Robinson v. Salazar (885 F. Supp. 2d 1002, 2012)

United States District Court for the Eastern District of California 2012-08-07

Indians Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER ON ALL DEFENDANTS’ MOTIONS TO DISMISS (Doc. 219, 221, 223)

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 Tejón Mountain Village, LLC and Tejón Ranchcorp (doc. 221), (2) motion by County of Kern (doc. 219), and (3) motion by defendant Ken Salazar, in his capacity as the Secretary, U.S. Department of the Interior (doc. 223). Plaintiffs David Laughing Horse Robinson and Kawaiisu Tribe of Tejón filed oppositions, objections, and evidentiary support to their oppositions (see Doc. 233-235.) Moving parties filed reply briefs and supporting evidence. (See Doc. 236-238.) The parties have consented to the conduct of all proceedings before the assigned Magistrate Judge. The Court conducted a hearing on the motions on July 20, 2012. Plaintiffs appeared by telephone by counsel Michele Jackson, telephonically, and by Robert Wyrick, in person. Defendant Ken Salazar appeared by telephone by counsel Barbara Marvin and Barbara Coen. Defendants Tejón Mountain Village, LLC, Tejón Ranchcorp, and Tejón Ranch Corporation appeared by telephone by counsel Jena MacLean and Benjamin Sharp. Kern County appeared by telephone by counsel Charles Collins. 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 Third Amended Complaint (“TAC”). The well pled factual allegations are taken as true. In the interest of completeness, the Court repeats the allegations well-known to the parties even though this is the fourth time the complaint has been amended, and many of the allegations are the same as addressed in this Court’s prior orders.

The overview of the case is that plaintiffs seek title, to occupy and use land, that they contend the United States guaranteed them pursuant to the 1849 Treaty with the Utah and by establishing the Tejón Indian Reservation in 1853. (TAC ¶ 1.)

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.” Plaintiffs allege that the Tribe “descends from signatories to 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. 211, TAC ¶ 2.) The Tribe acknowledges that it is not on the list of federally recognized tribes by the Bureau of Indian Affairs, but allege that it is “a federally recognized tribe by virtue of, inter alia, descending from signatories to of the 1849 Treaty with the Utahs and the Utah Tribes of Indians.” (Doc. 211 TAC ¶ 2)

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

B. The Defendants

Defendant Tejón Mountain Village, LLC, Defendant Tejón Ranch Corporation and Defendant Tejón Ranchcorp (“Tejón Defendants”) 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 lands of the Tribe. (Doc. 211 TAC ¶¶ 6-9.) These entities intend 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. 211, TAC ¶ 36.)

Defendant County of Kern (“Kern”) was the lead agency for the Tejón Mountain Village development project and ultimately approved the project after hearing and Environmental Impact Report. (Doc. 211, TAC ¶ 7.)

Defendant Ken Salazar is sued in his official capacity as Secretary of the United States Department of Interior (“DOI”).

C. The Kawaiisu Tribe

Plaintiffs allege that the Kawaiisu is one of the ancient Great Basin Shoshone Paiute tribes whose pre-European territory extended from Utah to the Pacific Ocean. They have inhabited the Tejón area of California 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 Coheches, Tahichapahanna, Tahichp. (TAC ¶ 32.) Currently, five hundred individuals are alleged to be enrolled in the Tribe and are all related either by blood or adopted and all blood related are “descendants of the leaders of the Kawaiisu Tribe that signed the Treaty with the Utahs in 1849.” (TAC ¶ 15.) The citizens of the Kawaiisu are also descendants of the tribe of Native American encountered by Father Garces in or about 1776 and discussed in his diary and noted in his diseno maps as: Cobaji, Cobajaef, Cobajais, Covaji, Quabajai, Nochi, Nochis and Noches Coheches. In allegations found at paragraphs 32 to 63, plaintiffs outline the history, customs, community and beliefs of the Kawaiisu. The Tribe currently operates under an adopted Constitution which was adopted in 2002. (TAC ¶ 16.)

D. Treaty with the Utahs

Plaintiffs allege that before California was admitted to the Union, the Tribe’s ancestors were signatories to the Treaty Between the United States of America and the Utah Indians, known as the Treaty with the Utah signed December 30, 1849, and ratified by the Senate on September 9, 1850. (TAC ¶ 89.) Plaintiff alleges that representatives of the Kawaiisu met to sign the Treaty with the Utah along with other tribe leaders. (TAC ¶ 101.) Plaintiffs allege on information and belief that around 1847, the tribe was headed by Acaguate Nochi, who signed the Treaty with the Utahs in 1849. (TAC 18.) Plaintiffs allege that in entering into the Treaty with the Utah, the tribal leaders were told that “they were not giving up their ancestral territories.” (TAC ¶ 101.) The group of chiefs who signed the Treaty did not represent a single “tribe” of Indians, but actually each represented a tribe or band of Indians, which together made up the Confederated Tribes of Utahs, which included the Kawaiisu. (TAC ¶ 105.) Plaintiff alleges that the “Utah tribe” was considered a “large umbrella that contained numerous groups of Indians, including the Paiutes,” which plaintiffs allege is the Kawaiisu. (TAC ¶ 108.) Plaintiffs allege that “the United States understood the designation of the territory of the ‘Utah tribe’ as stretching all the way from Utah to California and that all of the groups of Indians within the area had some sort of affiliation.” (TAC ¶ 109.)

E. Treaty D

Plaintiff alleges that on June 10, 1851, the headmen of the Tribe entered into a treaty, known as Treaty D, in which the Tribe agreed to cede large portions of its land in return for a defined reservation along with other goods and supplies for subsistence. (TAC ¶ 112.) The treaty was rejected by the Senate, but plaintiff alleges that the Tribe relied upon the treaty as if it were in force. (TAC ¶¶ 112-13.)

In 1852, Superintendent of Indian Affairs in California Beale was appointed. Beale established military posts and some provision for subsistence of the Indians. (TAC ¶¶ 119-123.) Plaintiffs allege that in 1853, Tejón was chosen as a site for a reservation. (TAC ¶ 135.) The majority of the allegations are based on information and belief as to the history and operations, citing some correspondence, regarding what Plaintiffs call the Tejón Reservation from 1852 through 1854. (TAC ¶¶ 136-168.) In 1857, the commissioner of Indian Affairs reported that five reservations including Sebastian or Tejón were formed. (TAC 198.) Between 1863 and 1866, Beale took possession of the approximately 270,-000 acres that now comprises Tejón Ranch, and includes the land covered by the original Tejon/Sebastian Reservation. (TAC ¶ 217) Approximately 380 Indians were left at the Tejón Reservation, primarily citizens of the Kawaiisu Tribe.

Plaintiffs allege that the Act of 1864 established “An Act To Provide For The Better Organization Of Indian Affairs In California.” (TAC ¶219.) The Act of 1864 authorized the president to set aside four tracts for reservations and the rest to be sold at public auction. (TAC ¶ 219.) Plaintiff alleges that the Tejón Reservation was acknowledged by Congress and was not terminated. (TAC ¶ 221-¶ 222.) Plaintiffs allege that no public sale of the Tejón Reservation was held and the defendants did not acquire land by the 1864 Act. (TAC ¶ 224.) The Tejón Defendants are currently in possession of the approximately 270,000 acres that now comprises Tejón Ranch and that they claim to have acquired the rights to the land from Beale. Plaintiffs are informed and believe and thereon allege, to the extent that any rights descending from Beale has deprived the Tribe of lands which the Tribe historically occupied or lands reserved pursuant to 1849 Treaty with the Utah and the 1853 Tejón Reservation, such deprivation is unlawful. (TAC ¶ 228.) Plaintiffs allege that in 1994, the Department of the Interior confirmed that the Kawaiisu had not been terminated. (TAC ¶ 229.) Plaintiff alleges approximately 70 allotments were taken out by Kawaiisu, beginning in or about 1893 and continuing until in or about 1964. (TAC ¶ 232.)

Plaintiff alleges that Department of the Interior, during the 1920s to 1940, built or established schools for Kawaiisu children on the Reservation. (TAC ¶¶ 136-140.) Plaintiffs also allege various other federal agencies recognize the Kawaiisu, such as the U.S. Forest Service (which consults with the Tribe regarding forestry). (TAC ¶¶ 247-249.)

F. Land Patents Under the 1851 Act (TAC ¶ 257 et seq.)

Land patents were issued and confirmed by the Land Commission pursuant to the Act of 1851. Plaintiffs allege that ultimately Beale acquired all of the land patents. (TAC ¶¶ 258-261.) Plaintiffs allege that the Tejón Defendants claim title to approximately 270,000 acres of land located in and around Kern County, California, commonly known as Tejón Ranch, based on four alleged Mexican land grants, acquired by Beale and ultimately acquired from Beale by defendants’ predecessor. Plaintiff alleges that their title in interest in the land is superior to any land grants because plaintiff rights to the land “came into existence upon the United States Senate’s ratification of the [Treaty with the Utah] on September 9, 1850.” (TAC ¶ 262(a).) Plaintiffs allege they substantially complied with the 1851 Act because they negotiated and entered into Treaty D within the 2-year time period to present claims to the Land Commission. (TAC ¶ 262(b)-(c).) Plaintiff alleges each of the four identified alleged Mexican land grants and the patents issued thereon are and were invalid because the land comprised land to which the United States had granted Plaintiffs the permanent right of occupancy pursuant to the 1849 Treaty and the establishment of the Tejón Reservation in 1853. (TAC ¶ 263.)

G. Claims against Defendants

Plaintiffs allege the following claims for relief:

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

(2) Equitable Enforcement of Treaty against Kern;

(3) Violation of the Native American Graves Protection and Repatriation Act, against Tejón Defendants;

(4) Deprivation of Property in Violation of the Fifth Amendment against Salazar;

(5) Breach of Fiduciary Duty against Salazar;

(6) Denial of Equal Protection in Violation of the Fifth Amendment against Salazar; and

(7) Non-Statutory Review against 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.1990). 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).

Plaintiffs complaint must contain “a short and plain statement of the claim showing that [Plaintiff] is entitled to relief.” Federal Rule of Civil Procedure 8(a)(2). Plaintiffs complaint is neither short nor plain. Plaintiffs complaint is 436 paragraphs and 125 pages long.

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-conelusory ‘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. 544, 127 S.Ct. 1955, 1964-65 (internal citations omitted). Although accepted as true, the “[flaetual 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, 1067 (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.CivJP. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Fundamentally, federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). Limits on federal jurisdiction must neither be disregarded nor evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). A plaintiff bears the burden to establish that subject matter jurisdiction is proper. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; see Tosco Corp. v. Communities for Better Environment, 236 F.3d 495, 499 (9th Cir.2001) (“plaintiff has burden of proving jurisdiction” to survive a F.R.Civ.P. 12(b)(1) motion to dismiss).

When addressing an attack on the existence of subject matter jurisdiction, a court “is not restricted to the face of the pleadings.” McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). 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); 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), aff'd, 56 F.3d 1177 (9th Cir.1995). “[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).

B. Plaintiffs’ Land Claims

In an expanded version of their claim to the Tejón Ranch 270,000 acres, plaintiffs claim they have “title.” Plaintiffs allege that two parcels of real property in Kern County are in dispute. The Kawaiisu claim title to approximately 270,000 acres of land that comprise the Tejón Ranch, and which Tejón Defendants also claims ownership. (See Doc. 233, Opposition p. 7; and TAC ¶¶217, 224-228, 257, 262, 283-284.) The Kawaiisu also claim superior title to the Tejon/Sebastian Indian Reservation (“Tejón Reservation”), approximately 49,000 acres as shown on the 1858 Survey of the Reservation, which constitutes a portion of Tejón Ranch, and which the Tejón Defendants also claim to own. (Doc. 233, Opposition p. 7; TAC ¶¶ 294-304.) The Kawaiisu claim title to Tejón Ranch pursuant to the Treaty with the Utah, signed on December 30, 1849, and ratified by the Senate on September 9, 1850 (9 Stat. 984), as “elucidated” by Treaty D. (TACT 89, 25; Ex. 16). In addition, the Kawaiisu claim title to the Tejón Reservation pursuant to Congress’ Act of March 3, 1853 (10 Stat. 226, 238), and the establishment of the Tejón Reservation thereafter. (TAC ¶¶ 128-133.)

1. Treaty with the Utah

As plaintiffs have alleged in the prior complaint, Plaintiffs again allege that the Treaty with the Utah granted them vast land rights as “elucidated” by Treaty D.

In the Treaty with the Utah, the Utah Indians submitted to the jurisdiction, power, and authority of the United States. The Treaty 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.) 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 them 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.

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. As the Court in Uintah Ute Indians of Utah recognized, 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 express terms of the Treaty state that “Government shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries.” The Treaty with the Utah does not establish any reservation for Indians, including plaintiffs in the instant case. It left such matters to future decision. 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 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. The Treaty did not recognize Indian title. Thus, the treaty did not establish any title or reservation to land, and the treaty did not grant title to land.

Review of the plain terms of the Treaty show that the Treaty was not self-executing. As the Supreme Court has noted, other courts of appeals have recognized this presumption that treaties generally “do not create privately enforceable rights in the absence of express language to the contrary.” Medellin v. Texas, 552 U.S. 491, 505 n. 3, 128 S.Ct. 1346, 1357 n. 3, 170 L.Ed.2d 190 (2008). Whether a treaty is self-executing depends on whether “the treaty contains stipulations which ... require no legislation to make them operative;” if so, “they have the force and effect of a legislative enactment.” Id. at 505-06, 128 S.Ct. 1346. In order to decide a dispute over whether a particular treaty is self-executing, courts “may look beyond the written words [of the treaty] to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943) (citations omitted). But even Indian treaties cannot be re-written or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties. Choctaw Nation of Indians v. U.S., 318 U.S. at 432, 63 S.Ct. at 678.

In the specific context of determining whether a treaty provision is self-executing, several factors may be referred to:

the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range consequences of self- or non-self-execution.

People of Saipan v. United States Department of Interior, 502 F.2d 90, 97 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975).

As shown from the language of the Treaty with the Utah, the government was to establish reservations in the future. “Government shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries.” The Treaty with the Utah was a future commitment to set aside land for the signatory tribes. As this Court has held in ruling on the prior motions to dismiss, the Treaty with the Utah did not grant land title or possession.

2. The Act of 1851

In these motions, as in the prior motions, the parties argue the applicability of the Act of 1851.

The Act of 1851 followed the cessation of hostilities with Mexico and which culminated in the Treaty of Guadalupe Hidalgo. The Treaty, 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) (“Act of 1851”). The Act of 1851 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 gov-eminent” to present the claim within two years. Act of 1851, 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.” Act of 1851, ch. 41, § 13. The determination by the commission as to land patents issued “shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.” Act of 1851, 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 of Guadalupe Hidalgo. 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”).

This Court, in ruling on the previous motions to dismiss and after an exhaustive review of the cases dealing with the Act of 1851 and whether “Indians” were required to file claims, held:

“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.”

(Doc. 205, January 18, 2012 Order, 838 F.Supp.2d 1006, 1019.) The Court will not repeat that analysis again, even though it is reargued by plaintiffs.

In the TAC, Plaintiffs acknowledge that land patents were issued to Tejón Defendants’ predecessor by the United States for the land at issue (as discussed more fully below). As stated in Title Insurance, the United States would have been unable to grant the land patents 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. As the Supreme Court noted, there would be “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.” Title Ins., 265 U.S. at 484, 44 S.Ct. 621. Thus, the purpose of the Board of Commissioners was to grant clear title.

This Court agrees with the argument made by the Tejón Defendants. (Doc. 221, Motion p. 9.) The Board of Commissioners granted clear title to land presented to it for resolution. If, to the contrary, the Court were to accept plaintiffs’ argument, that the Treaty of the Utah granted land rights, that Treaty would be in direct conflict with the Treaty of Guadalupe Hidalgo. In the Treaty of Guadalupe Hidalgo executed in 1948, the United States promised to honor Mexican land grants. If, however, the Treaty with the Utah, ratified in 1949, granted rights in land in California which had Mexican land grants, the United States would be unable to grant land under the Treaty of Guadalupe Hidalgo or any other authority. To accept plaintiffs argument would mean that the United States granted land to plaintiffs in executing the Treaty with the Utah in violation of the Treaty of Guadalupe Hidalgo by failing to honor Mexican land grants. To the contrary, the Board of Commissioners held that the Mexican land grants were valid and issued patents thereon.

3. Plaintiffs Argue that the Land Patents are Invalid

Plaintiffs argue that the Tejón Defendants, as successors in title, do not possess valid title because the original land patents were invalid.

As plaintiffs allege, the Tejón Defendants trace title to the Tejón Ranch from Mexican land grants. Plaintiffs acknowledge that land patents were issued to Tejón Defendant’s predecessor in interest. Plaintiffs allege, on information and belief, that the Tejón Defendants claim title to Tejón Ranch, based on four alleged Mexican land grants, for Rancho La Liebre, Rancho los Alamos y Agua Caliente, Rancho El Tejón and Rancho Castac. (TAC ¶ 257.) Plaintiffs acknowledge in the TAC, on information and belief, that the land claimed by Tejón Defendants was confirmed as patents issued to Tejón Defendant’s predecessor in interest.

The land grants were confirmed by patent and upheld in court decisions. These land patents are the predecessors in interest to the Tejón defendants. For instance, in U.S. v. Title Ins. & Trust Co, 288 F. 821 (9th Cir.1923), affirmed, U.S. v. Title Ins. & Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924), the “Tejón Indians” claimed an aboriginal right of occupancy, in land occupied in Kern County. Mexican grantees had claimed the land under the Act of 1851 and the Board of Commissioners approved the grant and it was affirmed on appeal. Title Insurance, 288 F. 821 at 823 (“On successive appeals to the United States District Court and to the Supreme Court of the United States, the board’s decision was affirmed. On May 9, 1863, a patent from the United States was issued conveying to Mexican grantees the land, which includes the Indian tract.”); see Super v. Work, 3 F.2d 90, 91 (C.E.D.1925) (.Non-mission Indians who are “merely roving bands” were required to present their claims to the claims commission), aff'd, 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128 (1926).

The purpose of the Board of Commissioners, pursuant to the Act of 1851, was to provide clear title to land. As the court in Title Ins. noted, “a claim of a right to permanent occupancy of land is one of far reaching effect ...” Title Ins., 265 U.S. at 484, 44 S.Ct. 621. The land patents were issued by the United States and pursuant to the Court’s holding Title Ins., provide clear title. Plaintiffs cannot now challenge the validity of United States issued land patents after over a century of time has elapsed. Title Ins., 265 U.S. at 486, 44 S.Ct. 621 (“Where questions arise which affect titles to land, it is of great importance to the public that, when they are once decided, they should no longer be considered open.”)

4. Treaty D, an Unratified Treaty, Does Not Grants Title

Plaintiffs again rely upon a grant of title in Treaty D. This Court has previously considered Treaty D and rejected, as a matter of law, that Treaty D granted land rights. In 1848, the United States executed the Treaty of Guadalupe Hidalgo, pursuant to which the United States promised to honor Mexican land grants. Congress established a land commission through the Act of 1851 to effectuate the Treaty of Guadalupe Hidalgo.

Treaty D was a promise by the United States to set apart “for the sole use and occupancy” 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. 3, 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. 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). The particular terms of Treaty D stated: “This treaty to be binding on the contracting parties when ratified and confirmed by the President and Senate of the United States of America.” Since Treaty D was never ratified, it cannot provide any basis for plaintiffs’ claim to land. Further, its express terms provided it had not force until it was ratified.

As noted in this Court’s prior order, the descendants of tribes in Treaty D were compensated for the failure to ratify the treaties. (See Doc. 205, January 18, 2012 Order, 838 F.Supp.2d at 1023-25.) 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 (1942), cert. denied, 319 U.S. 764, 63 S.Ct. 1324, 87 L.Ed. 1714 (1943), brought by the California Attorney General under the “Indians of California Act” of May 18, 1928, 25 U.S.C. § 651. The Indians of California Act authorized “the [A]ttorney [G]eneral of the State of California to bring suit in the Court of Claims on behalf of the Indians of California,” who were defined as “all Indians who were residing in the State of California on June 1, 1852, and their descendants now living in said State.” Indians of California by Webb, 98 Ct.Cl. 583, 585 (Ct.Cl.1942) (“[P]laintiffs, herein designated as The Indians of California, comprise all those Indians of the various tribes, bands and rancherías who were living in the State of California on June 1, 1852, and them descendants living in the state on May 18, 1928 — such definition and designation having been prescribed in the Jurisdictional Act [of 1928].”). The Indians of California 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. Indians of Cali fornia v. United States, 102 Ct.Cl. 837 (1944); Round Valley Indian Tribes, 97 Fed.Cl. at 504. Therefore, Treaty D has no force and effect and its signatories were compensated by Court judgment.

5. 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. In conjunction with Treaty D and the Treaty with the Utah, Plaintiffs have alleged facts showing how the Tejón land came to be reserved for the Kawaiisu. (TAC ¶¶ 132-135, Exhibits 19-20; See allegations of Tejón Sebastian reservation at TAC ¶¶ 114-249.) Plaintiffs allege that General Edward Fitzgerald Beale established the Tejon/Sebastian Reservation for the Kawaiisu in 1853 at the direction of Congress. Plaintiffs cite to. the Congressional Globe which refers to the Tejon/Sebastian reservation.

In their oppositions to the motions, plaintiffs did not address the lack of Presidential establishment of the Tejon/Sebastian reservation. Rather, plaintiffs state that the Tejon/Sebastian reservation “was established by Edward F. Beale, the Superintendent of Indian Affairs in California, on behalf of the United States in or about September 1853.” (Doc. 211 TAC 15, 114.) Plaintiff refers to letters between various officials regarding protection of Indians and establishing a plan for doing so and that an 1858 survey of Tejon/Sebastian was made. (TAC ¶ 133-134, 294.)

In this Court’s prior order, the Court noted the deficiency in alleging the existence of the Tejon/Sebastian Reservation. The Tejon/Sebastian Reservation was not a reservation established by the President and therefore cannot provide land rights to plaintiffs. The Court also noted that plaintiffs did not point to any executive order establishing the Tejon/Sebastian reservation as a result of the 1853 or 1855 Acts. (See Doc. 205, January 18, 2012 Order, 838 F.Supp.2d at 1025-26.)

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; See TAC ¶ 130-131. 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 allege, consistent with this Act, that the Tejon/Sebastian Reservation was established in 1953.

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 as reservations 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). See Mattz, 412 U.S. at 494, 93 S.Ct. 2245 (The 1864 Act had authorized the President to ‘set apart’ no more than four tracts for Indian reservations in California); Donnelly v. U.S., 228 U.S. 243, 258-259, 33 S.Ct. 449, 453, 57 L.Ed. 820 (1913) (“Presidents Grant, Hayes, Garfield, Arthur, Cleveland, and Harrison, successively, acted with respect to one or more of these reservations upon the theory that the Act of 1864 conferred a continuing discretion upon the Executive; orders were made for altering and enlarging the bounds of the reservations, restoring portions of their territory to the public domain, and abolishing reservations once made, and establishing others in their stead; and in numerous instances Congress in effect ratified such action.”)

In the TAC, plaintiffs allege that the “Tejón Reservation” was not abolished by the Act of 1864: “Plaintiffs are informed and believe and thereon allege, the 1864 Act did not terminate the Tejón Reservation because the Act lacked the “unequivocal language of termination” with respect to the Tejón Reservation that is required for an Indian reservation to be properly terminated.” (TAC 221-222.)

The Court does not accept as true this allegation because the allegation is not factual, and is a legal conclusion. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). The Act of 1864 states that “all acts or parts of acts in conflict with the provisions of the act, be, and the same are hereby, repealed ...” Congress also provided that “the several Indian reservations in California which shall not be retained for the purposes of Indian reservations” shall be sold. 13 Stat. 39, Sec. 3. It is difficult to determine more precise legislative language to abolish prior reservations, even assuming the reservation existed. See Mattz, 412 U.S. at 505 n. 22, 93 S.Ct. 2245 (noting that “Congress has used clear language of express termination when that result is desired,” and quoting instances where acts declared a reservation “abolished,” “discontinued,” or “vacated and restored to the public domain”). Any prior act creating a reservation was “repealed” and any existing reservations not acknowledged by the President, were to be sold. Thus, even if a Sebastian/Tejon reservation had been established in 1853, any such legislation was “repealed.”

C. Federal Recognition

Plaintiffs allege that Salazar’s failure to place the Kawaiisu on the List of Federally Recognized Tribes is wrongful. “Contrary to its historical obligations, ratified by Treaty, Defendant Salazar failed to correct the Plaintiffs’ omission from the list of acknowledged tribal entities, failed to respond to provide Plaintiffs’ with assistance in this claim against the Tejón defendants’ [sic] or to intervene to stop the Tejón Defendants’ wrongful conduct and failed to protect the tribe from the unlawful taking of their reservation.” (Doc. 235, Opposition p. 6.) Plaintiffs allege that the Tribe is a federally recognized tribe by virtue of the Act of Congress of 1855.

Salazar argues that not being placed on the List is an issue which must be pursued through the administrative process and is an otherwise non-judiciable political question.

1. 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 Interi- or tribal recognition process and special problems that existed with non-recognized tribes. Congress delegated to the Department of the Interior the authority to adopt regulations to administer Indian affairs and to clarify departmental authority by regulation under 25 U.S.C. §§ 2, 9; see James v. United States Dep’t of Health and Human Services, 824 F.2d 1132, 1137-38 (D.C.Cir.1987). As a result, in 1978, the Department of Interior exercised its delegated authority and promulgated regulations establishing a uniform procedure for “acknowledging” American Indian Tribes. 25 C.F.R. § 83.1 et seq. The Department of Interior adopted comprehensive regulations that govern its decisions concerning tribal status as set out in 25 C.F.R. Part 83 (the “acknowledgment regulations”). This part established procedures by which the DOI acknowledges that certain Indian groups exist as “tribes.” Id. § 83.2; See generally, Kahawaiolaa v. Norton, 386 F.3d 1271, 1273-74 (9th Cir.2004), cert. denied, 545 U.S. 1114, 125 S.Ct. 2902, 162 L.Ed.2d 294 (2005). Recognition “is intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present.” 25 C.F.R. § 83.3(a). The Department of Interior, the federal Bureau of Indian Affairs (“BIA”), applies its expertise to this determination and has established the Branch of Acknowledgment and Research (“BAR”) which staffs historians and anthropologists to determine whether groups seeking recognition “actually constitute Indian tribes and presumably to determine which tribes have previously obtained federal recognition.” Kahawaiolaa v. Norton, 386 F.3d at 1274.

2. The List of Federally Recognized Indian Tribe

In 1994, Congress enacted the Federally Recognized Indian Tribe List Act, Pub.L. No. 103-454, 108 Stat. 4791 (1994), which requires the Secretary of the Interior to keep a list of all federally recognized tribes, which “should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” Pub.L. No. 103^454, § 103. That statute, codified as 25 U.S.C. § 479a, defines the term “tribe” as “any Indian or Alaska Native tribe, band, nation, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian tribe.” 25 U.S.C. § 479a(2).

The Federally Recognized Indian Tribe List Act of 1994 provides Indian tribes may be recognized by alternative means: (1) an “Act of Congress;” (2) “the administrative procedures set forth in part 83 of the Code of Federal Regulations[;]” or (3) “a decision of a United States court.” Pub.L. No. 103-454, § 103(3), 108 Stat. 4791; see also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547-48 (10th Cir.2001) (citing 25 U.S.C. 479a). A recognized tribe is placed on the DOI’s “list of recognized tribes” (“The List”). 25 U.S.C. §§ 479a(3), 479a-l; 25 C.F.R. § 83.5(a).

The 1994 revised regulations, establish modified criteria for petitioning tribes that can provide substantial evidence .of “Unambiguous previous [fjederal acknowledgment.” 25 C.F.R. § 83.8(a). Under the modified criteria, a previously acknowledged tribe needp only demonstrate, inter alia, (1) that it has been identified as an American Indian entity on a substantially continuous basis “since the point of [its] last [fjederal acknowledgment,” 25 C.F.R. § 83.8(d)(1); (2) that “it comprises a distinct community at present,” 25 C.F.R. § 83.8(d)(2); and (3) that “political influence or authority is exercised within the group ... from the point of [its] last [fjederal acknowledgment to the present,” 25 C.F.R. § 83.8(d)(3).

3. Plaintiffs’ Claims Against Salazar

Plaintiffs seek relief against Salazar in the Fourth through Seventh Claims for Relief. The allegations and relief are summarized as follows. Each of plaintiffs’ claims against Salazar are predicated upon the failure of the DOI to recognize and/or “list” the Kawaiisu as a recognized Indian tribe.

In the Fourth Claim for Relief, Plaintiffs allege that Salazar is on notice that the Kawaiisu have been wrongly omitted from the list of tribal entities. (Doc. 211, TAC ¶ 341, 356.) Plaintiffs allege that they are not required to exhaust administrative remedies because of the ineffectual administrative process.

In the Fifth Claim for Rélief, Plaintiffs allege that defendant Salazar breached his fiduciary duty to plaintiffs. The breach occurred because pursuant to the Treaty with the Utah, plaintiffs’ lands, graves, and way of life were to be protected against any “cases of aggression.” Plaintiffs allege their lands and way of life has been endangered by the Tejón Defendants development and digging of the lands.

“By failing to take any action to address the situation and ensure that Plaintiffs are treated humanely, including protecting the graves of their ancestors and other cultural items, the Department of the Interior has breached its fiduciary duty owed to Plaintiffs.” (Doc. 211, TAC ¶ 379.)

In the Sixth Claim for Relief, Plaintiffs allege Denial of Equal Protection. Plaintiff allege that in 2009, Salazar added a different Tribe’s name, the “Tejón Indian Tribe” to the list of Federally recognized tribes, but failed to add the Kawaiisu to the List. Plaintiff allege that in 2012, they sent a letter to requesting being added to the List, just as the Tejón Indian Tribe had been added. (See Doc. 211, TAC ¶¶ 391-397.)

In the Seventh Claim for Relief, for “non-statutory-review,” plaintiffs allege that the Kawaiisu are a federally recognized tribe which has been omitted from the List. (Doc. 211, TAC ¶¶404, 405.) Plaintiffs allege that the DOI/BIA has failed to respond to the Tribe’s requests to protect their land and grave sites and refuses to provide assistance. Plaintiffs allege that by being left off the List of Federally Recognized Tribes, their rights under the 1994 List Act and 25 U.S.C. § 479a-l (Publication of list of recognized tribes) have been violated.

4. Sovereign Immunity of the United States

Salazar claims this Court lacks subject matter jurisdiction because Salazar has not waived sovereign immunity.

Generally, the United States and its agencies may not be sued in federal court unless Congress has waived sovereign immunity. If Congress has not waived the federal government’s immunity for a particular claim, courts lack jurisdiction over that claim and must dismiss it. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). “A mere assertion that jurisdictional statutes apply does not suffice to confer jurisdiction when, as in this case, the government did not waive its immunity.” Hughes v. United States, 953 F.2d 531, 539 n. 5 (9th Cir.1992). Sections 1331, 1353, 1361, and 1362 of Title 28 do not contain waivers of sovereign immunity. See 28 U.S.C. § 1353. Sections 28 U.S.C. §§ 1331 and 1337 are statutes of general jurisdiction, but they do not waive the United States’ sovereign immunity. Any waiver “must be construed strictly in favor of the sovereign” and “not enlarged beyond what the language requires.” United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).

a. The APA and Waiver of Sovereign Immunity for Constitutional Challenges

The Administrative Procedures Act (“APA”) generally waives the Federal Government’s immunity from a suit “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702.

Right to review of agency action:

“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.” 5 U.S.C. § 702.

“Agency action” under the APA is defined as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).

The government concedes that the APA provides a waiver of sovereign immunity in suits seeking judicial review of a federal agency action. Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir.1998). Salazar argues that the APA does not provide a waiver of sovereign immunity for plaintiffs’ claims because the claims are not constitutional claims, and are within the administrative process, where no final agency action has occurred and the Kawaiisu have abandoned the administrative process.

Plaintiffs argue that they allege constitutional challenges to Salazar’s non-action and failure to place the Kawaiisu on the List. They argue that their constitutional challenges permit suit against the United States, relying on The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-26 (9th Cir.1989).

In The Presbyterian Church v. United States, the court held that constitutional challenges to unlawful agency action fell within the section 702 waiver of immunity. The plaintiffs in Presbyterian Church alleged that their First and Fourth Amendment rights were violated when employees of various federal agencies surreptitiously recorded church services. The court rejected the government’s argument that section 702 waives immunity only for challenges involving “agency action” as that term is used in section 704. The court found that sovereign immunity was waived for the constitutional challenges raised in the case. The court pointed to the legislative history, which refers to waiving sovereign immunity in all equitable actions against the government, and it noted that the second sentence in section 702 is not, by its terms, limited to cases involving “agency action.” Accordingly, the court concluded that the waiver of sovereign immunity in section 702 encompasses constitutional challenges, and is not limited to claims challenging conduct that constitutes “agency action.” Id. at 525.

Here, however, plaintiffs’ claims are not constitutional challenges. While the claims for relief are denominated “Fifth Amendment,” “Equal Protection” and “non-statutory review,” the gravamen of the claims challenge Salazar’s non-action or failure to act in accordances with his administrative duties. Plaintiffs allege that the wrongful act was failure to place the Kawaiisu on the List of Federally Recognized tribes or to otherwise protect the Tribe’s rights in land. Plaintiffs have not cited to any authority that they have a constitutional right to be placed on the List. Their claims are not constitutional claims, but are issues within the realm of the DOI administrative duties of defendant Salazar.

b. Ex Parte Young does not Waive Immunity

Indeed, plaintiffs specifically argue they have not sought relief under the Administrative Procedures Act and proceed against DOI officials for injunctive relief under Ex Parte Young, 209 U.S. 123, 158, 28 S.Ct. 441, 52 L.Ed. 714 (1908). (Doc. 235, Opposition p. 4.)

The Ex Parte Young doctrine provides that suits against state officials to enjoin them from continuing to enforce allegedly unconstitutional state laws are not deemed against the state, and hence are not barred by the 11th Amendment. It is immaterial that the state is the real party in interest in such cases. Ex Parte Young, 209 U.S. 123, 166, 28 S.Ct. 441, 456, 52 L.Ed. 714 (1908) (state’s attorney general enjoined from enforcing unconstitutional state rate-setting scheme for railroad companies). “The Ex parte Young fiction remains the basis for prospective relief against state officers.” See E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070 (9th Cir.2010), cert. denied, — U.S. -, 132 S.Ct. 91, 181 L.Ed.2d 21 (2011). The Ninth Circuit noted that, “For a number of years, prospective relief against federal officials was available under the fiction of Ex parte Young.” E.E.O.C. v. Peabody, 610 F.3d at 1084. “However, since 1976 federal courts have looked to § 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, to serve the purposes of the Ex parte Young fiction in suits against federal officers.” E.E.O.C. v. Peabody, 610 F.3d at 1084; Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-26 (9th Cir.1989) (after § 702 was amended in 1976, it replaced the Ex parte Young fiction). Thus, the APA is the remedy for suits against federal officers for actions arising from their administrative duties. Ex Parte Young does not provide a basis for jurisdiction.

c. Ultra Vires Doctrine is Inapplicable

Plaintiffs contend that the DOI/BIA’s actions in refusing to accord the Kawaiisu status as a recognized tribe and enter it on the List of Recognized Tribes is outside the limit of the DOI/BIA’s authority imposed by the Federally Recognized Indian Tribe List Act of 1994, and is therefore ultra vires. Plaintiffs allege that Salazar, by doing so, was acting unconstitutionally by not putting the Kawaiisu on the List.

The mere allegation that the official acted wrongfully “does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign.” United Tribe of Shawnee Indians v. U.S., 253 F.3d 543, 548-549 (10th Cir.2001). The ultra vires doctrine is grounded on “the officer’s lack of delegated power.” An officer acts ultra vires when the officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. “A claim of error in the exercise of that power is therefore not sufficient.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) (The claim may be made only against the official and not against the United States, as the official was acting individually and not in his capacity as a government agent).

The claims at issue here — not placing Kawaiisu on the List and placing the “Tejón Indians” on the List — are not claims that Salazar, an official of the United States, has acted or failed to act in excess of his statutory authority. Dalton v. Specter, 511 U.S. 462, 472, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) (Executive actions in excess of statutory authority are not ipso facto unconstitutional). Salazar is empowered by the United States to administer and resolve tribal status. A typical power would encompass “putting on” and “leaving off’ tribes from the List, and resolving conflicts between similar groups, pursuant to delegation of power and regulatory authority. Salazar’s act within the realm of delegated authority is not a “constitutional” claim subject to the ultra vires doctrine.

5. The Political Question Doctrine

Salazar argues that federal recognition of an Indian tribe is committed to the Executive and presents a non-judiciable political question. Salazar argues there must “first be determination as to whether the Kawaiisu, as Plaintiffs claim, [are]the present-day continuation of a historical treaty tribe.” (Doc. 238, Reply p. 5.) “The relief Plaintiffs seek first request a declaration concerning the nature of their relationship between the Kawaiisu and the Federal Government and of any obligations the government has to the Kawaiisu.” Id.

Plaintiffs argue that the Political Question doctrine does not bar plaintiffs’ suit because: “(1) the Plaintiffs have arguably not been acknowledged as an Indian tribe by any political branch (executive or congressional) and (2)