UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 LESTER J. MARSTON California State Bar No. 000 RAPPORT AND MARSTON 0 West Perkins Street Ukiah, California Telephone: 0-- Facsimile: marston@pacbell.net Attorney for Plaintiffs 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, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiffs, 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. :-cv-0-dmg-ffm MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT Date: June 0, 0 Time: :00 p.m. Courtroom C, th Floor Before the Honorable Dolly M. Gee SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

2 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 TABLE OF CONTENTS INTRODUCTION... STATEMENT OF FACTS... STANDARD OF REVIEW... ARGUMENT... I. THE RESERVATION WAS ESTABLISHED BY THE 0 ORDER.... II. INDIAN COUNTRY RELATES TO JURISDICTION, NOT TITLE TO LAND... III. A TRUST PATENT IS NOT REQUIRED FOR THE ESTABLISHMENT OF A RESERVATION.... 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.... V. THE ESTABLISHMENT OF THE RESERVATION BY THE0 ORDER WAS CONTINUOUSLY RECOGNIZED BY THE FEDERAL GOVERNMENT AND FEDERAL COURTS FOR MORE THAN 00 YEARS BEFORE THE PATENT WAS ISSUED.... VI. A RULING THAT SECTION IS NOT PART OF THE RESERVATION IS BARRED BY FEDERAL LAW.... VII. THE ISSUE OF THE RELEVANCE OF THE PATENT TO THE 0 ORDER HAS BEEN REPEATEDLY LITIGATED AND THE ORDER S VALIDITY HAS BEEN REPEATEDLY UPHELD.... CONCLUSION... i SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

3 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 Federal Cases TABLE OF AUTHORITIES Alaska v. Native Village of Venetie Tribal Government, U.S. 0 ()..., Anderson v. Liberty Lobby, Inc., U.S. ()... Arizona v. California, U.S. ()... Celotex Corp. v. Catrett, U.S. ()... Chemehuevi Tribe of Indians v. United States, I.C.C. ()... Donnelly v. United States, U.S. ()... Duwamish et al. Indians v. United States, Ct. Cl. 0 ()... Havasu Landing Homeowners Ass n v. Babbit, U.S. App. LEXIS... Hynes v. Grimes Packing Co., U.S. ()... Mason v. United States, 0 U.S. ()... Mattz v. Arnett, U.S. ()... 0, Oklahoma Tax Comm n v. Citizen Band Potawatomi Indian Tribe, U.S. 0 ()... Oklahoma Tax Comm n v. Sac & Fox Nation, 0 U.S. ()... Pechanga Band of Mission Indians v. Kacor Realty, Inc., 0 F.d (th Cir. )... passim Scott v. Harris, 0 U.S. (00)... Seymour v. Superintendent, U.S. ()... Sioux Tribe v. United States, U.S. ()..., Solem v. Barlett, U.S. ()... ii SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

4 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 Spaulding v. Chandler, 0 U.S. ()... U.S. v. Walker River Irrigation District, 0 F. d ( th Cir. )..., United States v. Celestine, U.S. (0)..., United States v. Consolidated Mines & Smelting Co., Ltd., F. d (th Cir. )... United States v. John, U.S. ()... United States v. McGowan, 0 U.S. ()..., United States v. Midwest Oil Co., U.S. ()..., United States v. Pelican, U.S. ()... United States v. Ron Jorgensen, United States District Court Central District of California, Case No. CV--0-TJH... 0 United States v. Sandoval, U.S. ()..., Wendt v. Smith, F. Supp. d 0 (C.D. Cal. 00)... Wilcox v. Jackson, U.S. Pet. ()... Wolsey v. Chapman, 0 U.S. ()... United States Codes U.S.C.... passim U.S.C.... U.S.C...., U.S.C.... U.S.C.... U.S.C iii SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

5 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 Statutes At Large Stat. (Mission Indian Relief Act)... passim Stat. 0 (Amendments to the Mission Indian Relief Act)... passim Stat. 0 (River and Harbors Act)... Stat. (Parker Dam Act)... Regulations Fed. R. Civ. P.... Other Authorities Cohen s Handbook of Federal Indian Law...,,, Anthony Madrigal, Sovereignty, Land and Water, p. (00).... iv SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

6 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 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, 0. The central issue in this case is simple: Does Section lie within the exterior boundaries of the Chemehuevi Indian Reservation? Defendants have acknowledged that, if the answer to this question is yes, then Section is Indian country for the purposes of U.S.C., and Public Law 0, U.S.C., and the operation of motor vehicles by tribal members within Section is not, therefore, subject to the state civil/regulatory vehicle code provisions at issue in this case. The Court has concluded that Section is within the boundaries of the Chemehuevi Indian Reservation ( Reservation ), stating because Section falls within the boundaries of the Reservation, Plaintiffs have raised at least serious questions going to the merits of their claim that Section is Indian country. August, 0 Order Re Motion for Preliminary Injunction ( Order ), p.. The Court, at the same time, suggested, however, that there remained some question as to whether Section is Indian country. Plaintiffs have only raised serious questions as to whether Section is Indian country... Id. at p.. The Court appears to question whether the boundaries of the Reservation were established before the trust patent for the Reservation was issued in 00. Plaintiffs cite to no authority for the proposition that Anthony Madrigal, Sovereignty, Land and Water, p. (00). While Defendants do not contest the assertion that enforcement of the California Motor Vehicle Code in Indian country is unlawful, see Opp. at,, they argue that Section is not in Indian country because it is not a part of the Indian reservation. August, 0 Order, p.. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

7 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 an Indian reservation s territorial boundaries can be established without also establishing the reservation itself through a trust patent. Id. at p.. In this brief, Plaintiffs demonstrate that: () the Act of March, created the Reservation, but did not define its boundaries; () the February, 0 Order issued by the Secretary of the Interior established the boundaries of the Reservation, which encompass Section ; () the establishment of the Reservation and its boundaries was not dependent on the issuance of a trust patent; and () the history of the Chemehuevi Indian Tribe and its Reservation reveal that Congress, the federal government, and the federal courts have, since 0, recognized the existence of the 0 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 partial 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. (a); Anderson v. Liberty Lobby, Inc., U.S., - (); Celotex Corp. v. Catrett, U.S., (). In ruling on a motion for 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. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

8 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 0 U.S.,, 0 (00). ARGUMENT I. THE RESERVATION WAS ESTABLISHED BY THE 0 ORDER. On February, 0, 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. By withdrawing the lands from settlement and setting the lands aside, the 0 Order established the exterior boundaries of the Reservation. Section was expressly included within the boundaries of the Reservation by the 0 Order. On March, 0, Congress amended the Mission Indian Relief Act, Stat. () ( 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 ), Stat. 0, 0- (0). There is no doubt that, in 0, 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. Plaintiffs Request For Judicial Notice ( Request ), p.,, Exhibit A. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

9 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 United States v. Midwest Oil Co., U.S., (), citing statement of Secretary Teller, L. D., (-). See also, Spaulding v. Chandler, 0 U.S., 0-0 (); United States v. Consolidated Mines & Smelting Co., Ltd., F. d, (th Cir. ). The fact that the 0 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, 0 F. d, (th Cir. ) [holding that the acts of the heads of departments are the acts of the executive ]. See also Midwest Oil, U.S. at 0[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 0 Order. AMIRA constitutes Congressional confirmation of the 0 Order. Thus, there is no question that the 0 Secretarial Order established the exterior boundaries of the Chemehuevi Indian Reservation. II. INDIAN COUNTRY RELATES TO JURISDICTION, NOT TITLE TO LAND. The Picket Act of 0, Stat., amended in, specifically described the withdrawal authority of the President. During the early 0s, the public land order gradually replaced the executive order and the secretarial order as the primary instrument for establishing an administrative withdrawal. In Pechanga Band of Mission Indians v. Kacor Realty Inc., 0 F. d (th Cir. ), 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 Order, or that Congress could not convey that power to the Secretary. Pechanga, 0 F. d at. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

10 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page 0 of 0 Page ID #: 0 0 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,.0[] (0), quoting Alaska v. Native Village of Venetie, U.S. 0, n. (). The concept of Indian country, is, therefore, founded on jurisdiction over, not title to, land. U.S.C.. Congress was compelled to enact U.S.C., 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. U.S.C. 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-ofway running through the same. Section 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 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

11 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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, 0 U.S., (). 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., 0 U.S. at, citing Cohen s Handbook of Federal Indian Law (emphasis added). See Donnelly v. United States, U.S. (); United States v. Sandoval, U.S. (); United States v. McGowan, 0 U.S. (); United States v. Pelican, U.S. (). Section 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 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, U.S. at (emphasis added). SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

12 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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, 0 U.S., - (). [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, U.S. at, quoting United States v. John, U.S., - (). 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 0 Order based on the failure on the part of the United States to issue a patent for the Reservation trust lands for more than 00 years after the Reservation was established. The Court s apparent reluctance to definitively conclude that the boundaries of the Reservation were established by the 0 Order is based on a statement from one court decision, Pechanga Band of Mission Indians v. Kacor Realty, Inc., 0 F. d, (th Cir. ): 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 0. Based on the fact that a trust patent for the Reservation was not issued until 00, the Court stated, Section is not part of the Chemehuevi Indian Reservation. Id. at p. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

13 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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. 0-. The Court added: One month after the Secretary s February, 0 Order, Congress amended MIRA ( March, 0 Act ). See Stat. 0, 0-. The March, 0 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., fn. 0. 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 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 is Indian country, Order, p., it is unclear to Plaintiffs whether the Court s discussion of Pechanga is intended to demonstrate that Section 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 00 and, therefore, questions whether Section 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 is within the boundaries of the Reservation. Nothing in Section 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 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

14 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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 0 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. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

15 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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. 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 Act proved unsatisfactory, Congress enacted the Mission Indians Relief Act, ch., Stat. ().... The 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 0 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

16 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 person under any of the United States laws providing for the disposition of the public domain. Pechanga, 0 F. d at -. 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. 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, 0 F.d at n. (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 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. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

17 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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., p.. 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, 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, when the Dawes Act provided for allotting tribal lands to individual Indians, the American Indian s heritage in land totaled SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

18 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 million acres. Less than 0 years later, when the allotment policy was abandoned, only million acres were left in Indian hands. Cohen s Handbook of Federal Indian Law,.0. 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 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. 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,.0. 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 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

19 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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 of the Indian Reorganization Act.... In addition, Section to the IRA extended indefinitely all periods of trust thus, no fee patents have been issued. U.S.C.. Finally, section of the IRA recognized that tribes are the actual owners of their land and that they clearly have a compensable interest in their lands. U.S.C.. 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 0, 0 Opinion of Field Solicitor Fritz L. Goreham, p. 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 0 Withdrawal order, in the decision cited above, [ I.D,, supra] by approval of the Tribal constitution, by the Restoration order of October,, and in countless ways throughout the years such A true and correct copy of the August 0, 0 Opinion of Field Solicitor Goreham is attached to the Request, p.,, Exhibit B. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

20 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page 0 of 0 Page ID #: 0 0 as in requests for appropriations, approval of leases, loans, rights of way, etc. It has been recognized by Congress in the Act of July, 0 and, by reference thereto, in the Indian Claims Commission as evidence by the final judgment in Docket, dated January,. 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,, pp. -. 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 0 ORDER WAS CONTINUOUSLY RECOGNIZED BY THE FEDERAL GOVERNMENT AND FEDERAL COURTS FOR MORE THAN 00 YEARS BEFORE THE PATENT WAS ISSUED. The establishment of the Reservation pursuant to the 0 Order and the AMIRA has been acknowledged by the Congress and the Department of the Interior since 0. In, Congress authorized the President to take the necessary action to build the Parker Dam, including the reclamation of public lands and Indian reservations. Rivers A true and correct copy of the Memorandum of Phoenix Area Director, Walter R. Mills, dated August, is attached to the Request, p.,, Exhibit C. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

21 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 and Harbors Act of August 0,, Stat. 0 (). 0 the Parker Dam Act, which provided: In 0, Congress enacted in aid of the construction of the Parker Dam project, authorized by the Act of August 0, ( Stat. 0), 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. Stat., (0)(emphasis added). The Parker Dam Act also required the Metropolitan Water District ( MWD ) to pay for the inundated Chemehuevi Reservation land. Id.,. In, the Department of the Interior issued a Solicitor s opinion 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 0 Order was issued. The Solicitor rejected those claims and, in doing so, repeatedly confirmed the establishment of the Reservation by the 0 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, 0, 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 0 A true and correct copy of the River and Harbors Act, Stat. 0 () is attached to the Request, p.,, Exhibit D. A true and correct copy of the Act for the Acquisition of Indian Lands for the Parker Dam Project ( Parker Dam Act ), Stat. (0) is attached to the Request, p.,, Exhibit E. 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. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

22 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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, Ct. Cl. 0 ()] 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 ( Op. Atty. Gen., ; United States v. Midwest Oil Company, U.S. ; Mason v. United States, 0 U.S. ). 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, 0 F. d ; Wilcox v. Jackson, Pet., ; Wolsey v. Chapman, 0 U.S., ; L.D. 0), effectively confirming the Indians right to the lands. Obligation of the Metropolitan Water District of Southern California for Damages to Lands of Chemehuevi Indians, I.D., () ( Opinion ). The Opinion underscored the fact that the Tribe s rights arising from the 0 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, 0, the Department would be guilty of a breach of good faith in view of the settled governmental policy of respecting such rights. Id. at. The 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 0 Order established the Reservation. The Reservation was in all respects similar to reservations created by treaty or act of Congress. Opinion at. The entire opinion is founded on the validity of the 0 Order s establishment of the Reservation, based on the Tribe s right to use and occupy the Reservation that predated the 0 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

23 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 Order. No trust obligations would arise from the 0 Order if it was invalid or ineffective pending the issuance of a patent. The establishment of the Reservation pursuant to the 0 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, I.C.C. (). In, the Department of the Interior, through its solicitor, again acknowledged that the 0 Order established the Reservation. The Chemehuevi Reservation was established in 0 on the ancestral homelands of the Chemehuevi Indians.... DOINA 0, DOINA LEXIS (August, ). 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 U.S.C. d or U.S.C. 0, which impose restrictions with respect to actions affecting Indian reservations. [J]ust as the original designation affected only title to land within the Chemehuevi 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 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.,, 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.,, Exhibit G. On January, 00, then Solicitor of the U.S. Department of the Interior issued an opinion, M-00, 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. SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

24 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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., DOINA LEXIS at, citing United States v. Celestine, U.S., (0). In rejecting the argument that returning title to the land would violate U.S.C. 0, 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, the federal government restored title to the Shoreline Slip to the Tribe. Restoration Order. 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, letter from Department of the Interior Assistant Solicitor Scott Keep to Captain Mike McBride and Lester Marston, p.. A true and correct copy of the July, Solicitor Keep letter is attached to the Request, p.,, 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 0 Order created the Reservation and established its boundaries that doubt was laid to rest by the United States Supreme Court s decision in Arizona v. California, U.S. (). A true and correct copy of the Restoration Order is attached to the Request, p.,, Exhibit I. 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 0 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

25 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 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 (emphasis added). See id. at, fn. 00 [ The Chemehuevi Reservation was established by the Secretary of the Interior on February, 0, pending congressional approval. ]; Mattz v. Arnett, U.S., 0-0 () [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. -,. For the purposes of this litigation, however, that litigation provides compelling support for the conclusion that the 0 Order established the Reservation and its boundaries. In United States v. Ron Jorgensen, United States District Court Central District of California, Case No. CV--0-TJH, this Court, in its Statement of Uncontroverted Facts and Conclusion of Law ( Conclusion ), entered before the 00 Patent was issued, held that the Reservation was established by virtue of the 0 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, 0, withdrawing from settlement and entry the following described land:... 0 SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

26 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #:0 0 0 and correct copy of the Conclusion is attached to the Request, p.,, 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, 0. 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, U.S., (). 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.,, attached as Exhibit J to the Request, p.,. The foregoing makes two facts indisputable. The federal government recognized that the Chemehuevi Indian Reservation was established by the 0 Order for more than 00 years before the trust patent for the Reservation was issued. Second, the federal government has recognized since, 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 0 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 00 years, dragged its feet for twenty-two () 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 See also, Havasu Landing Homeowners Ass n v. Babbit, U.S. App. LEXIS, -; Wendt v. Smith, F. Supp. d 0, 0-0 (C.D. Cal. 00) (providing a chronology of the cases that involved challenges to the lawful creation of the Reservation). SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]

27 Case :-cv-0-dmg-ffm Document - Filed 0/0/ Page of 0 Page ID #: 0 0 the Reservation was not established by the 0 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. Because there is no doubt that the Reservation was established by the 0 Order, the Court is compelled to recognize that the boundaries of the Reservation are those established in the 0 Order. The Order s legal description of the Reservation includes Section. Thus, Section is Indian country within the meaning of Section. VI. A RULING THAT SECTION IS NOT PART OF THE RESERVATION IS BARRED BY FEDERAL LAW. Moreover, because Section was included within the boundaries of the Reservation by the 0 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. U.S.C. d. Section d 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, U.S., 0 () (emphasis added). Accord, United States v. Celestine, U.S., (0) [ when 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., 0. See also, Sioux Tribe v. United States, U.S. ()(holding no compensable interest in Executive Order Reservation). SUMMARY JUDGMENT [Case No. :-cv-0-dmg-ffm]