list of federally recognized tribes maintained by the Bureau of Indian Affairs (SAC ¶ 5), but claims to be federally recognized by virtue of, inter alia, the 1849 Treaty with the Utah entered into with the United States and that was ratified by Congress (9 Stat. 984) and by virtue of Treaty D. (Doc. 133, SAC ¶¶3, 18-23.) Plaintiffs allege to be descendants of the “signatories to the Treaty with the Utah.” (SAC 20.) The Tribe alleges that Treaty D was entered into with the United States in 1851, but which Congress did not ratify. (SAC ¶ 25). In Treaty D, the Tribe agreed to cede large portions of its land in exchange for a reservation, among other things. (SAC ¶ 25.) Plaintiffs allege that the Senate secretly neglected to ratify the treaty so that Indian land would be open for exploitation. (SAC ¶ 25.)

The Tribe also alleges that it has right to the land by virtue of its reservation. On March 3, 1853, Congress passed an Act authorizing the President to create “five military reservations for the protection of Indians” in the State of California. (SAC ¶ 26, citing 10 Stat 226.) In 1853, an Indian reservation was established by Congress for the Kawaiisu’s benefit. A reservation was established at Tejón Pass for the Tejón Indians (SAC ¶ 27), and which was resurveyed as late as 1858, on which the Kawaiisu lived at one time on 75,000 acres. The establishment of the Tejon/Sebastian Reservation was re-surveyed to 19,928 acres in 1858. (SAC ¶ 27.)

Plaintiff alleges that in 1856 California Indian Superintendent Edward F. Beale created land patents for the 270,000 acres that now comprise Tejón Ranch, all of which was with the Tribe’s aboriginal land. (SAC ¶ 28.) The Indians located on the Tejon/Sebastian Reservations were then forcibly moved to the Tule Reservation. Plaintiffs allege that defendants TRC and TMV derive their title from Superintendent Beale’s patents. Plaintiffs allege that “[t]o the extent that any title descending from Beale’s self appointed patents has deprived the Tribe of lands, which the Tribe historically occupied or lands reserved pursuant to the 1853 executive order,” the title is unlawful. (SAC ¶ 28.) Plaintiffs allege that only an act of Congress can terminate a Reservation and no act of Congress terminated the 1853 Reservation. (“The 1853 Reservation”) (SAC ¶ 29.)

Plaintiffs allege the 1853 Reservation was allotted to the Tribe. In 1880, Congress authorized the issuance of allotments from the 1853 Reservation and in 1893, 70 allotments were issued to predecessors of the Tribe. These allotments were inappropriately sold off. Nonetheless, plaintiff alleges that members of the Tribe have been present on the land from 1915 through 1945. (SAC ¶ 30.) The California Indian Agency took a roll in 1949 which found 3,384 acres of Indian trust land in Kern County and 62 Indians on the Census Roll. (SAC ¶ 32.)

Plaintiff allege alternatively their aboriginal title encompasses 270,000 acres or 49,000 acres which comprise the 1858 Survey of the Tejon/Sebastian reservation. (SAC ¶ 34-35.) Plaintiffs allege the following claims for relief:

(1) Unlawful possession under common law, Violation of Non-Intercourse Act, trespass and accounting, against TRC and TMV;

(2) Violation of the Native American Graves Protection and Repatriation Act, against TRC and TMV;

(3) Violation of Civil Rights, 42 U.S.C. § 1983 against Kern;

(4) Violation of the California Environmental Quality Act (CEQA) and Govt. Code 65352.3 against Kern, TRC and TMV; and

(5) Declaratory relief against defendant Salazar.

ANALYSIS AND DISCUSSION A. Standard for Motion to Dismiss

1. Motion to Dismiss for Failure to State a Claim

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the pleadings set forth in the complaint. A Fed.R.Civ.P. 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the factual allegations of the complaint in question, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404, reh’g denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969).

To survive a motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). A claim has facial plausibility, “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009).

A court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Farm Credit Services v. American State Bank, 339 F.3d 764, 767 (8th Cir.2003) (citation omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 554, 127 S.Ct. 1955, 1964-65 (internal citations omitted). Although accepted as true, the “[flactual allegations must be [sufficient] to raise a right to relief above the speculative level----” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). Moreover, a court “will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing Ass’n v. Hanes, 181 F.R.D. 629, 634 (S.D.Cal.1998). In practice, “a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. at 1969. While accepting factual allegations in the complaint as true, the court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060 (9th Cir.2011).

2. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendants seek Fed.R.Civ. Proc. 12(b)(1) dismissal of plaintiffs’ claims. F.R.Civ.P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). Limits on feder al jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d. 274 (1978). A plaintiff bears the burden to establish that subject matter jurisdiction is proper. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; see Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir.2001) (“plaintiff has burden of proving jurisdiction” to survive a F.R.Civ.P. 12(b)(1) motion to dismiss).

When addressing an attack on the existence of subject matter jurisdiction, a court “is not restricted to the face of the pleadings.” McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir.1988). In such a case, a court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983); Smith v. Rossotte, 250 F.Supp.2d 1266, 1268 (D.Or.2003) (a court “may consider evidence outside the pleadings to resolve factual disputes apart from the pleadings”).

“The plaintiff always bears the burden of establishing subject matter jurisdiction. In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise.” Valdez v. U.S., 837 F.Supp. 1065, 1067 (E.D.Cal.1993). “[T]he burden of proof is on the plaintiff to support allegations of jurisdiction with competent proof when the allegations are challenged by the defendant.” O’Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982).

3. Judicial Notice

Courts may take judicial notice of facts whose “existence is ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ ” W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n. 4 (9th Cir.2008). It must be taken when a party requests it and supplies all necessary information. Fed.R.Evid. 201(d). “Judicial notice” is the court’s recognition of the existence of a fact without the necessity of formal proof. See United States v. Harrison, 651 F.2d 353, 355 (5th Cir.1981); Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1026 (9th Cir.1992). Facts proper for judicial notice are those facts not subject to reasonable dispute and either “generally known” in the community, or “capable of accurate and ready determination” by reference to sources whose accuracy cannot be reasonably questioned. Fed.R.Evid. 201; MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (court may take judicial notice of official records and reports. • The court need not accept as true allegations that contradict facts which may be judicially noticed by the court.) A court may take judicial notice of its own records. See e.g., Day v. Moscow, 955 F.2d 807, 811 (2nd Cir.1992). Courts may take judicial notice of public records. Cachil Dehe Band of Wintun Indians of Colusa Indian Community v. State of Calif., 547 F.3d 962, 969 & fn. 4 (9th Cir.2008). Judicial notice is particularly appropriate for the court’s own records in prior litigation related to the case before it. Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361-1362 (10th Cir.2008) (district court was entitled to take judicial notice of its memorandum of order and judgment from previous case involving same parties).

The parties have asked the Court to take judicial notice of numerous documents. (See e.g., Doc. 138, Kern’s Request for Judicial Notice; Doc. 141, Tejon’s Request for Judicial Notice; Doc. 153, Plaintiffs request for Judicial Notice; Doc. 172, Tejon’s Request for Judicial Notice, Doc. 192, Plaintiffs Request for Judicial Notice.) The Court has taken judicial notice of those documents appropriate for judicial notice and has taken judicial notice of the requested documents that have been referenced specifically in this Order.

B. The 1851 Act and the Treaty of Guadalupe Hidalgo

Defendants TMV and TRC argue that plaintiffs’ claims to the land should be dismissed because plaintiffs challenge to title is barred by the 1851 Act (Act of March 3, 1851, ch. 41, 9 Stat. 631 (1851)) and the Treaty of Guadalupe Hidalgo. TRC argues title to TRC’s land is readily traceable from land grants made by the Mexican government to private parties pri- or to 1848 and confirmed by the United States after the land was ceded by Mexico to United States, as evidenced by a United States land patent. (Doc. 140, Moving papers p. 5.) Defendants argue that the Tribe has lost any aboriginal title for failing to comply with the requirements of the 1851 Act.

1. Aboriginal Title

The common view of aboriginal title is that it is the right of occupancy held by tribes. See, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974); U.S. v. Dann, 873 F.2d 1189, 1195 (9th Cir.1989). Indians’ aboriginal title derives from their presence on the land before the arrival of white settlers. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955). It is well settled that in all the States the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. Id. Fee title to the lands occupied by Indians when the colonists arrived became vested in the United States, but a right of occupancy in the Indian tribes is recognized. This mere possession is not specifically recognized as ownership by Congress. This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties, but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians. Tee-Hit-Ton Indians v. U.S., 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955). Aboriginal title may be extinguished by the federal government at any time, although extinguishment will not be taken lightly. United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). “Congress’ power to extinguish aboriginal title is supreme, ‘whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise ----’ ” United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260 (1941).

2. Overview of the Treaty of Guadalupe Hidalgo and the 1851 Act

The Treaty of Guadalupe Hidalgo, signed on February 2, 1848 and entered into force on May 30, 1848, signaled the formal end of the Mexican-American War. 9 Stat. 922 (1848); U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 641 (9th Cir.1986). The United States and Mexico signed the treaty of Guadalupe Hidalgo, in which Mexico ceded land that includes parts of the present-day state of California to the United States. 9 Stat. 922 (1848). To settle land claims in the newly acquired territory, Congress passed the Act of March 3, 1851, ch. 41, 9 Stat. 631 (1851) (“1851 Act”). The 1851 Act created a board of commissioners to determine the validity of claims, and required every person “claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government” to present the claim within two years. 1851 Act, ch. 41, § '8; U.S. ex rel. Chunie v. Ringrose, 788 F.2d at 641. Any land not claimed within two years, and any land for which a claim was finally rejected, was deemed “part of the public domain of the United States.” 1851 Act, ch. 41, § 13. The determination by the commission as to patents issued “shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.” 1851 Act, ch. 41, § 13. Courts in the United States have uniformly found that title to the land first passed to the United States through the Treaty. See, e.g., United States v. California, 436 U.S. 32, 34 n. 3, 98 S.Ct. 1662, 1663 n. 3, 56 L.Ed.2d 94 (1978) (stating that, under the Treaty, “all nongranted lands previously held by the Government of Mexico passed into the federal public domain”).

3. Cases in which Indians Lost the Right of Occupancy under the 1851 Act

In Barker v. Harvey, 181 U.S. 481, 21 S.Ct. 690, 45 L.Ed. 963 (1901), the Supreme Court held Mission Indians lost their land claims for failure to comply with the 1851 Act. The Court upheld the validity of land patents against challenges by Mission Indians claiming pre-existing aboriginal title. The Mission Indians had not presented their claims to the 1851 Commission. In Barker, individuals claiming title to the land also claimed by the Mission Indians, sued to quite title to land. The individuals claimed the land was ceded to the United States by the Treaty of Guadalupe Hidalgo, and under a patent confirming grants made by the Mexican government to the plaintiffs’ ancestor in title. The defendants, Mission Indians, contended that plaintiffs’ title was subject to their right of permanent occupancy which they claimed had been recognized by the government of Mexico long before the existence of the grants relied on by the plaintiffs. The Indians claimed that the “government of Mexico had always recognized the lawfulness and permanence of their occupancy.” Id. at 482, 21 S.Ct. 690. The Court held that the 1851 Act barred the Indian’s claim to occupy the land because their claims were not presented to the commission for consideration within the time allowed by the act. “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.” Barker v. Harvey, 181 U.S. at 491, 21 S.Ct. 690.

Similarly, in United States v. Title Ins. & Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924), the court held that the Tejón Mission Indians lost their rights to land for failure to present their claim to the commission pursuant to the 1851 Act. In 1843, two Mexicans were granted a land grant by the Mexican government of California for El Tejón conditioned upon the protection of the Indians who resided there. Under the laws of Spain and Mexico, the individuals were entitled to the undisturbed possession and use of the land they occupied. Title Ins., 288 F. 821, 822 (9th Cir.1923). After the treaty of Guadalupe Hidalgo, the two Mexicans petitioned the board of commissioners under the 1851 Act to settle their claim and the commissioners confirmed the land patent in the individuals. Thereafter, in Title Ins., the United States brought action on behalf of the Tejón Mission Indians who occupied land in the El Tejón Rancho in Kern County. The Indians claimed that “[f]rom time immemorial the land has been continuously occupied by the Tejón Indians, who have resided thereon in permanent dwellings ...” The Indians were in open, notorious, and adverse occupancy of such lands at the date of the grant. The suit by the United States on behalf of the Tejón Mission Indians sought to have the original title of occupancy and possession of the land by the Indians confirmed.- The Indians argued that if the grant was made it was subject to a ‘perpetual right’ in the Indians and their descendants to occupy and use the lands.

The Supreme Court in Title Ins., based its decision upon Barker v. Harvey. Any claim that the Tejón Mission Indians may have had was lost by failing to present it to the land commission and that the patent issued to defendants “passed the full title, unencumbered by any right” of those Mission Indians. Id. After summarizing and quoting from Barker, the Court held that the case was so much like Barker that the result must be the same. Id. at 485-86, 44 S.Ct. 621. Accordingly, the Court affirmed the judgment against the Tejón Indians. The Court said the United States would have been unable to grant the land patent it had by the Board of commissioners if the Indians had a claim of permanent occupancy. Title Ins., 265 U.S. at 484, 44 S.Ct. 621 (“is an essential difference between the power of the United States over lands to which it had had full title, and of which it has given to an Indian tribe a temporary occupancy, and that over lands which were subjected by the action of some prior government to a right of permanent occupancy, for in the latter case the right, which is one of private property, antecedes and is superior to the title of this government, and limits necessarily its power of disposal.”)

In U.S. ex rel. Chunie v. Ringrose, the Court held that an Indian tribe lost all rights to the their aboriginal land for failing to present claims in the land confirmation proceeding pursuant to the Treaty of Guadalupe Hidalgo and the 1851 Act. The Indian Tribe claimed possession of islands off the Santa Barbara coast. These same islands had been granted to individuals by the Mexican government, who submitted claims to the board of commissioners pursuant to the 1851 Act to determine the validity of their claims. Land patents were granted by the Commission. A century later, the Indians disputed the land patents and claimed that, like the plaintiffs here, the 1851 Act did not apply to Indian claims based on aboriginal title. Like the plaintiffs here, the Indians in Ringrose claimed they were excepted from the land confirmation proceedings. The Indians claimed they possessed the land “from time immemorial” and that their aboriginal title has never been extinguished. Id. at 641. They argued that they had the right of occupancy notwithstanding the land patents. The Indians argued, as plaintiffs do here, that they were not required to submit a land claim under the 1851 Act. They argued that the 1851 Act only required persons claiming lands “by virtue of any right or title derived from the Spanish or Mexican government” to file claims, but because aboriginal title is not “derived from the Spanish or Mexican government,” the Indians were not required to file a claim. Id. at 645.

The Ninth Circuit acknowledged that a claim of aboriginal title provided the Indians with a “right of occupancy.” Id. at 642. After reviewing Supreme Court precedent which recognized the “extensive reach” of the 1851 Act, the Ninth Circuit disagreed with the Indians. The Court held that the Indians “claiming a right of occupancy based on aboriginal title, lost all rights in the land when they failed to present a claim to the commissioners.” The Court stated that when the individuals’ land claims derived from the Mexican government, were “confirmed and received federal patents to their lands, they were entitled to believe that adverse claims to their lands had been eliminated.” Ring-rose, 788 F.2d at 646. Thus, the Court held that aboriginal title had been extinguished by the failure of the Indians to present a claim for the disputed land with the board of commissioners pursuant to the 1851 Act. See also Super v. Work, 149, 3 F.2d 90 (1925), affirmed by Super v. Work, 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128 (1926) (roving bands of Indians, who were not Mission Indians, did not make claim under the act of 1851, and they must therefore be treated as having lost, through abandonment, any claim which they may have had.)

Thus, case law holds that aboriginal title is lost when land patents are validly issued to predecessors in title. Indian claims to occupancy is invalid as against such validly issued land patents by the board of commissioner pursuant to the 1851 Act. Here, land patents were issued for the land claimed by plaintiffs. Thus, the Tribe would lose any claim to aboriginal title for failing to submit a claim pursuant to the 1851 Act.

In their opposition, plaintiffs challenge the validity of the original land patents. “Plaintiffs do challenge their validity, as well as any other land grants or patents claimed by Tejón.” (Doc. 155, Opposition p. 12 n. 7.) In their opposition, plaintiffs state that the Kawaiisu dispute that Tejón actually has good title to the property as the Kawaiisu allege that Tejón does not have any patents for the land where the graves or cultural items were excavated or, in the alternative, that any patents for these lands are forgeries or otherwise invalid. (Doc. 155, Opposition p. 21.)

Plaintiffs, however, have failed to allege any factual basis for claiming the invalidity of the land patents. Plaintiffs allege that land patents for their claimed land were issued and that ex-superintendent Beale, TRC’s predecessor, and others drew up patents under old Spanish land grants for the approximately 270,000 acres that now comprises Tejón Ranch. (Doc. 133 ¶ 28.) Plaintiffs allege that the land patents were “not approved by any action of either the United States or Congress and was therefore unlawful.” (Doc. 133 ¶ 28.) The factual basis is not alleged for the statement that the land patents were invalid, were not approved and therefore unlawful. If plaintiff claims that the predecessor land patents are invalid, plaintiffs must allege a sufficient factual basis. Leave to amend will be granted. “[A] district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007). Twombly requires plaintiff to include sufficient facts supporting their claim that the land patents issued to the predecessor in title are invalid.

4. Cramer v. United States which Permitted Right of Occupancy

Plaintiffs distinguish the above cases and argue that the Barker court recognized that Section 8 of the 1851 Act only required persons claiming land in California by virtue of any right or title derived from the Spanish or Mexican government to submit a claim to the commission. (Doc. 155 Opposition p. 11.) Plaintiffs argue that they do not claim right or title derived from the Mexican government.

Plaintiffs rely on Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923). Cramer held that the 1851 Act had no application to the Indian claims before the Court. The Indians in Cramer were in actual possession of land. Three Indians had occupied 175 acres of public land for years prior to the United States grant of a patent to a railroad, which excepted land “found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of.” 261 U.S. 219, 43 S.Ct. 342. The Indians argued that the congressional act in question, which permitted issuance of the land patent, was invalid because they individually occupied and used the land continuously since before the federal government removed the land from settlement in 1859. The Supreme Court upheld their title to the land actually enclosed and occupied by the individual Indians. Id. at 234-36, 43 S.Ct. 342. The United States Supreme Court reasoned that aboriginal title creates an individual aboriginal right of occupancy. The Court concluded that the Indians’ right of occupancy was superior to the title vested through a later federal land patent. Id. at 225, 43 S.Ct. at 343. The Supreme Court grounded its opinion on the contemporary government policy which favored land settlement in general and Indian settlement in particular. The Court stated, “[i]n our opinion the possession of the property in question by these Indians was within the policy and with the implied consent of the Government.” Id. at 230, 43 S.Ct. at 345.

In Cramer, the defendant railroad argued that the Indians were barred by the 1851 Act because the Indians failed to present their claims to the board of commissioner. The Court rejected that argument on the grounds that the 1851 Act had no application. Id. at 231, 43 S.Ct. 342. The Indians did not claim their rights derived from the Spanish or Mexican government. Indeed, the Court noted that prior to the cession to the United States, the Mexican authorities found that the Indians had abandoned the lands and thereupon made an absolute grant to the plaintiffs predecessors, and, this grant having been confirmed by the Commission, a patent for the lands had issued. Significantly, the Cramer court noted that “it does not appear that these Indians were occupying the land in question when the act was passed.” Id. at 231, 43 S.Ct. 342.

Plaintiffs argue that the Kawaiisu’s claim to Tejón Ranch likewise comes under Cramer, because like the Indians in Cram-er, and unlike the Indians in Barker and Title Insurance, the Kawaiisu claim is not based on rights obtained from Spain or Mexico, and the Kawaiisu are not now nor have they ever been Mission Indians.

Plaintiffs’ reliance on Cramer is not persuasive because Cramer is distinguishable. Cramer involved a claim to land which the individual Indians had enclosed and occupied for years before the federal grant to the railroad. The case did not involve tribal rights to vast areas not actually possessed. Further, the Court in Cramer found the 1851 Act inapplicable because the possession by the individual Indians occurred well after the Act. See Miller v. United States, 159 F.2d 997, 1005 (9th Cir.1947) (erroneous claim of original Indian title does not defeat right of individual occupancy). Here, plaintiffs allege that their title preceded the 1851 Act. Further, there are no allegations as to the actual occupancy and possession of the disputed land such as was in Cramer.

At oral argument, plaintiffs argued that they could allege facts to fall within the Cramer. Plaintiffs will be granted leave to allege that their occupancy was in continued occupancy of the land they claim.

C. Treaty with the Utah (9 Stat. 984)

Plaintiffs allege they have express land rights through the Treaty with the Utah. Plaintiffs claim that the 1851 Act cannot abrogate these express treaty rights. Plaintiffs argue that their claim to the Tejón Reservation was created by Congress when it ratified the Treaty with the Utah on September 9, 1850, which occurred after the United States ratified the Treaty of Guadalupe Hidalgo (March 10, 1848). (Doc. 155, Opposition p. 14.) The Reservation was created after the 1851 Act was passed and thus falls with the Cramer exception. Plaintiffs argue that the 1851 Act cannot bar express land rights granted to the tribe and that their land claims arise from a ratified treaty.

1. Legal Framework — Treaties

Supreme Court jurisprudence teaches that Indian Treaties must be interpreted as the Indians would have understood them. A treaty between the United States and an Indian tribe “is essentially a contract between two sovereign nations.” Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Treaties constitute the “supreme law of the land.” Skokomish Indian Tribe v. U.S., 410 F.3d 506, 512 (9th Cir.2005) (en banc), cert. denied, 546 U.S. 1090, 126 S.Ct. 1025, 163 L.Ed.2d 854 (2006).

“The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm’s-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them....” Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970) (citations omitted). It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct. 862, 86 L.Ed. 1115 (1942) (citation omitted); see also United States v. Winans, 198 U.S. 371, 380-81, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) (“we will construe a treaty with the Indians as ‘that unlettered people’ understood it, and ‘as justice and reason demand ....’” (citation omitted)). Any doubtful expressions in the Treaty should be resolved in the Indian’s favor. See Choctaw Nation, 397 U.S. at 631, 90 S.Ct. 1328.

2. Treaty with the Utah Did not Reserve Land or Apply in California

In the Treaty with the Utah, the Utah Indians submitted to the jurisdiction, power, and authority of the United States: “The Utah Tribe of Indians do hereby acknowledge and declare they are lawfully and exclusively under the jurisdiction of the Government of said States.” (9 Stat. 984, art. I.) The Court of Federal Claims in Uintah Ute Indians of Utah v. U.S., 28 Fed.Cl. 768, 786 (Fed.Cl.1993) provided a detailed opinion on the history of the Utah, aboriginal title and the Treaty with the Utah. “Utah Indians” refers to “any and all Indians resident in Utah, in or around Salt Lake City,” during the relevant time period. Uintah Ute Indians of Utah v. U.S., 28 Fed.Cl. at 773 n. 5. In pertinent part, the treaty provides that:

the aforesaid Government shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries .... And the said Utahs, further, bind themselves not to depart from their accustomed homes or localities unless specifically permitted by an agent of the aforesaid Government; and so soon as their boundaries are distinctly defined, the said Utahs are further bound to confine themselves to said limits ... and they now deliberately and considerately, pledge ... to confine themselves strictly to the limits which may be assigned them____

Treaty with the Utah, Dec. 30, 1849, art. VII, 9 Stat. 985.

As the Court recognized in Uintah Ute Indians of Utah, Article VII of the Treaty with the Utah does not recognize title because the boundaries of aboriginal lands were to be settled in the future. By its terms, the treaty does not designate, settle, adjust, define, or assign limits or boundaries to the Indians. It leaves such matters to the future. “The ratified treaty allowed the Indians permissive occupation and reserved a final settlement sometime in the future.” Uintah Ute Indians, 28 Fed.Cl. at 789. The treaty with the Utah does not establish any reservation for Indians, including plaintiffs in the instant case. Consequently, the treaty cannot be said to recognize Indian title. Uintah Ute Indians of Utah, 28 Fed.Cl. at 786. The court held that treaty was made with the “Utah” Indians, which involved no cession of lands and did not set apart any reservation to the Indians. (9 Stats., 984.) The Treaty with the Utah did not provide a reservation for Indians. It did, however, recognize some rights of the Indians to the occupation of certain lands. For instance, Article V of that treaty is as follows:

“V. The people of the United States, and all others in amity with the United States, shall have free passage through the territory of said Utahs, under such rules and regulations as may be adopted by authority of said States.”

The Treaty, however, did not recognize Indian title. Thus, the treaty did not establish any title or reservation to land, and the treaty did not benefit tribes other than those in the Utah area.

3. Pleading Deficiencies regarding the Treaty with the Utah

Here, plaintiffs’ reliance upon the Treaty with the Utah as a basis of land claims suffers from two pleading deficiencies.

First, plaintiffs have not alleged a factual basis for their association or descent from the tribes in the Treaty with the Utah. Plaintiffs sole allegation of descent is, “The Tribe descends from signatories to the 1849 Treaty with the Utah and the ‘Utah tribe of Indians.’ ” (Doc. 133 SAC 3.)

“The KAWAIISU TRIBE OF TE-JON is one of the ancient Great Basin Shoshone Paiute tribes whose pre-European territory extended from Utah to the Pacific Ocean. They have inhabited this area from time immemorial. At various times throughout history, the Kawaiisu People have been called any one or more the following names: Nochi, Cobaji, Cobajais, Covaji, Kahwissah, Kawiasuh, Kawishm, Kowasah, Kubakhye, Newooah, Noches Colteches, Tahichapahanna, Tahichp. (Doc. 133, SAC ¶ 16.)”

If the tribe is located in Tejón in 1849, it is not plausible under the current allegations that it was part of the Utah.

Further, plaintiffs have not adequately alleged that this treaty had anything to do with the tribes in the ceded land in California and that the treaty was intended to benefit the Kawaiisu. For Indian title to be recognized, “Congress, acting through a treaty or statute, ... must grant legal rights of permanent occupancy within a sufficiently defined territory.... There must be an intention to accord or recognize a legal interest in the land.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 644 (9th Cir.1986). As currently alleged, it is not plausible that the Treaty with the Utah had anything to do with Indians in California. Plaintiffs must allege a firmer connection between their land possession and with the Indians in the Treaty with the Utah. Therefore, plaintiffs have not adequately alleged they are descendants of the Treaty of the Utahs or that the Treaty was entered into for their benefit, as a Tribe located in California.

3. Treaty “D” has No Force

Plaintiffs claim that Treaty D provides the Tribe its land claim.

Treaty D was a promise by the United States to set apart certain reservations for “various tribes of Indians in the State of California” in 1852, and to provide the goods, chattels, school houses, teachers, among other things. Treaty D, Art. 4; see Hein Online, 4 Indian Aff. L & Treaties, 1101 (1913-1927). Those promises were never carried out by the United States. Both plaintiffs and the defendants agree that Treaty D was not ratified by Congress. (Doc. 133 SC ¶ 25.) An unratified treaty has no force until ratified by a two-thirds vote of the Senate. U.S. Const., art. II, cl. 2; S.E.C. v. International Swiss Investments Corp., 895 F.2d 1272, 1275 (9th Cir.1990). Since Treaty D was never ratified, it cannot provide any basis for plaintiffs’ claim to land.

Defendants seek to further distinguish Treaty D, by noting that descendants of tribes in Treaty D were compensated for the failure to ratify the treaties. (See Doc. 170, Reply p. 8.) Treaty D was among 18 treaties attached as “Exhibit A” to the complaint in Indians of California by Webb v. United States, 98 Ct.Cl. 583 (1943), cert. denied, 319 U.S. 764, 63 S.Ct. 1324, 87 L.Ed. 1714, brought by the California Attorney General under the “Indians of California Act” of May 18, 1928, 25 U.S.C. § 651. The Indians of California Act authorized “the [Attorney [G]eneral of the State of California to bring suit in the Court of Claims on behalf of the Indians of California,” who were defined as “all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State.” Id.; see also Indians of California by Webb v. United States, 98 Ct.Cl. 583, 585 (Ct.Cl.1942) (“[Pjlaintiffs, herein designated as The Indians of California, comprise all those Indians of the various tribes, bands and rancherías who were living in the State of California on June 1, 1852, and their descendants living in the state on May 18, 1928 — such definition and designation having been prescribed in the Jurisdictional Act [of 1928].”). The Act authorized the Attorney General to file on behalf of the Indians for compensation for land taken in the unratified treaties, such as Treaty D. Indians of California by Webb, 98 Ct.Cl. 583 (these Indians “did not qualify before the Commission created by the Act of March 3, 1851, 9 Stat. 631, entitled ‘An Act to ascertain and settle the private land claims in the State of California.’ Therefore whatever lands they may have claimed became a part of the public domain of the United States.”) The Attorney General filed suit on August 14, 1929 and in 1942, the Court of Claims held the Indians of California were entitled to recover damages from the United States. As explained in Round Valley Indian Tribes v. U.S., 97 Fed.Cl. 500, 504 (Fed.Cl.2011), the government later stipulated to judgment on October 30, 1944 in the amount of $5,024,842.34. Round Valley Indian Tribes, 97 Fed.Cl. at 504.

The court will note that Treaty D, negotiated two years after the Treaty with the Utah, specifically referred to “tribes in the state of California.” It did not reference the Treaty with the Utah or mention in any way the Treaty with the Utah or that the Indians in Treaty D were covered by the Treaty with the Utah. Thus, based on the current allegations, the Tribe’s land claims based on the Treaty with the Utahs are not plausible.

4. The Tejon/Sebastian Reservation

Plaintiffs also argue that their land claims arise from the creation of the certain Reservations in California. Plaintiffs allege that the Tejon/Sebastian Reservation was created for the Tribe’s benefit. Plaintiff argues the Reservation was authorized by Congress in 1853 and established by General Beale. (Doc. 155, Opposition p. 14.)

a. “Reservation” Statutory and Executive Authority

The term “Indian reservation” originally meant any land reserved from an Indian cession to the federal government regardless of the form of tenure. Cohen, Handbook of Federal Indian Law, § 3.04[2][e][ii]. In the 1850s, the Federal government began frequently to reserve public lands from entry for Indian use. Cohen, id., citing Appropriations Act of Mar. 3, 1853, § 1, 10 Stat. 226 (“President is ... authorized to make five military reservations from the public domain in the State of California ... for Indian purposes ... reservations shall not contain more than twenty-five thousand acres in each.”)

Congress authorized the President in 1853 “to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.... Provided, That such reservations shall not contain more than twenty-five thousand acres.” Act of March 3, 1853, ch. 104, 10 Stat. 226, 238. The 1853 Act permitted a reservation of at most 25,000 acres. 10 Stat. 226, 238 (That “such reservations shall not contain more than twenty-five thousand acres each” and “shall not be made on any lands inhabited by Citizens of California.”) It has long been held that Congress has the power to diminish reservations unilaterally. Solem v. Bartlett, 465 U.S. 463, 470 n. 11, 104 S.Ct. 1161, 1166 n. 11, 79 L.Ed.2d 443 (1984). “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.” Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. at 2258.

The 1853 Act was subsequently amended to provide for two additional reservations. Act of March 3, 1855, ch. 204, 10 Stat. 686, 699; see Shermoen v. U.S., 982 F.2d 1312, 1315 n. 1 (9th Cir.1992), cert. denied, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993). The Act of March 3, 1855, 10 Stat. 699, appropriated funds for “collecting, removing, and subsisting the Indians of California ... on two additional military reservations, to be selected as heretofore ... Provided, That the President may enlarge the quantity of reservations heretofore selected, equal to those hereby provided for.”

Plaintiffs have not pointed to any executive order establishing the Tejon/Sebastian reservation as a result of the 1853 or 1855 Acts.

Later in 1864, Congress passed “An Act to provide for the Better Organization of Indian Affairs in California.” Act of April 8, 1864, ch. 48, 13 Stat. 39. This measure empowered the President to reserve four tracts of land:

set apart ... at his discretion, not exceeding four tracts of land, within the limits of [California], to be retained by the United States for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable....

The Act of April 8,1864 designated California as one Indian superintendency. Congress authorized the President to designate the reservations. The 1864 Act further provided that the lands not retained were to be surveyed and offered for sale: “[T]he several Indian reservations in California which shall not be retained ... under ... this act, shall ... be surveyed into lots or parcels ... and ... be offered for sale at public outcry, and thence afterward shall be held subject to sale at private entry.” Id., at 40; see generally Mattz v. Arnett, 412 U.S. 481, 490, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). The Supreme Court noted in Mattz that, “At the time of the passage of the 1864 Act there were, apparently, three reservations in California: the Klamath River, the Mendocino, and the Smith River. It appears, also, that the President did not take immediate action, upon the passage of the Act, to recognize reservations in California.” Mattz v. Arnett, 412 U.S. at 489-490, 93 S.Ct. 2245. The Act of 1864 superseded the Act of 1853 by allowing only four reservations in California. Shermoen v. U.S., 982 F.2d 1312, 1315 (9th Cir.1992). See Executive Orders found in Hein Online, 1 Indian Aff. L & Treaties 815-831 (1902). Those reservations were established by Executive Order and were the Hoopa Reservation (established in 1876), Mission Indian Reserve (established in 1870, and revised from 1877-1889), Round Valley Reservation (established 1870), and Tule River Reservation (established 1873).

b. Tejon/Sebastian is not a Reservation

Plaintiff alleges that in 1853, the Tejon/Sebastian Reservation was created. Plaintiff alleges the Reservation was resurveyed in 1858 at 49,927 acres.

As discussed above, the Act of 1864 required that the President establish the California Reservations. To the extent that there is no Executive Order creating the “Tejon/Sebastian Reservation”, the absence of Executive Order nullifies the existence of such a reservation. The Act of 1864 superceded any prior act establishing a reservation and gave the authority to the President to create reservation. Plaintiffs have not pointed to any executive order or executive action which establishes the Tejon/Sebastian Reservation, and the Court has not found any such Executive action.

Contrary to plaintiffs’ arguments in opposition to this motion, no where in the Second Amended Complaint do they allege that the Tejon/Sebastian Reservation is in fact a current Reservation, as opposed to a historical, potential Reservation which was not established and now no longer exists. Relevant allegations are:

3. In addition, the Tribe descends from those Indians for whom the 1853 Tejon/Sebastian Reservation was created....

27. The Tejon/Sebastian Reservation would be re-surveyed at 49,928 acres in 1858.

63. Plaintiffs are informed and believe and thereon allege that this damage or destruction occurred both on the Tejon/Sebastian Reservation property and within the Tejón Mountain Village Development footprint that is within land to which Plaintiffs hold aboriginal title.

Indeed, the SAC does not allege that the Tejon/Sebastian Reservation is an active reservation upon which the plaintiffs reside.

Plaintiffs argue that the SAC alleges that Congress has never disestablished the Reservation. (Doc. 155 Opposition p. 22.) Plaintiffs, however, allege that the Indians were forcibly removed from the Tejon/Sebastian to the Tule River Reservation and all with the knowledge of Congress. (SAC ¶ 28.) The Tule River Reservation was a Reservation expressly established by Executive Order. Documents relied upon by plaintiffs state that the reservation was “abandoned.” (See SAC ¶ 28; 56th Congress 1st Sess. House Doc. No. 736 at 788, 789.) Accordingly, the Tejon/Sebastian Reservation was not an established reservation and therefore cannot provide land rights to plaintiffs.

c. De Facto Reservation

At oral argument on this motion related to the Reservation issue, plaintiffs argued that the Tejon/Sebastian reservation was a defacto reservation.

A de facto reservation is one where the federal government has treated the Indians as on a reservation. The actions of the federal government in its treatment of Indian land can create a de facto reservation, even though the reservation was not created by a specific treaty, statute or executive order. U.S. v. Azure, 801 F.2d 336, 338 (8th Cir.1986) (tribal trust land could be considered de facto reservation or dependent Indian community). A key factor in finding a de facto reservation is the actions of the BIA in expending funds and providing social services. See e.g., Sac & Fox Tribe v. Licklider, 576 F.2d 145, 149-50 (8th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). For instance, in Mattz v. Arnett, 412 U.S. at 490-491, 93 S.Ct. 2245, the Court said that the Klamath River Reservation, “although not reestablished by Executive Order or specific congressional action, continued, certainly, in de facto existence.” The Court noted that the BIA regarded the Klamath River Reservation as “in a state of reservation,” no attempts were made to sell the reservation, the military protected against trespass, and allotments were proposed. See HRI, Inc. v. E.P.A, 198 F.3d 1224, 1231 (10th Cir.2000) (declining to find a de facto reservation in the face of evidence of Congressional intent to disestablish that area); See U.S. v. Roberts, 185 F.3d 1125, 1131 (10th Cir.1999) (lands owned by the federal government in trust for Indian tribes are Indian Country pursuant to statute for crimes on Indian country); State of Minnesota v. Hitchcock, 185 U.S. 373, 388, 22 S.Ct. 650, 46 L.Ed. 954 (1902) (government enacted legislation which assumed trustee relationship for Indians).

To the extent that plaintiffs may possess facts that could establish a defacto reservation, the Court will allow amendment. However, plaintiffs are cautioned that they must allege factual content sufficient to raise a plausible claim that the land they allege was the Reservation, was treated by the federal government as a reservation. Plaintiffs are further cautioned as to the factual pleading required by Iqbal and Twombly, and the Court will not sustain conclusory allegations. Finally, the plaintiffs are cautioned against making allegations inconsistent with Congressional enactments or Executive order.

D. Non-Intercourse Act

Plaintiffs allege that TMV and TRC defendants have possessed plaintiffs’ land unlawfully in violation of the Indian Non-Intercourse Act, 25 U.S.C. § 177 (“NIA”). Defendants argue that plaintiffs cannot bring a claim under the NIA because plaintiffs are not a “tribe” for purposes of the NIA, or in the alternative, tribal status should be determined by the Department of the Interior.

The Non-intercourse Act, 25 U.S.C. § 177, states, in relevant part, that, “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” 25 U.S.C. § 177. The purpose of NIA has been declared to be “to prevent unfair, improvident or improper disposition by Indians of land owned or possessed by them to other parties____” Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584 (1960), reh’g denied, 362 U.S. 956, 80 S.Ct. 858, 4 L.Ed.2d 873 (1960).

To establish a prima facie case for violation of the Indian Nonintercourse Act, an Indian tribe is required to allege that (1) it is an Indian tribe, (2) the land in question is tribal land, (3) the sovereign has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. Delaware Nation v. Pennsylvania, 446 F.3d 410 (3d Cir.2006), as amended, (June 14, 2006) and cert. denied, 549 U.S. 1071, 127 S.Ct. 666, 166 L.Ed.2d 547 (2006) (the Delaware Nation was a federally recognized Indian Tribe).

The NIA does not provide a definition of the term “tribe.” The NIA does not state or include language that a tribe must be a “recognized” tribe.

1. Definition of Tribe

In Montoya v. United States, 180 U.S. 261, 36 Ct.Cl. 577, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901), the Supreme Court defined the term “tribe” for a statute with a similar purpose as the NIA. At issue in Montoya was a statute which protected citizens from property destruction by “any band, tribe, or nation.” Like the NIA, the statute at issue did not define the term “tribe.” The Court defined a tribe as follows:

By a “tribe” we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory; by a “band,” a company of Indians not necessarily, though often of the same race or tribe, but united under the same leadership in a common design. While a “band” does not imply (a) separate racial origin ..., it does imply a leadership and a concert of action.

Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358; see Navajo Tribal Util. Auth. v. Ariz. Dept. of Revenue, 608 F.2d 1228, 1231 (9th Cir.1979) (a tribe does not include private Indian-owned entities or semi autonomous trial entities); See Kahawaiolaa v. Norton, 386 F.3d 1271, 1272-74 (9th Cir.2004) (recognizing that members of a tribe are of a same or similar race). Other cases defer to the Department of the Interior’s acknowledgment regulations and defer to the acknowledgment process. Price v. Hawaii, 764 F.2d 623, 627 (9th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986). In United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 70 L.Ed. 1023 (1926), the Supreme Court interpreted “tribe” for purposes of the Non-Intercourse Act as being “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular, though sometimes ill-defined, territory,” (quoting Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901)).

Here, the SAC does not contain allegations that the Tribe is “the same race united in a community under a single government.” Importantly, “[t]he Montoya/Candelaria definition and the BIA criteria both have anthropological, political, geographical and cultural bases and require, at a minimum, a community with a political structure.” Narragansett Tribe of Indians v. Southern R.I. Land Dev. Corp., 418 F.Supp. 798, 807 n. 8 (D.R.I.1976). The SAC fails to contain non-conclusory facts explaining how the Tribe itself is the authentic lineal descendants entitled to assert NIA claims pertaining to the land. Nonspecific allegation that they are a “tribe” — where the allegations do not meet the requirements of Montoya/Candelaria, and in light of the evidence that plaintiffs have submitted of a competing group. The facts are insufficient to allege that these plaintiffs are the present day embodiment of an ancient tribe. The SAC is devoid of any specific allegations that would permit the Court to draw a plausible inference that the plaintiffs are who they say they are. At a minimum, the complaint does not allege facts to satisfy the Montoya/Candelaria definition of a tribe.

2. Deferral to the BIA for Determination of Tribal Status

An additional issue the parties dispute is whether plaintiffs must go through the BIA acknowledgment process to be considered a “tribe.” TMV, TRC and Ken Salazar argue that plaintiffs cannot bring suit in this action because the Court should defer to the BIA acknowledgment process,

a. Federal Acknowledgment of Tribal Existence

The parties do not dispute that, generally, acknowledgment of tribal existence by the Department of the Interior is a prerequisite to the protection, services, and benefits from the federal government that are available to Indian tribes. 25 C.F.R. § 83.2. In 1975, Congress established the American Indian Policy Review Commission to survey the current status of Native Americans. The Commission highlighted a number of inconsistencies in the Department of Interior tribal recognition process and special problems that existed with non-recognized tribes. Congress delegated to the Department of the Interior the authority to adopt regulations to administer Indian affairs and to clarify departmental authority by regulation under 25 U.S.C. §§ 2, 9; see James v. United States Dep’t of Health and Human Services, 824 F.2d 1132, 1137-38 (D.C.Cir.1987). As a result, in 1978, the Department of Interior exercis