apport and arston - turtle talk · date: june 30, 2017 time: 2:00 p.m. courtroom 8c, 8th floor...

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL

SUMMARY JUDGMENT [Case No. 5:15-cv-01538-DMG-FFM]

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LESTER J. MARSTON

California State Bar No. 081030

RAPPORT AND MARSTON

405 West Perkins Street

Ukiah, California 95482

Telephone: 707-462-6846

Facsimile: 707-462-4235

Email: [email protected]

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHEMEHUEVI INDIAN TRIBE, on its

own behalf and on behalf of its members

parens patriae, CHELSEA LYNN

BUNIM, TOMMIE ROBERT OCHOA,

JASMINE SANSOUCIE, and NAOMI

LOPEZ,

Plaintiffs,

v.

JOHN McMAHON, in his official

capacity as Sheriff of San Bernardino

County, RONALD SINDELAR, in his

official capacity as Deputy Sheriff for San

Bernardino County, MICHAEL RAMOS,

in his official capacity as the District

Attorney of San Bernardino County,

JEAN RENE BASLE, in his official

capacity as County Counsel for San

Bernardino County, and MILES

KOWALSKI, in his official capacity as

Deputy County Counsel for San

Bernardino County,

Defendants.

Case No. 5:15-cv-01538-DMG-FFM MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 30, 2017 Time: 2:00 p.m. Courtroom 8C, 8th Floor Before the Honorable Dolly M. Gee

Case 5:15-cv-01538-DMG-FFM Document 61-1 Filed 06/02/17 of 30 Page ID #:1305

i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL


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TABLE OF CONTENTS

INTRODUCTION ............................................................................................................. 1

STATEMENT OF FACTS ................................................................................................ 2

STANDARD OF REVIEW ............................................................................................... 2

ARGUMENT ..................................................................................................................... 3

I. THE RESERVATION WAS ESTABLISHED BY THE 1907 ORDER. .................. 3

II. INDIAN COUNTRY RELATES TO JURISDICTION, NOT TITLE TO LAND. .. 4

III. A TRUST PATENT IS NOT REQUIRED FOR THE ESTABLISHMENT OF A

RESERVATION. ............................................................................................................ 6

IV. THE PURPOSE OF THE PATENT PROVISION OF THE MIRA WAS NOT TO

ESTABLISH RESERVATIONS, BUT TO DETERMINE WHAT LANDS WITHIN

THE BOUNDARIES OF A RESERVATION WAS OWNED BY THE UNITED

STATE IN TRUST FOR THE TRIBE THAT WOULD LATER BE AVAILABLE

FOR ALLOTMENT. .................................................................................................... 12

V. THE ESTABLISHMENT OF THE RESERVATION BY THE1907 ORDER WAS

CONTINUOUSLY RECOGNIZED BY THE FEDERAL GOVERNMENT AND

FEDERAL COURTS FOR MORE THAN 100 YEARS BEFORE THE PATENT

WAS ISSUED. .............................................................................................................. 15

VI. A RULING THAT SECTION 36 IS NOT PART OF THE RESERVATION IS

BARRED BY FEDERAL LAW. ................................................................................. 22

VII. THE ISSUE OF THE RELEVANCE OF THE PATENT TO THE 1907 ORDER

HAS BEEN REPEATEDLY LITIGATED AND THE ORDER’S VALIDITY HAS

BEEN REPEATEDLY UPHELD. ............................................................................... 23

CONCLUSION ................................................................................................................ 24


ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL


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TABLE OF AUTHORITIES

Federal Cases

Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998) ........... 5, 25

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................................... 2

Arizona v. California, 373 U.S. 546 (1963) ..................................................................... 19

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................. 2

Chemehuevi Tribe of Indians v. United States, 14 I.C.C. 651 (1965) ............................. 18

Donnelly v. United States, 228 U.S. 243 (1913) ................................................................ 6

Duwamish et al. Indians v. United States, 79 Ct. Cl. 530 (1934) .................................... 17

Havasu Landing Homeowners Ass’n v. Babbit, 1996 U.S. App. LEXIS 1795 ............... 21

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) ......................................................... 23

Mason v. United States, 260 U.S. 545 (1923) .................................................................. 17

Mattz v. Arnett, 412 U.S. 481 (1973) ......................................................................... 20, 23

Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991)

........................................................................................................................................ 7

Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993) ................................ 6

Pechanga Band of Mission Indians v. Kacor Realty, Inc., 680 F.2d 71 (9th Cir. 1982)

............................................................................................................................... passim

Scott v. Harris, 550 U.S. 372 (2007) ................................................................................. 3

Seymour v. Superintendent, 368 U.S. 351 (1962) ............................................................ 24

Sioux Tribe v. United States, 316 U.S. 317 (1942) .................................................... 22, 23

Solem v. Barlett, 465 U.S. 463 (1983) ............................................................................. 22


iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL


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Spaulding v. Chandler, 160 U.S. 394 (1896)..................................................................... 4

U.S. v. Walker River Irrigation District, 104 F. 2d 334 (9th Cir. 1939) ...................... 4, 17

United States v. Celestine, 215 U.S. 278 (1909) ....................................................... 19, 22

United States v. Consolidated Mines & Smelting Co., Ltd., 455 F. 2d 432 (9th Cir. 1971)

........................................................................................................................................ 4

United States v. John, 437 U.S. 634 (1978) ...................................................................... 7

United States v. McGowan, 302 U.S. 535 (1938) .......................................................... 6, 7

United States v. Midwest Oil Co., 236 U.S. 459 (1915) .............................................. 4, 17

United States v. Pelican, 232 U.S. 442 (1914) .................................................................. 6

United States v. Ron Jorgensen, United States District Court Central District of

California, Case No. CV-92-3809-TJH ....................................................................... 20

United States v. Sandoval, 231 U.S. 28 (1913)............................................................ 6, 25

Wendt v. Smith, 273 F. Supp. 2d 1078 (C.D. Cal. 2003) ................................................. 21

Wilcox v. Jackson, 38 U.S. 13 Pet. 498 (1839) ................................................................ 17

Wolsey v. Chapman, 101 U.S. 755 (1879) ....................................................................... 17

United States Codes

18 U.S.C. § 1151 ....................................................................................................... passim

18 U.S.C. § 1162 ................................................................................................................ 1

25 U.S.C. § 398 .......................................................................................................... 18, 22

25 U.S.C. § 462 ................................................................................................................ 14

25 U.S.C. § 476 ................................................................................................................ 14

43 U.S.C. § 150 ................................................................................................................ 19


iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL


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Statutes At Large

26 Stat. 712 (Mission Indian Relief Act) .................................................................. passim

34 Stat. 1015 (Amendments to the Mission Indian Relief Act) ............................... passim

49 Stat. 1028 (River and Harbors Act) ............................................................................ 16

54 Stat. 744 (Parker Dam Act) ......................................................................................... 17

Regulations

Fed. R. Civ. P. 56 ............................................................................................................... 2

Other Authorities

Cohen’s Handbook of Federal Indian Law ....................................................... 5, 6, 13, 14

Anthony Madrigal, Sovereignty, Land and Water, p. 11 (2008). ...................................... 1


1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL


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INTRODUCTION

Everybody knows this is Indian land. These Hot Springs always Indian. We

cannot live anywhere else. . . . If you will not buy this place for us we will

go into the mountains like quail, and die. . . . We do not want any other

home.

Cecilio Blacktooth, Cupeño Captain of Agua Caliente, Warner’s Ranch, 1902.1

The central issue in this case is simple: Does Section 36 lie within the exterior

boundaries of the Chemehuevi Indian Reservation? Defendants have acknowledged

that, if the answer to this question is yes, then Section 36 is Indian country for the

purposes of 18 U.S.C. § 1151, and Public Law 280, 18 U.S.C. § 1162, and the operation

of motor vehicles by tribal members within Section 36 is not, therefore, subject to the

state civil/regulatory vehicle code provisions at issue in this case.2

The Court has concluded that Section 36 is within the boundaries of the

Chemehuevi Indian Reservation (“Reservation”), stating “because Section 36 falls

within the boundaries of the… Reservation, Plaintiffs have raised at least serious

questions going to the merits of their claim that Section 36 is Indian country.” August

12, 2016 Order Re Motion for Preliminary Injunction (“Order”), p. 13. The Court, at the

same time, suggested, however, that there remained some question as to whether

Section 36 is Indian country. “Plaintiffs have only raised serious questions as to whether

Section 36 is Indian country . . . ” Id. at p. 15. The Court appears to question whether

the boundaries of the Reservation were established before the trust patent for the

Reservation was issued in 2010. “Plaintiffs cite to no authority for the proposition that

1 Anthony Madrigal, Sovereignty, Land and Water, p. 11 (2008).

2 “While Defendants do not contest the assertion that enforcement of the California

Motor Vehicle Code in Indian country is unlawful, see Opp. at 1, 18, they argue that

Section 36 is not in Indian country because it is not a part of the Indian reservation.”

August 12, 2016 Order, p. 9.




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an Indian reservation’s ‘territorial boundaries’ can be established without also

establishing the reservation itself through a trust patent.” Id. at p. 11.

In this brief, Plaintiffs demonstrate that: (1) the Act of March 3, 1853 created the

Reservation, but did not define its boundaries; (2) the February 2, 1907 Order issued by

the Secretary of the Interior established the boundaries of the Reservation, which

encompass Section 36; (3) the establishment of the Reservation and its boundaries was

not dependent on the issuance of a trust patent; and (4) the history of the Chemehuevi

Indian Tribe and its Reservation reveal that Congress, the federal government, and the

federal courts have, since 1907, recognized the existence of the 1907 boundaries of the

Reservation, without the issuance of a trust patent.

The facts supporting these four conclusions are undisputed, and Plaintiffs, the

Chemehuevi Indian Tribe, Chelsea Bunim, Tommy Robert Ochoa, Jasmine Sansoucie,

and Naomi Lopez (“Tribe”) are entitled to a judgment on those issues as a matter of law.

The Tribe, therefore, moves the Court for partial3 summary judgment.

STATEMENT OF FACTS

The facts of this case are set forth in Plaintiffs’ Statement of Uncontroverted

Facts and Supporting Evidence in Support of Plaintiffs’ Motion for Partial Summary

Judgment, which are hereby incorporated by this reference as if set forth here in full.

STANDARD OF REVIEW

A court shall grant a motion for summary judgment when there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In ruling on a motion for

3 The Tribe will not address the claim that the Defendant Sheriff’s Deputies engaged in

a pattern of racial profiling in this motion because of the evidentiary requirements for

that claim and the likelihood that the Tribe would need to engage in extensive

discovery. The issues presented in this motion are straightforward and require no

discovery. For that reason, the Plaintiffs have chosen to file this motion for partial

summary judgment.




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summary judgment, a court construes the evidence in the light most favorable to the

non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380 (2007).

ARGUMENT

I.

THE RESERVATION WAS ESTABLISHED BY THE 1907 ORDER.

On February 2, 1907, the Secretary of the Interior (“Secretary”), pursuant to the

recommendations of the Commissioner of Indian Affairs, issued an order withdrawing

from settlement and entry the lands that comprise the Reservation.4 By withdrawing the

lands from settlement and setting the lands aside, the 1907 Order established the

exterior boundaries of the Reservation. Section 36 was expressly included within the

boundaries of the Reservation by the 1907 Order.

On March 1, 1907, Congress amended the Mission Indian Relief Act, 26 Stat. 712

(1891) (“MIRA”) to authorize the Secretary “to select, set apart, and cause to be

patented to the Mission Indians such tracts of the public lands of the United States, in

the State of California, as he shall find upon investigation to have been in the

occupation and possession of the . . . Mission Indians[.]” Amendments to the Mission

Indian Relief Act (“AMIRA”), 34 Stat. 1015, 1022-23 (1907).

There is no doubt that, in 1907, the President had the authority to issue orders

creating Indian reservations without Congressional authorization.

“That the power resides in the Executive from an early period in the history

of the country to make reservations has never been denied either

legislatively or judicially, but, on the contrary, has been recognized. It

constitutes in fact a part of the Land Office law, existe ex necessitate rei, as

indispensable to the public weal, and in that light, by different laws enacted

as herein indicated, has been referred to as an existing undisputed power

too well settled ever to be disputed.”

4 Plaintiffs’ Request For Judicial Notice (“Request”), p. 2, ¶ 1, Exhibit A.




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United States v. Midwest Oil Co., 236 U.S. 459, 472 (1915), citing statement of

Secretary Teller, 1 L. D., 338 (1881-3). 5 See also, Spaulding v. Chandler, 160 U.S. 394,

402-403 (1896); United States v. Consolidated Mines & Smelting Co., Ltd., 455 F. 2d

432, 442 (9th Cir. 1971).

The fact that the 1907 Order was issued prior to the passage of the amendments to

the MIRA does not affect its validity. Administrative action taken to create an Indian

reservation in anticipation of Congressional authorization is legally valid. U.S. v. Walker

River Irrigation District, 104 F. 2d 334, 338 (9th Cir. 1939) [holding that the “acts of

the heads of departments are the acts of the executive”].6 See also Midwest Oil, 236 U.S.

at 480[Executive Branch’s power to withdraw lands “in aid of pending legislation is one

that has been long recognized both in the acts of Congress and the decisions of the

court[.]”]

The fact that the Secretary issued his Order prior to the adoption of the AMIRA,

thus, does not undermine the validity of the 1907 Order. AMIRA constitutes

Congressional confirmation of the 1907 Order. Thus, there is no question that the 1907

Secretarial Order established the exterior boundaries of the Chemehuevi Indian

Reservation.

II.

INDIAN COUNTRY RELATES TO JURISDICTION, NOT TITLE

TO LAND.

5The Picket Act of 1910, 36 Stat. 847, amended in 1912, specifically described the

withdrawal authority of the President. During the early 1940s, the public land order

gradually replaced the executive order and the secretarial order as the primary

instrument for establishing an administrative withdrawal. 6 In Pechanga Band of Mission Indians v. Kacor Realty Inc., 680 F. 2d 71 (9th Cir.

1982), the Court recognized the Secretary’s authority to establish Indian reservations.

“[I]n this case, Congress authorized the Secretary to decide what land to include in the

Pechanga Band’s new reservation. The Band does not contend that Congress lacked

power to extinguish whatever rights were created by the 1882 Order, or that Congress

could not convey that power to the Secretary.” Pechanga, 680 F. 2d at 74.




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Although the term “Indian country” has been used in many senses, it is

most usefully defined as country within which Indian laws and customs

and federal laws relating to Indians are generally applicable. “Generally

speaking, primary jurisdiction over land that is Indian country rests with

the Federal Government and the Indian tribe inhabiting it, and not with the

States.”

Cohen’s Handbook of Federal Indian Law, § 3.04[1] (2015), quoting Alaska v. Native

Village of Venetie, 522 U.S. 520, 527 n.1 (1998). The concept of “Indian country,” is,

therefore, founded on jurisdiction over, not title to, land. 18 U.S.C. § 1151.

Congress was compelled to enact 18 U.S.C. § 1151, which defines “Indian

country,” as a result of the long, complicated, and disgraceful history of the federal

government setting aside land for Indian tribes and individual Indians (after having

dispossessed them of some or all of their aboriginal territory), and then permitting non-

Indian individuals and entities to use, occupy, and take title to the land reserved to

Indians and tribes. This frequently led to situations in which non-Indians, railroads,

states, and the United States owned land in fee simple within the territorial boundaries

of reservations set aside for Indians and Indian tribes.

18 U.S.C. § 1151 defines “Indian country” as:

(a) all land within the limits of any Indian reservation under the jurisdiction

of the United States Government, notwithstanding the issuance of any

patent, and, including rights-of-way running through the reservation, (b) all

dependent Indian communities within the borders of the United States

whether within the original or subsequently acquired territory thereof, and

whether within or without the limits of a state, and (c) all Indian allotments,

the Indian titles to which have not been extinguished, including rights-of-

way running through the same.

Section 1151’s three categories of Indian country reflect the fact that the land has

been reserved for the use of Indian tribes and individual Indians by the federal




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government in a variety of ways. “Congress has defined Indian country broadly to

include formal and informal reservations, dependent Indian communities, and Indian

allotments, whether restricted or held in trust by the United States.” Oklahoma Tax

Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993). “The intent of Congress, as

elucidated by [Supreme Court] decisions, was to designate as Indian country all lands

set aside by whatever means for the residence of tribal Indians under federal protection,

together with trust and restricted Indian allotments.’” Id., 508 U.S. at 125, citing

Cohen’s Handbook of Federal Indian Law 34 (emphasis added). See Donnelly v. United

States, 228 U.S. 243 (1913); United States v. Sandoval, 231 U.S. 28 (1913); United

States v. McGowan, 302 U.S. 535 (1938); United States v. Pelican, 232 U.S.442 (1914).

Section 1151 does not set forth criteria dictating how land must be set aside for

Indians or Indian tribes in order to qualify as “Indian country.” That, too, is consistent

with the Congressional purpose of the statute: to designate as Indian country all land set

aside for Indians, regardless of how it was set aside. Nor does Section 1151 require that

a patent be issued to a tribe or an individual in order for the land to qualify as “Indian

country” or a “reservation.”

III.

A TRUST PATENT IS NOT REQUIRED FOR THE

ESTABLISHMENT OF A RESERVATION.

The Supreme Court has repeatedly ruled that the creation of an Indian reservation

or other form of Indian country merely requires that there be some evidence of an

intention by Congress or the Executive Branch to set the land aside for the use and

protection of Indians.

In the present case the original reservation was Indian country simply

because it had been validly set apart for the use of the Indians as such,

under the superintendence of the Government.

United States v. Pelican, 232 U.S. at 449 (emphasis added).




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Indians in this colony have been afforded the same protection by the

government as that given Indians in other settlements known as

“reservations.” Congress alone has the right to determine the manner in

which this country’s guardianship over the Indians shall be carried out, and

it is immaterial whether Congress designates a settlement as a ‘reservation’

or “colony.”

United States v. McGowan, 302 U.S. 535, 538-39 (1938).

[T]he test for determining whether land is Indian country does not turn

upon whether that land is denominated “trust land” or “reservation.”

Rather, we ask whether the area has been “validly set apart for the use of

the Indians as such, under the superintendence of the Government.”

Oklahoma Tax Comm’n, 498 U.S. at 511, quoting United States v. John, 437 U.S. 634,

648-649 (1978).

These decisions make it clear that the issuance of a patent for reservation land is

not required in order to establish a reservation. The Court, nevertheless, appears to

question the efficacy of the 1907 Order based on the failure on the part of the United

States to issue a patent for the Reservation trust lands for more than 100 years after the

Reservation was established. The Court’s apparent reluctance to definitively conclude

that the boundaries of the Reservation were established by the 1907 Order is based on a

statement from one court decision, Pechanga Band of Mission Indians v. Kacor Realty,

Inc., 680 F. 2d 71, 74 (9th Cir. 1982): “An explicit constraint on this consummating act

was that ‘no patent shall embrace any tract or tracts to which existing valid rights have

attached in favor of any person under any of the United States laws providing for the

disposition of the public domain.” Based on this statement, the Court concluded, “Thus,

unless the Secretary issues a trust patent under MIRA to certain land, that land is not

part of the Indian reservation.” Order, p 10. Based on the fact that a trust patent for the

Reservation was not issued until 2010, the Court stated, “Section 36 is not part of the

Chemehuevi Indian Reservation.” Id. at p 12.




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In its analysis, the Court questions whether the Secretary had the authority to

create the boundaries of the Reservation without issuing a trust patent. “The Secretary’s

ability to ‘direct’ action, however, does not translate into the establishment of

reservation boundaries without a patent.” Order, pp. 10-11. The Court added:

One month after the Secretary’s February 2, 1907 Order, Congress

amended MIRA (“March 1, 1907 Act”). See 34 Stat. 1015, 1022-23. The

March 1, 1907 Act continued to ‘authorize the Secretary of the Interior to

select, set apart, and cause to be patented to the Mission Indians such tracts

of the public lands of the United States, in the State of California as he shall

find upon investigation to have been in the occupation and possession of the

several bands or villages of Mission Indians. . . .’ Id. (emphasis added).

Id. at p. 11, fn. 10.

It is unclear whether the Court questions the Secretary’s authority to select and set

aside land for a tribe, because the authorizing legislation had not yet been enacted, or

whether, because the Secretary was authorized to cause a patent to be issued, the

issuance of the patent was a necessary condition for the creation of the Reservation.

In light of the Court’s later statement: “because Section 36 falls within the

boundaries of the Chemehuevi Tribe Reservation, Plaintiffs have raised at least serious

questions going to the merits of their claim that Section 36 is Indian country,” Order, p.

13, it is unclear to Plaintiffs whether the Court’s discussion of Pechanga is intended to

demonstrate that Section 36 is not “Reservation land,” meaning part of the Tribe’s trust

land, or whether the Court is questioning whether the Reservation was properly

established before the patent was issued in 2010 and, therefore, questions whether

Section 36 is located within the boundaries of the Reservation.

The Tribe is unsure what issue remains to be resolved in order for the Court to

definitively conclude that Section 36 is within the boundaries of the Reservation.

Nothing in Section 1151 can be interpreted to require that a trust patent be issued in

order to establish a reservation that qualifies as “Indian country” or that the absence of a




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trust patent is evidence that a reservation was not properly established and does not

qualify as “Indian country.” The cases cited above addressing how Indian reservations

are established leave no room for doubt that there are many ways to establish a

reservation and that the issuance of a trust patent is not a requirement, without which, a

reservation is not a reservation. Plaintiffs’ counsel is not aware of a single decision of a

federal or state court that concluded that the issuance of a trust patent is a requirement

for the establishment of the boundaries of a reservation. The cases cited above relating

to the broad range of recognized methods for creating an Indian reservation all would

weigh against such a conclusion.

The Court’s final determination of whether the Tribe’s boundaries were

established by the 1907 Order appears to depend on whether the Pechanga decision

stands for the proposition that the issuance of a trust patent is an essential and

universally applicable requirement for the establishment of any form of “Indian

country.”

In fact, the Pechanga decision has no general application to the question of what

constitutes “Indian country.” The Pechanga case is entirely focused on the issue of title

to land. Pechanga was a quiet title action. The lawsuit centered on the Pechanga Band’s

claim to title to land located outside the boundaries of the Pechanga reservation that

was not included within the original boundaries of the reservation at the time that the

reservation was established. That land was not included within the boundaries of the

Pechanga reservation because it was the subject of a quiet title action at the time that the

reservation was established. Officials of the Department of the Interior concluded that

they could not include the land within the reservation while the issue of title was

unresolved. Pechanga did not address in any fashion the question of whether a trust

patent was necessary for the establishment of the Pechanga reservation or any other

reservation under the MIRA. Rather, it addressed whether a trust patent for a parcel of

land located outside the boundaries of the reservation established by the Executive

Order at issue in the case, was necessary to give the Pechanga Band title to the parcel.




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Perhaps most important, the Pechanga decision did not, in any fashion, address the

issue of the Pechanga Band’s territorial jurisdiction or the question of what constitutes

“Indian country.” The phrase “Indian country” is not used in the Pechanga decision, and

the Pechanga decision does not include any reference to Section 1151.

Unlike the Pechanga case, the issues in this case do not arise from a quiet title

action. Title to land is not at issue in this case. Title to land located outside the

boundaries of the Reservation is not at issue in this case. A dispute about whether land

included within the proposed boundaries, but not the final boundaries, of the reservation

because it had been granted to individuals before the land was ever set aside for the use

of a tribe, as was the case in Pechanga, is not at issue in this case.

Pechanga does not support the proposition that the issuance of a trust patent is

either a precondition for, or an essential element of, the establishment of the boundaries

of a reservation. Pechanga does not support the proposition that, without the issuance of

a trust patent, the establishment of the Pechanga reservation is invalid or ineffective.

On the contrary, the Pechanga court acknowledged the distinction between the

establishment of reservations pursuant to the MIRA and the issuance of a trust patent for

the land:

Because the constantly-changing reservation sites under the 1864 Act

proved unsatisfactory, Congress enacted the Mission Indians Relief Act,

ch. 65, 26 Stat. 712 (1891). . . . The 1891 Act empowered the Secretary of

the Interior to oversee the establishment of new, more secure reservations.

The first step in the process was for him to appoint commissioners to

propose reservation sites. Their selection became “valid when approved by

the President and the Secretary of the Interior.” The Act instructed the

Secretary that “if no valid objection exists, (he) shall cause a patent to issue

for each of the reservations selected by the commission.” An explicit

constraint on this consummating act was that “no patent shall embrace any

tract or tracts to which existing valid rights have attached in favor of any




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person under any of the United States laws providing for the disposition of

the public domain.”

Pechanga, 680 F. 2d at 73-74.

The phrase “consummating act” must be understood in the context of the issue

before the court: what land was encompassed by the trust patent that was issued to the

Pechanga Band and whether the Pechanga Band was entitled to receive title to land that

was originally to be made part of the Pechanga reservation, but was not, in the end,

made a part of the reservation because of the quiet title action. The “consummating act”

that the court refers to is the granting of title to the reservation land to the United States

in trust for the Pechanga Band. The Pechanga court did not and had no reason to address

the question of what actions are required in order to establish “Indian country.”7

Moreover, the specific caveat in the MIRA relied on by the Pechanga court, “no

patent shall embrace any tract or tracts to which existing valid rights have attached in

favor of any person under any of the United States laws providing for the disposition of

the public domain,” Pechanga, 680 F.2d at 73 n.3 (emphasis added), is not applicable to

this case. That provision relates to Congress’ intention to protect the interests of

individuals in real property. It did not apply to grants of title to land to a state. The

Pechanga case revolved around that provision because individuals claimed an interest in

the land that was excluded from the final trust patent as a result of the quiet title action

that arose from the claim of those individuals. Thus, even if the issue in this case related

to title to land, the Pechanga court’s analysis would not apply because the property

interest at stake is different (individual versus state) and the critical provision of the

7 In Pechanga the exterior boundaries of the reservation created by the Executive Order

withdrawing the reservation land were identical to the boundaries of the Pechanga’s

trust land set forth in the trust patent. Therefore, exclusion of the disputed parcel from

the patent did not take the property in trust for Pechanga thereby making it a part of the

reservation. That is not the case here. Here, the boundaries of the Reservation are

different from the boundaries of the Tribe’s trust land, as evidenced by the boundaries

of the trust land that is located within the territorial boundaries of the Reservation.




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MIRA that the Pechanga court relied on would not apply to any interest at stake in this

case. See, Plaintiffs’ Reply To Defendants’ Supplemental Opposition To Plaintiffs’

Motion For Preliminary Injunction, ECF, Docket No. 26, p. 17.

Finally, as will be discussed in the next section, the conclusion that the patenting

provisions of the MIRA were essential to the establishment of the Reservation conflict

with the plain wording and purpose of the MIRA.

IV.

THE PURPOSE OF THE PATENT PROVISION OF THE MIRA

WAS NOT TO ESTABLISH RESERVATIONS, BUT TO

DETERMINE WHAT LANDS WITHIN THE BOUNDARIES OF A

RESERVATION WERE OWNED BY THE UNITED STATES IN

TRUST FOR THE TRIBE THAT WOULD LATER BE AVAILABLE

FOR ALLOTMENT.

The provisions of the MIRA providing for the issue of patents for reservations

must be understood it the context of the federal government’s late Nineteen-early

Twentieth century policy of breaking up reservations by issuing allotments to individual

Indians for the purpose of assimilating Indians into white society.

The theme of Indian policy for the remainder of the nineteenth [after the

Civil War] and first quarter of the twentieth century was “civilization and

assimilation.” At the heart of this policy was legislation providing for the

acquisition of Indian lands and resources. . . .

The General Allotment Act (GAA) of 1887, commonly referred to as the

Dawes Act, was a comprehensive congressional attempt to change the role

of Indians in American society. Tribal members under the Act surrendered

their undivided interest in the tribally owned common or trust estate for a

personally assigned divided interest, generally held in trust for a limited

number of years, but “allotted” to them individually. . . .

In 1887, when the Dawes Act provided for allotting tribal lands to

individual Indians, the American Indian’s heritage in land totaled 138




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million acres. Less than 50 years later, when the allotment policy was

abandoned, only 48 million acres were left in Indian hands.

Cohen’s Handbook of Federal Indian Law, § 1.04.

The significance of the authorization to the Secretary to issue trust patents for

land reserved under the MIRA was not to confirm the establishment of each reservation,

it was to further the policy of allotment. The patents were to create the tribes’ beneficial

title to the land, which was to be held by the federal government for 25 years, at which

point the land’s trust status was to be terminated and the land allotted to the tribes in fee:

That the commissioners, upon the completion of their duties, shall report

the result to the Secretary of the Interior, who, if no valid objection exists,

shall cause a patent to issue for each of the reservations selected by the

commission and approved by him in favor of each band or village of

Indians occupying any such reservation, which patents shall be of the legal

effect, and declare that the United States does and will hold the land thus

patented . . . for the period of twenty-five years, in trust, for the sole use

and benefit of the band or village to which it is issued, and that at the

expiration of said period the United States will convey the same or the

remaining portion not previously patented in severalty by patent to said

band or village, discharged of said trust, and free of all charge or

incumbrance whatsoever; . . .

MIRA, Section 3.

The provision of the MIRA directing the Secretary to issue patents for

reservations established pursuant to the MIRA was not intended to be a precondition or

essential element of the establishment of reservations. It was intended as the first step in

the destruction of the affected tribes and their reservations through allotment. The policy

of allotment and assimilation was later repudiated by Congress. Cohen’s Handbook of

Federal Indian Law, § 1.05. This shift in federal policy away from allotment and

assimilation is one of the reasons the Department of the Interior offered as to why a trust




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patent for the Chemehuevi’s Reservation trust lands had not been and should not be

issued—it was irrelevant, since the federal government had long abandoned the policy

of allotment:

[T]he purpose of the trust patent was to divide the land allot it to

individuals members of the band or village. Then, at the end of the trust

period, the remaining lands, if any, were to be conveyed in fee simple to

the band or village. The allotment policy was repudiated by Congress in

Section 1 of the Indian Reorganization Act. . . . In addition, Section 2 to the

IRA extended indefinitely all periods of trust—thus, no fee patents have

been issued. 25 U.S.C. 462. Finally, section 16 of the IRA recognized that

tribes are the actual owners of their land and that they clearly have a

compensable interest in their lands. 25 U.S.C. 476. Thus, the original

purpose of the MIRA has been changed by history and subsequent

legislation and issuance of a trust patent at this time will serve no real

purpose.

August 20, 1990 Opinion of Field Solicitor Fritz L. Goreham, p 5.8

In an earlier Solicitor’s Opinion, the Department questioned whether the patent

would be consistent with the Tribe’s long recognized title:

The Chemehuevis have, rather, been recognized to have far greater title

than can be granted by a patent. A patent is, in effect, no greater than a

quit-claim deed. It would recognize title only from the date of the patent.

The Chemehuevi Reservation has been recognized by the Secretary of the

Interior in the 1907 Withdrawal order, in the 1939 decision cited above, [57

I.D, 87, supra] by approval of the Tribal constitution, by the Restoration

order of October 15, 1974, and in countless ways throughout the years such

8 A true and correct copy of the August 20, 1990 Opinion of Field Solicitor Goreham is

attached to the Request, p. 2, ¶ 1, Exhibit B.




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as in requests for appropriations, approval of leases, loans, rights of way,

etc. It has been recognized by Congress in the Act of July 8, 1940 and, by

reference thereto, in the Indian Claims Commission as evidence by the

final judgment in Docket 351, dated January 18, 1965. It has been

recognized by the Supreme Court in Arizona-v-California. The Tribe has

aboriginal rights to its reservation recognized by all branches of the

government. A patent would evidence nothing but a recent acquisition by

the grace of the government.

Memorandum of Phoenix Area Director, Walter R. Mills, dated August 21, 1985, pp. 1-

2.9

Thus, the patenting provisions set forth in the MIRA were not necessary for or

even intended to be related to the establishment of the Reservation and its boundaries.

As will be demonstrated in the next section, the irrelevance of the patenting provisions

is reflected in the unbroken recognition of the establishment and existence of the

Reservation.

V.

THE ESTABLISHMENT OF THE RESERVATION BY THE 1907

ORDER WAS CONTINUOUSLY RECOGNIZED BY THE

FEDERAL GOVERNMENT AND FEDERAL COURTS FOR MORE

THAN 100 YEARS BEFORE THE PATENT WAS ISSUED.

The establishment of the Reservation pursuant to the 1907 Order and the AMIRA

has been acknowledged by the Congress and the Department of the Interior since 1907.

In 1935, Congress authorized the President to take the necessary action to build the

Parker Dam, including “the reclamation of public lands and Indian reservations.” Rivers

9 A true and correct copy of the Memorandum of Phoenix Area Director, Walter R.

Mills, dated August 21, 1985 is attached to the Request, p. 2, ¶ 1, Exhibit C.




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and Harbors Act of August 30, 1935, 49 Stat. 1028 (1935).10

In 1940, Congress enacted

the Parker Dam Act,11

which provided:

in aid of the construction of the Parker Dam project, authorized by the Act

of August 30, 1935 (49 Stat . 1028), there is hereby granted to the United

States, its successors and assigns, subject to the provisions of this Act, all

the right, title, and interest of the Indians in and to the tribal and allotted

lands of . . . the Chemehuevi Reservation in California as may be

designated by the Secretary of the Interior.

54 Stat. 744, § 1 (1940)(emphasis added).

The Parker Dam Act also required the Metropolitan Water District (“MWD”) to

pay for the inundated Chemehuevi Reservation land. Id., § 2. In 1939, the Department

of the Interior issued a Solicitor’s opinion12

addressing MWD’s claim that it was not

required to pay for some of the land that was reclaimed from the Tribe in order to

develop the Parker Dam project, because certain lands were withdrawn for the project

before the 1907 Order was issued. The Solicitor rejected those claims and, in doing so,

repeatedly confirmed the establishment of the Reservation by the 1907 Order and the

Tribe’s right of use and occupancy of the land that predated any non-Indian title.

In the instant case, the Indian rights of use and occupancy are not indefinite

nor incapable of proof. The order of February 2, 1907, marked off the area

claimed and recognized and confirmed the Indian title thereto. While the

Chemehuevi Indians were never parties to a treaty with the United States

and have not been the beneficiaries of any special acts of Congress

10

A true and correct copy of the River and Harbors Act, 49 Stat. 1028 (1939) is attached

to the Request, p. 2, ¶ 1, Exhibit D. 11

A true and correct copy of the Act for the Acquisition of Indian Lands for the Parker

Dam Project (“Parker Dam Act”), 54 Stat. 744 (1940) is attached to the Request, p. 2, ¶

1, Exhibit E. 12

The Solicitor’s Opinion was issued as an “M” opinion and therefore is the official

position of the Department of the Interior and binding on the Department.




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recognizing their interests in the lands here involved, the action of the

Department in approving the setting aside of the lands for them was, in my

opinion, sufficient clearly to differentiate the Duwamish case [Duwamish et

al. Indians v. United States, 79 Ct. Cl. 530 (1934)] from the present

controversy. The authority of the President to create by Executive order

Indian reservations in all respects similar to reservations created by treaty

or act of Congress is too well established to require argument (34 Op. Atty.

Gen. 171, 176; United States v. Midwest Oil Company, 236 U.S. 459;

Mason v. United States, 260 U.S. 545). In this case the order of the

Secretary of the Interior is to be deemed the act of the President (United

States v. Walker River Irrigation District, 104 F. 2d 334; Wilcox v.

Jackson, 13 Pet. 498, 513; Wolsey v. Chapman, 101 U.S. 755, 769; 45 L.D.

502), effectively confirming the Indians’ right to the lands.

“Obligation of the Metropolitan Water District of Southern California for Damages to

Lands of Chemehuevi Indians,” 57 I.D. 87, 92 (1939) (“1939 Opinion”).

The 1939 Opinion underscored the fact that the Tribe’s rights arising from the

1907 Order gave rise to trust obligations on the part of the federal government. “In

refusing to recognize the rights of use and occupancy which were possessed by the

Chemehuevi Indians at the time of the reclamation withdrawals and were confirmed by

the order of February 2, 1907, the Department would be guilty of a breach of good faith

in view of the settled governmental policy of respecting such rights.” Id. at 91.

The 1939 Opinion does not include any discussion of a need for a patent to

confirm the establishment of the Reservation, or any other ground for questioning that

the 1907 Order established the Reservation. The Reservation was “in all respects similar

to reservations created by treaty or act of Congress.” 1939 Opinion at 13. The entire

opinion is founded on the validity of the 1907 Order’s establishment of the Reservation,

based on the Tribe’s right to use and occupy the Reservation that predated the 1907




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Order. No trust obligations would arise from the 1907 Order if it was invalid or

ineffective pending the issuance of a patent.

The establishment of the Reservation pursuant to the 1907 Order was

subsequently confirmed when the Tribe was later awarded compensation for the value

of the land flooded by the Parker Dam project. Chemehuevi Tribe of Indians v. United

States, 14 I.C.C. 651 (1965).13

In 1974, the Department of the Interior, through its solicitor, again acknowledged

that the 1907 Order established the Reservation. “The Chemehuevi Reservation was

established in 1907 on the ancestral homelands of the Chemehuevi Indians . . . .” 2

DOINA 2071, 1974 DOINA LEXIS 47 (August 15, 1974).14

That opinion further

concluded that the boundaries of the Reservation were not diminished by the taking of

title to Reservation land pursuant to the Parker Dam Act and that the return of title to the

Shoreline Strip (which was created when the water level of Lake Havasu did not rise to

the level expected by the Army Corp or Engineers) to the Tribe did not constitute

Secretarial action would be barred by statutes such as 25 U.S.C. § 398d or 43 U.S.C. §

150, which impose restrictions with respect to actions affecting Indian reservations.

“[J]ust as the original designation affected only title to land within the Chemehuevi

13

Under the Parker Dam Act the Secretary designated those lands within the

Reservation that were needed for the Parker Dam Project. MWD was required by the

Secretary to prepare a map showing the lands so designated. The map prepared by

MWD showed Section 36 as part of the Reservation and within the boundaries of the

Reservation. A true and correct copy of the MWD map is attached to the Request, p. 2, ¶

1, Exhibit F. A true and correct copy of the Indian Claims Commission’s Findings of

Fact and Conclusions of Law, Opinion, and Judgment is attached to the Request, p. 2, ¶

1, Exhibit G. 14

On January 18, 2001, then Solicitor of the U.S. Department of the Interior issued an

opinion, M-37003, titled “Binding Nature of Solicitor’s M-Opinions on the Office of

Hearings and Appeals.” That opinion made clear that revisions proposed by the

previous Solicitor did “not include the authority to overrule or modify Solicitor’s M-

Opinions.” The Opinion also stated, “Furthermore, M-Opinions do not require the

Secretary’s concurrence to bind OHA.”




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Reservation and did not change the Reservation’s boundaries, . . . so too the

redesignation would work no boundary change; it would merely confirm equitable title

in the Chemehuevis to the lands in question.” Id., 1974 DOINA LEXIS 47 at 11, citing

United States v. Celestine, 215 U.S. 278, 285 (1909). In rejecting the argument that

returning title to the land would violate 43 U.S.C. § 150, Solicitor David E. Lindgen

stated that redesignating the land as tribal trust land, “would have to do with title, as

indicated above, and would not affect the existence or extent of the Reservation.” Based

on that opinion, in 1974, the federal government restored title to the Shoreline Slip to

the Tribe. 1974 Restoration Order.15

The creation of the Havasu National Wildlife Refuge, in which the title to another

portion of the Tribe’s trust land was taken by the federal government, required the

Department of the Interior to address the question of whether the boundaries of the

reservation had been diminished. See July 23, 1992 letter from Department of the

Interior Assistant Solicitor Scott Keep to Captain Mike McBride and Lester Marston, p.

2. A true and correct copy of the July 23, 1992 Solicitor Keep letter is attached to the

Request, p. 2, ¶ 1, Exhibit H, [“It is . . . our opinion . . . that neither the United States

acquisition of reservation lands for the Parker Dam and Reservoir project, nor the

establishment of the Havasu National Wildlife Refuge . . . altered or diminished the

eastern boundary of the Chemehuevi Indian Reservation.”]. Of course, the need to

address whether the creation of the refuge diminished the boundaries of the Reservation

presupposes the existence of the Reservation.

If there was any doubt that the 1907 Order created the Reservation and

established its boundaries16

that doubt was laid to rest by the United States Supreme

Court’s decision in Arizona v. California, 373 U.S. 546 (1963).

15

A true and correct copy of the Restoration Order is attached to the Request, p. 1, ¶ 2,

Exhibit I. 16

The issuance of the trust patent to the Tribe expressly recognizes the continued

existence of the Reservation and the fact that the Reservation was created by the 1907




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Congress and the Executive have ever since recognized these as Indian

Reservations. Numerous appropriations, including appropriations for

irrigation projects, have been made by Congress. They have been

uniformly and universally treated as reservations by map makers, surveyors

and the public. We can give short shift at this late date to the argument

that the reservations either of land or water are invalid because they

were originally set apart by the Executive.

Id. at 598 (emphasis added). See id. at 596, fn. 100 [“The Chemehuevi Reservation was

established by the Secretary of the Interior on February 2, 1907, pending congressional

approval.”]; Mattz v. Arnett, 412 U.S. 481, 505-506 (1973) [holding continuous

recognition of the existence of a reservation by the Federal government evidence that

the reservation was lawfully established and its boundaries not diminished].

The Department of the Interior’s failure to issue a trust patent for the Reservation

has been the basis for repeated attempts by non-Indians, including the San Bernardino

Sheriff’s Department to challenge the validity of the establishment of the Reservation

and/or the Tribe’s jurisdiction over the Reservation. The Tribe has spent years fending

off those challenges, to its enormous frustration and cost. Declaration of Lester J.

Marston in Support of Plaintiffs’ Motion for Partial Summary judgment (“Marston II

Declaration”), pp. 2-3, ¶ 8. For the purposes of this litigation, however, that litigation

provides compelling support for the conclusion that the 1907 Order established the

Reservation and its boundaries.

In United States v. Ron Jorgensen, United States District Court Central District of

California, Case No. CV-92-3809-TJH, this Court, in its Statement of Uncontroverted

Facts and Conclusion of Law (“Conclusion”), entered before the 2010 Patent was

issued, held that the Reservation was established by virtue of the 1907 Order. A true

Order. The patent states: “WHEREAS, there has been deposited in the Bureau of Land

Management an order of the Secretary of the Interior dated February 2, 1907,

withdrawing from settlement and entry the following described land: . . .”




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and correct copy of the Conclusion is attached to the Request, p. 2, ¶ 1, Exhibit J. There

the Court found that:

As the Court has found, the Chemehuevi Indian Reservation was

established by duly authorized Secretarial order of February 2, 1907. The

power of the executive branch to establish Indian reservations by Executive

Order, as was done in this case, has been unequivocally sustained by the

United States Supreme Court. See e.g. Arizona v. California, 373 U.S. 546,

598…(1963). Defendants’ arguments to the contrary not withstanding, this

Court finds that the Chemehuevi Indian Reservation . . . is a duly authorized

Indian reservation held in trust by the United States of America for the

Chemehuevi Indian Tribe.

Conclusions, p. 6, ¶ 2, attached as Exhibit J to the Request, p. 2, ¶ 1.17

The foregoing makes two facts indisputable. The federal government recognized

that the Chemehuevi Indian Reservation was established by the 1907 Order for more

than 100 years before the trust patent for the Reservation was issued. Second, the

federal government has recognized since 1974, if not earlier, that the existence of land

within the boundaries of the Reservation, the title to which is not held in trust for the

Tribe, does not change the boundaries of the Reservation. There is no judicially

cognizable basis for concluding that the 1907 Order did not establish the Reservation

and its boundaries.

The fact that the Department of the Interior failed to meet its obligation to issue

the trust patent for close to 100 years, dragged its feet for twenty-two (22) years when

the Tribe requested that a patent be issued, and only issued the patent after the Tribe had

filed suit to compel the Department of the Interior to issue the patent is not evidence that

17

See also, Havasu Landing Homeowners Ass’n v. Babbit, 1996 U.S. App. LEXIS

1795, 5-6; Wendt v. Smith, 273 F. Supp. 2d 1078, 1083-1084 (C.D. Cal. 2003)

(providing a chronology of the cases that involved challenges to the lawful creation of

the Reservation).




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the Reservation was not established by the 1907 Order. It is evidence that the

Department of the Interior failed in its trust duty to the Tribe to issue a deed to its trust

lands within the boundaries of the Reservation for the purpose of making it clear that the

Reservation was created pursuant to Congressional authorization, the MIRA.18

Because there is no doubt that the Reservation was established by the 1907 Order,

the Court is compelled to recognize that the boundaries of the Reservation are those

established in the 1907 Order. The Order’s legal description of the Reservation includes

Section 36. Thus, Section 36 is “Indian country” within the meaning of Section 1151.

VI.

A RULING THAT SECTION 36 IS NOT PART OF THE

RESERVATION IS BARRED BY FEDERAL LAW.

Moreover, because Section 36 was included within the boundaries of the

Reservation by the 1907 Order, the Defendants’ challenge is barred by federal law, as it

would constitute an attempt to diminish the boundaries of the Reservation. Such a

diminishment can only be accomplished through an act of Congress. “Changes in the

boundaries of reservations created by Executive order, proclamation, or otherwise for

the use and occupation of Indians shall not be made except by Act of Congress.” 25

U.S.C. § 398d. Section 398d embodies a long held principle of federal law. “[O]nly

Congress can divest a reservation of its land and diminish its boundaries. Once a block

of land is set aside for an Indian reservation and no matter what happens to the title of

individual plots within the area, the entire block retains its reservation status until

Congress explicitly indicates otherwise.” Solem v. Barlett, 465 U.S. 463, 470 (1983)

(emphasis added). Accord, United States v. Celestine, 215 U.S. 278, 285 (1909) [“when

18

The Tribe filed its action against the United States to compel the issuance of a patent

to prove that the Tribes trust lands were acquired pursuant to the MIRA, which is

essential to prove that the Tribe has a compensable interest in its Reservation trust land.

Marston II Declaration, p. 3, ¶ 10. See also, Sioux Tribe v. United States, 316 U.S. 317

(1942)(holding no compensable interest in Executive Order Reservation).




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Congress has once established a reservation all tracts included within it remain a part of

the reservation until separated therefrom by Congress.”]; Mattz v. Arnett, 412 U.S. 481,

504-505 (1973) [same]. See also, Opinion of the Solicitor, Authority of Secretary To

Determine Equitable Tribe To Indian Lands, 1974 DOINA LEXIS 47.

VII.

THE ISSUE OF THE RELEVANCE OF THE PATENT TO THE

1907 ORDER HAS BEEN REPEATEDLY LITIGATED AND THE

1907 ORDER’S VALIDITY HAS BEEN REPEATEDLY UPHELD.

A conclusion by this Court that a patent was an essential element of the

establishment of the Reservation would extend the maddening cycle of barriers to

finally putting the issue of the validity of the establishment of the Reservation to rest.

During the twenty-two years that the Tribe sought a trust patent for the Reservation, the

federal government repeatedly informed the Tribe that the issuance of a patent was not

necessary for the Tribe to demonstrate the existence of the Reservation or the Tribe’s

beneficial title to its trust lands within the Reservation.

The Tribe did not seek the trust patent to establish the Reservation. The relevance

of a patent is that it is a deed that conveys title to land set aside for an Indian tribe

pursuant to Congressional authorizations, which is important to ensure that the Tribe

had evidence to demonstrate that it had a compensable interest in its trust land. Sioux

Tribe v. United States, 316 U.S. 317 (1942); Hynes v. Grimes Packing Co., 337 U.S. 86,

103 (1949). It was also important because it could be cited to when yet another person,

entity, or local government, like the County,19

concluded that she or they or it would

benefit from challenging the existence of the Reservation because a patent had not been

19

In 1956, when the County was applying to the Secretary and the Tribe for a right of

way for Havasu Lake Road through the Reservation, the County conceded that Section

36 was within the boundaries of the Reservation. To obtain the right of way, the County

was required to prepare a map showing the location of the road within the Reservation.

The County prepared the map and on the map depicted Section 36 as being within the

boundaries of the Reservation. A true and correct copy of the 1956 County right of way

map is attached to the Request, p. 2, ¶ 1, Exhibit I.




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issued. But this litigation is proof that even the issuance of the patent does not

discourage those who find it convenient or rewarding to challenge the Tribe’s

jurisdiction and its authority to govern itself and protect its members. The Secretary’s

illegal conduct in failing to issue the trust patent in 1907, as required under the AMIRA,

should not now be used against the Tribe to deprive it of its “Indian country” as

established by the 1907 Order.

CONCLUSION

A conclusion that County law enforcement officials have jurisdiction over

Section 36 is unwarranted. It would conflict with over 100 years of federal actions based

on the validity and effect of the 1907 Order. All parties to this litigation will benefit

from the Court’s acknowledgement that Section 36 is Indian country. It will eliminate

precisely the jurisdictional imbroglio that Section 1151 was enacted to avoid—law

enforcement officers being forced to search tract books in order to determine whether

jurisdiction over each and every offense, even though committed within a reservation, is

in the State, the Tribe, or the federal government. This is what Congress intended when

it eliminated the impractical effects of checkerboard jurisdiction through the enactment

of Section 1151. There is “no justification for adopting an unwarranted construction” of

the 1907 Order, “where the result would be merely to recreate confusion Congress

specifically sought to avoid.” Seymour v. Superintendent of Washington State

Penitentiary, 368 U.S. 351, 358 (1962).

Equally important, this litigation opened a very old and very deep wound. Any

suggestion by this Court that the Reservation was not properly established until 2010

would reaffirm tribal members’ conviction that, no matter how many times the federal

government and federal courts recognize the valid establishment of the Reservation, yet

another non-Indian person, entity, or state official will be permitted to threaten the

validity of the Reservation. It would also stoke the fires of anti-Indian groups that

continue to seek the destruction of the Tribe and its Reservation.




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And to what end has this scab been ripped open? To back up County law

enforcement officers who, without jurisdiction, stopped indigent Indian people and

deemed it appropriate to impound the tribal members’ vehicles, leave them stranded on

the side of the road, and force them to attend court proceedings hours from their homes.

Whether these indignities were inflicted in a sincere, if misguided and legally

insupportable, effort to carry out the officers’ duties or because of a primitive impulse to

exert power over powerless people of a different race need not be determined at this

time. But those actions must be prohibited immediately and permanently.

It is of existential significance to the Tribe that the Court recognize, as the federal

government and other federal courts have done, that the Reservation was created by the

1907 Order and that County law enforcement officials lack civil regulatory jurisdiction

over Section 36 because it is “Indian country.”20

For these reasons and the reasons stated above, the Court should grant the Tribe’s

motion for partial summary judgment and declare that Section 36 lies within the

boundaries of the Tribe’s Reservation and is, therefore, the Tribe’s “Indian country.”

DATED: June 2, 2017 Respectfully Submitted,

RAPPORT AND MARSTON

By: /s/ Lester J. Marston

LESTER J. MARSTON

Attorney for Plaintiffs

20

Even assuming for argument’s sake that the issuance of the patent in 2010 formally

created the Reservation, and it did not, all of the land within the boundaries of the 1907

Order would still be “Indian country” because the land would qualify as a “dependent

Indian community” within the meaning of 18 U.S.C. § 1151. Dependent Indian

communities are Indian country regardless of whether or not they are located within a

recognized reservation. United States v. Sandoval, 231 U.S. 28 (1913). To find that a

tribe is a “dependent Indian community,” all that is required is that the land be set aside

for the use of Indians and that the land (not merely the tribe) must be under the

superintendence of the federal government. Alaska v. Native Village of Venetie Tribal

Government, 522 U.S. 520, 532-533 (1998). Clearly, the Tribe’s Reservation meets both

of these requirements.


apport and arston - turtle talk · date: june 30, 2017 time: 2:00 p.m. courtroom 8c, 8th floor...

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