Second Lawsuit Seeks Injunction, $4.65 Billion and Tejon Mountain Village Lands for Kiwaiisu Tribe of Tejon

By Patric Hedlund

On November 8, 2009 David Laughing Horse Robinson, acting as his own attorney and representing the Kawaiisu Tribe of Tejon, filed a suit in federal court against the U.S. Department of the Interior, Kern County and Tejon Mountain Village, LLC. He seeks an immediate injuncton to stop Tejon Mountaini Village development and $4.65 billion from the Departmen of Interior in compensation, penalties and damages, plus restoration of the Sebastian Reservation lands which he says were granted to his tribe in 1853, before Tejon Ranch came into existence.

Robinson, who lives in Kernville and is said to be employed at Bakersfield College, identifies himself in the suit as Chairman of the Kiwaisu Tribe of Tejon. His suit also asks for numerous reforms to the manner in which Kern County has conducted its planning and procedures in regard to Native American cultural sites. He claims that archeological sites are the intellectual property of the indigenous people who created them, and that their descendents are the rightful owners of such sites and their artifacs.

In the filing, Robinson cites the historical and legal basis for his claims that his tribe has been illegally and negligently dropped from the federal register of recognized tribes, indicating that up into the 1920s his tribe was recognized, and was allocated 75,000 acres of land as a reserve by federal treaty in 1853. He claims that the failure of the Department of Interior to fulfill its duties under law and treaty to protect his tribal rights has left the Kawaiisu Tribe, and individuals within it, open to irreperable harm if Tejon Mountain Village is allowed to move forward.

The filing says that failure of the Department of the Interior, Division of Indian Affairs, to fulfilll its duties has allowed other entities, such as Kern County, to be able to authorize building on his tribal reserved lands. Robinson adds that the Environmental Impact Report (EIR) for Tejon Mountain Village, as prepared by the Kern County Planning Department, contained "offensive language," referring to his ancestors’ grave sites and bones as "the property of the property owner."

Robinson’s filing claims that the Kiwaiisu were not properly notified in a timely manner as interested parties to participate in the scoping and preparation of the Enviromental Impact Statement for Tejon Mountain Village, as required under the California Environmental Quality Act. He claims that National Environmental Protection Act guidelines for participaton of native peopes in plans affecting their lands have also been violated.

He quotes (Solem v. Bartlett, 465 U.S. 463) a 1984 U.S. Supreme Court ruling that "Only Congress can divest an Indian reservation of its land and diminish its boundaries. But Congress must clearly evince an intent to change boundaries before
diminishment will be found." On that basis, he claims that the Sebastian Reservation was never properly dissolved and that the title to Tejon Ranch Company land is clouded.

He says that the Fifth Amendment of the U.S. Constitutional protects against illegal seizure of personal property by the government without compensation.Robinson says in the suit that the Indian Trust Fund Management Reform Act of 1994 requires that the Secretary of Interior must provide adequate accounting for the trust assets of tribes. He contends that this has not been done for the Kiwaiisu.

He asks the court to order the Department of the Interior (DOI) to provide $150,000,000 in compensation for services not provided to the Kawaiisu Tribe of Tejon; to provide $1.5 billion in compensation for accrued revenues from resource extraction on the Tejon/Sebastian Indian Reservation and to provide compensation for pain and suffering in the amount of $3 billion.or oil, gas and other extraction royalties from his ancestral land.

He askes the court to grant an injunction or stay prohibiting the "TMV LLC Development Project" from being carried out until the claims of this case are determined.

Robinson also asks that the court order the Department of Interior (DOI) to reaffirm formal recognition of the Kawaiisu Tribe of Tejon, by publishing the Tribe’s name in the Federal Register as "an Indian Entity Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs." He askes that the DOI be ordered to include in the Federal Register an acknowledgment that an administrative oversight had occurred and that the Kawaiisu Tribe of Tejon shall be considered "Historic Federally-Recognized Tribe and shall be entitled to the privileges and immunities available to other federally-recognized historic tribes by virtue of their government-to-government relationship with the United States."

In addition to asking the court to restore the 75,000 acre Tejon/Sebastian Indian Reservation as Trust lands of the Kawaiisu Tribe of Tejon, he asks that they "restore the Tejon/Sebastian Indian Reservation School Building and land as Trust property of the Kawaiisu Tribe of Tejon" and  to restore to Trust status the Kawaiisu allotments that were sold without approval and other illegal means of transfer of Tribal Indian land.

The suit as filed, without reformatting for the web, is included below. You will find electronic artifacts in the text which do not appear in the paper filing.
 


 

16David Laughing Horse Robinson,
Chairman
Kawaiisu Tribe of Tejon
P.O. Box 1547 MV 1 0 2003
Kernville,
CA 93238
(661) 378-1085
Attorney for Plaintiff, PRO SE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

KAWAIISU TRIBE OF TEJON, )
by its Chairman, )
David Laughing Horse Robinson,)
And, 1
DAVID LAUGHING HORSE ROBINSON )
As Representative of the Class)
of Kawaiisu Tribe of Tejon )
Persons, and 1
DAVID LAUGHING HORSE ROBINSON,)
1
Plaintiffs, )
)
V. 1
Civil Case No.
1: 0 9′CV 0 1 9 7 7 0\W SMS
COMPLAINT

U.S. DEPARTMENT OF INTERIOR, )
Secretary KEN SALAZAR, )
in his official capacity and )
)
COUNTY OF KERN, 1
State of California, )
)
Defendants. )
1
-and- )
)
TEJON MOUNTAIN VILLAGE, LLC )
Real Party in Interest. 1
Civil Case No.
1: 0 9′CV 0 1 9 7 7 0\W SMS
COMPLAINT
Kawaiisu Tribe v. Department of Interior and County of Kern, CA
SUMMARY
1. I, Plaintiff, David Laughing Horse Robinson,
also known as Clyde David Robinson, am bringing this action
to this court on behalf of myself and as duly elected
Chairman of the Kawaiisu Tribe of Tejon. The Kawaiisu Tribe
of Tejon received California Tribal acknowledgement on
August 17, 1989, Number 1645093. I am descended from my
Grandmother, Stella Butterbredt Robinson Metz, California
Indian Roll Number 21529. My father, Clyde Lee Robinson’s
California Indian Roll Number is 074317 and my California
Indian Roll Number is 53872. This action is timely filed,
within 30 days of the filing of the Notice of
Determination, by the County of Kern.
2. This case is before the court due to an
administrative oversight by The Department of Interi’
or. The
Kawaiisu Tribe of Tejon is a Tribe that has been recognized
by the United States since before 1934 and has been omitted
from the Federal Register list of entities recognized and
eligible to receive services from the United States Bureau
of Indian Affairs. This will require the Assistant
Secretary – Indian Af f
airs to reaffirm the formal
recognition of the Kawaiisu Tribe of Tejon. Immediate
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
action is requested from this court because of the immense
importance to the Kawaiisu Tribe of Tejon, its citizens,
and the citizens of California.
3. ~lso,
this case is before this court due to
another administrative oversight by the Department Of
Interior. The Federally recognized 75,000 acre
Tejon/Sebastian Indian Reservation (Map #311 EXHIBIT 1) has
been unlawfully omitted from the list of Kawaiisu Tribe of
Tejon trust lands, due to the failure of the fiduciary
trust responsibility of the Department of Interior under
Executive Orders and Congressional Acts. This will require
the Assistant Secretary – Indian Affairs to restore the
Tejon/Sebastian Indian Reservation, Library of Congress
ceded map #311 (EX. I), to Trust. Immediate action is
requested from this court because of the immense importance
to the Kawaiisu Tribe of Tejon, its citizens, and the
citizens of California.
4. This request for emergency relief is necessary
to halt a massive development recently approved on the
Kawaiisu Tribe of Tejon’s Federally Recognized Reservation
known as the Tejon/Sebastian Indian Reservation (EX. 1).
The lead agency approving this massive development is the
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
County of Kern, State of California. The applicants for the
development are Tejon Ranch Company, Tejon Mountain Village
LLC and selected companies they control.
5. The Kawaiisu Tribe of Tejon also asks this
court to define our "Indian Country" as set forth under
Treaty D, signed at Camp Persifer F. Smith, at the Texan
Pass, State of California, June 10, 1851, between George W.
Barbour United States Commissioner, and the Chiefs,
Captains and Head Men of the Kawaiisu Tribe of Tejon.
Treaty D is defined on the Library of Congress Ceded Land
map #286 (EXHIBIT #2). Ceded Land Map #286 (EX. 2)
duplicates the Diseno maps of 1776 and 1777 by Father
Francisco Garces and Father Pedro Font for the Government
of Spain (EXHIBIT #3).
6. Kawaiisu Tribe of Tejon’s "Indian Countryir
is
outlined and defined in the 5fith Congress, lst Session, House
of Representatives Document Number 786 called the
Eighteenth Annual Report of the Bureau of American
Ethnology to the Secretary of the Smithsonian Institution
1896 – 97 and the Smithsonian Institution Bureau of
American Ethnology, Bulletin 30 Handbook of American
Indians North of Mexico published July 1, 1905. In the
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Handbook of American Indians North of Mexico the Kawaiisu
Tribe of Tejon are documented under several different
names: Cobajais, Cobaji, Covaji, Kah-wisl-sah, Kawaiisu,
Ka-wig-a-suh,
Kawishm, Kow-a’-sah, Kubakhye, Newool-ah,
Noches Colteches, Ta-hi-cha-pa-han-na, and Ta-hichp’
(EXHIBIT #4).
7. The Diseno Maps (EX. 3) of 1776 and 1777 by
Father Francisco Garces and Father Pedro Font for the
Government of Spain use several of our Tribal designations
on their maps: Cobaji, Cobajaef, Quabajai, Nochi, Nochis
(EX. 3).
8. No acts of termination have ever been affirmed
incorporating any of the names used to identify our Tribe:
Cobajais, Cobaji, Covaji, Kah-wisf-sah, Kawaiisu, Ka-wit-a-
suh, Kawishm, Kow-a?-sah, Kubakhye, Newoor-ah, Noches
Colteches, Ta-hi-cha-pa-han-na, and Ta-hichpt (EX. 4).
9. The Kawaiisu Tribe of Tejon have been issued
over 32 Patented Indian Allotments. The United States
issued allotments to Kawaiisu Tribal members who lived on
the Tejon/Sebastian Indian Reservation (EX. 1). This is
consistent with the Supreme Court finding of Mattz v.
Arnett, 412 U.S. 481 (1973). In that case the unanimous
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
court ruled that the allotment provisions of the Act of
June 17, 1892 are completely consistent with continued
reservation status. In other words, by issuing allotments
the Department of Interior and Congress are continuing to
recognize the existence of a tribe and it’s reservation. In
that Supreme Court case the issuance of allotments reversed
termination; the Kawaiisu Tribe of Tejon have never been
terminated, hold allotments and have a reservation.
10. Plaintiff is in immediate danger of sustaining
irreversible injury if the court does not take action at
this time. Four of five of our Board of Supervisors
accepted large campaign donations from the development
Applicant. Governor Schwarzenegger accepted a large
campaign donation from Applicant after a PR appearance
before the Planning Commission vote. The machine is moving
forward to receive a favorable public and political outcome
while violating equal treatment for the Kawaiisu Tribe of
Tejon. Kawaiisu Tribe of Tejon has a pre-historic and
historic claim to the property but was not noticed on a
development project that will create irreversible damage to
the tribe and is an unlawful act that meets the definition
of genocide and ethnocide .
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Kawaiisu Tribe of v. Department of Interior and County of Kern, CA
11. The Kawaiisu Tribe of Tejon (KTOT) seeks
emergency relief because the County of Kern, as Lead
Agency, approved a massive 26,417 acre private luxury
resort with two 18 hole golf courses on October 5, 2009.
his complex development is designed to also have three
hotels, 750 resort lodging units, 3,450 residences (on lots
up to 20 acres in size), 160,000 sq. feet of commercial
development, two helipads, fire facilities and more.
12. Defendant and Lead Agency, Kern County, has
approved this development on the ~awaiisu
Tribe of Tejon’s
Indian Reservation, which is Federal property. Congress is
the only Branch of Government that has the power to
transfer Indian Reservation Lands and the State of
California agreed with those Federal Government guidelines
to gain Statehood. Kern County does not have Jurisdiction
to take this action. The Kawaiisu Tribe of Tejon alerted
Defendant, Kern County, about this fact before the Kern
County Planning Commission voted on the project and before
the Board of Supervisors voted on the project. Public Law
86-634, July 12, 1960, HR4386, 74 Stat. 469: It is illegal
to destroy, deface, or remove boundary markers on Indian
Reservations or to tresspass.
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
13. Additionally, the EIR shows plans to destroy
over 40 pre-historic village sites as part of this
development and additional Sacred Sites and burials.
Illegal and offensive language is in the Lead Agency EIR
regarding these acts of Intellectual Property destruction,
Antiquities destruction and Cultural decimation; the EIR
states: ^’the property owner (who is also the owner of the
remains), and of any associated archaeological materials."
104 STAT. 3048, Public Law 101-601
Public Law 86-634, July 12, 1960, HR4386, 74 Stat. 469: It
is illegal to destroy, deface, or remove boundary markers
on ~ndian
Reservations or to tresspass.
14. Defendant, United States Department of
Interior has failed in their fiduciary responsibility to
hold and protect the Tribe from the unlawful taking of
their Reservation as required under the law. As trustee,
the Department of Interior should be advocating here on the
Kawaiisu Tribe of Tejonfs behalf. Department of Interior is
obligated under law to present to Kern County the finding
that the Tejon/Sebastian Indian Reservation (EX. 1) has
never been terminated by Congress. The Department of
Interior (DOI) was obligated to present Treaty D, our
Â
Kawaiisu Tribe o v. Department of Interior and County of Kern, CA
California Treaty, at the California Land Commission
hearings in the 1850′s and 1860′s. The DO1 is required to
put the Kawaiisu Tribe of Tejon in the Federal Register
listings of Historic Federally-Recognized Tribes. The DO1
is required to declare that the Kawaiisu ~ribe
of Tejon
Indian Country covers the 20 million acre, 1776 Diseno as
recorded in the Library of Congress Ceded Land Map Number
286 (EX. 2). The DO1 is required to provide an accounting
and monthly revenue, plus interest, as reported to the
Department of Treasury, for the oil, mineral, water,
grazing and wages collected on the Tejon/Sebastian Indian
Reservation.
15. The Kawaiisu Tribe of Tejon’s claim to the
property is not in dispute. Spain granted the Kawaiisu the
Diseno outlined by Father Garces (EX. 3) in 1776
(Recopilacion de las Indias, Bk. 4, Tit. 12, Laws 5, 7, 9,
14, 18; Bk. 6, Tit. 3, Law 9; Hall, Mexican law, 36, 38,
40, 45, 49, 165; 2 White’s New Recopilacion, pp. 50, 52,
242.). Mexico acquired the property by International Treaty
to hold in trust for the Tribe then transferred it by
International Treaty to the United States to hold in trust
( 184 8 Guadalupe Hidalgo Treaty)
. The Spanish and ~exican
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
laws protecting the Tribe were agreed to by the United
States and guaranteed by the 1848 treaty. The United States
negotiated Treaty D (10 June, 1851) with the Tribe to have
the Kawaiisu cede the 20 million acre Diseno (map #286 –
Exhibit 2) and reserve 1.2 million acres. The United States
established the first California Indian Reservation within
the 1.2 million acre reserve and established a 75,000 acre
Reservation (map #311 – EXHIBIT # 1 – Tejon/Sebastian
Reservation) for the Kawaiisu. An Indianschool was
established by the Department of Interior on the
Reservation and is still there. The United States issued
allotments to Kawaiisu Tribe of Tejon members who lived on
the Tejon/Sebastian Indian Reservation.
16. As this Complaint is being prepared,
television and newspaper reports indicate that the
Applicant is spending several hundreds of thousand dollars
to negotiate with other Tribes to build a Gaming Casino on
the Kawaiisu Tribe of Tejon’s Indian Reservation (EX. 1).
No mention of this Casino is in the Lead Agency, Kern
County’s, EIR that was approved on October 5, 2009. At the
October 5 hearing, a public participant and an interested
environmental attorney brought up the omission of a Casino
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
in the EIR. Kern County Planning officials denied, at the
televised hearing, that there were any plans for a Casino
on the property and that there was no reason for it to be
in the EIR.
17. It is clear that Defendants, Kern County,
California and the Department of Interior must be brought
before this Court to face these charges. The Kawaiisu Tribe
of Tejon is facing irreparable injury, genocide and
ethnocide and seeks emergency intervention.
18. At the outset, the Kawaiisu Tribe of Tejon
asks the Court to grant an injunction or stay prohibiting
the Tejon Mountain Village LLC Development Project from
being carried out while the claims of this case are being
resolved. Other relief is stated at the end of this
Complaint.
JURISDICTION AMD VENUE
This court has jurisdiction over this action pursuant
to 28 U.S.C. Sub. Sec. 1505, the Indian Tucker Act. TheAct
conveys jurisdiction because the U.S. waives its sovereign
immunity to permit Indian Tribes to sue for damages in the
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
Court of Federal Claims for claims arising [after August
13, 19461 under the Constitution, laws or treaties of the
US, or Executive orders of the President, or Congress which
otherwise would be cognizable in the Court of Federal
Claims if the claimant were not an Indian tribe, band, or
group.
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831)
27 Stanford Law Review 1213, 1223, Reid Payton Chambers
Judicial Enforcement for the Federal Trust Responsibility
to Indians
This Court has jurisdiction of this action pursuant to
28 U.S.C. Sec 1331 (Constitution, treaty, federal law) and
28 U.S.C. Sec. 1367 (supplemental jurisdiction).
This Court has jurisdiction because the claim presents
a question of Federal Indian Law.
This Court has jurisdiction because the monetary
relief exceeds $75,000.
Venue is proper in the District Court because a
substantial part of the events giving rise to the
Plaintiff's claims occurred in this district.
U.S.C. Sec 1391
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
Venue is also proper because of diversity of
citizenship.
Felix v. Patrick, 145 U.S. 317 (1892); Tiger v. Western
Investment Co., 221 U.S. 286 (1910); Smith v. Mosgrove, 51
Ore. 495 (1908); Frazee v. Piper, 51 Wash. 278 (1908);
Blackbody v. Maupin, 38 S. D. 621 (1917); United States v.
O'Gorman, 287 Fed. 135 (1923)
THE PARTIES
Tejon Mountain Village, LLC (TMV LLC), as Applicant,
is the real party in interest.
Plaintiff, David Laughing Horse Robinson is bringing
this action as a Kawaiisu Tribal member, a Kawaiisu Tribal
, Elder, a Kawaiisu elected Chairman and as a California
Indian bearing California Indian Roll Number 53872. Also
known as Clyde David Robinson, David Laughing Horse
Robinson is descended from his Grandmother, Stella
Butterbredt Robinson Metz, California Indian Roll Number
21529 and his father, Clyde Lee Robinson, California Indian
Roll Number 074317. The Kawaiisu Tribe of Tejon California
State Tribal acknowledgement Number is 1645093, certified
August 17, 1989. Plaintiff follows in the footsteps of his
Grandmother and Father who were also elected Chairpersons
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
by the Kawaiisu Tribal members. Plaintiff represents the
interests of Tribal members who are suffering because of
the actions or inactions of the Department of Interior and
the County of Kern. The suffering is economic, mental and
physical and fi t s the definition of Genocide and Ethnocide.
The Tribe and Plaintiff have been, are, and will be
directly, adversely, and irreparably affected by the
continued omissions and actions of the Department of
Interior and the violations of CEQA and NAGPRA by County of
Kern. Plaintiff and Tribe wi l l continue to be injured by
Defendants collective unlawful actions until and unless
this Court provides the relief prayed for in this
complaint. Plaintiff is a person of very modest means who
finds the filing fee a burden to bear. Plaintiff is trying
to secure Counsel.
Defendant, Kern County, State of California, USA is
sued in its official capacity as Project Lead Agency for
State Clearing House (SCH) Project #2005101018 called Tejon
Mountain Village by TMV LLC and Tejon Ranch Company. The
Notice of Determination (NOD) was filed on October 13,
2009.
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
Defendant, Department of Interior, is sued in its
official capacity as the United States Federal Agency
charged with, among other things, supervising the Bureau
Indian Affairs, the National Parks Service and Federal
Trust responsibilities for Native Americans and Native
American Tribes.
CAUSES OF ACTION
FIRST CLAIM
AS TO DEPARTMENT OF THE INTERIOR
Breach of Fiduciary Duty (as to the Tribe – Omitting a
historic Tribe from the Federal Reqister) Article 1.
Section 8, Clause 3, U.S. Constitution, Indian
Nonintercourse Act 25 U.S.C.S. Sub. Sec. 177
Plaintiff repeats and incorporates paragraphs 1
through 18 set forth in the SUMMARY.
The United States Department of Interior breached
their fiduciary duty to the Xawaiisu Tribe of Tejon when,
through administrative oversight, they omitted placing the
tribe’s name on the Federal Register.
The Kawaiisu Tribe of Tejon is a historic tribe and
shall be entitled to the privileges and immunities
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
available to other federally-recognized historic tribes by
virtue of their goverment-to-government relationship with
the United States 25 C.F.R. Sub. Sec. 83.12(a).
This claim meets the criteria of the Indian Commerce
Clause, Article 1, Section 8, Clause 3, U.S. Constitution,
where the Kawaiisu Tribe of Tejon has not been terminated
and the Tribe’s reservation has not been terminated.
The claim is made because the Department of Interior
maintains the Trust responsibility over the Kawaiisu Tribe
of Tejon as established by these actions: the United States
Government solicited the Kawaiisu Tribe of Tejon to sign
Treaty D (EX. 2), 10 June 1851 at Camp Persifer F. Smith on
what is now known as the Tejon Ranch. The US Government
expanded their trust responsibility to the Tribe with the
establishment of the Tejon/Sebastian Indian Reservation
(EX. 1) on March 3, 1853 (10 Stat. 226 238).
The claim is brought under the Indian Tucker Act,
Trust at Common Law and the Fifth Amendment.
Until the Department of Interior reaffirms the formal
recognition of the Kawaiisu Tribe of Tejon, the Department
of Interior remains in breach of their fiduciary duty as
Trustee of the Tribe.
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
According to Black’s Law Dictionary, "Simply put,
fiduciaries must exhibit the highest form of trust,
fidelity and confidence, and are expected to act in the
best interest of their clients at all times."
The injury caused to the Kawaiisu Tribe of Tejon by
omitting the Tribe from the Federal Register is that the
Tribe is unable to act in its official and legal authority
with the County of Kern.
For example, in the case of the Tejon Mountain Village
LLC (TMV LLC) Development, the Kawaiisu Tribe of Tejon was
not given Notice, by the County of Kern, about the TMV LLC
project, or the preparation of the projects EIR.
With the TMV LLC project, the injury caused is that
the Kawaiisu Tribe of Tejon is not being brought in under
many of the legal requirements of State CEQA and Federal
NAGPRA regulations such as: participating as a Consultant,
being listed as a Most Likely Descendant, participating in
Archeological surveys, consulting and taking possession
during Repatriation, protection of Sacred Sites and
intellectual property, participating in reburials and
monitoring the development during construction.
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
The Department of Interior’s omission of the Tribe’s
name from the Federal Register is also causing other injury
to the Tribe such as making it more difficult for the
Kawaiisu Tribe of Tejon to restore their Reservation,
restore the Tribe’s Indian Country, receive an accounting
of accrued revenues from natural resources extraction,
receive payment from Department of Interior and Department
of Treasury of those resource revenues, establish Tribal
law enforcement, attain funding for Tribal health care,
secure grants for Tribal education,-create Tribal economic
development and maintain self-governance. The Tribe is
asking for money damages for some of these injuries as
outlined in "Relief Requested."
All of the above injuries taken together are resulting
in the continued impoverishment of the Kawaiisu Tribe of
Tejon and exacting genocide and ethnocide on the Kawaiisu
Tribe of Tejon in violation of 18 USC Sce. 1091 and the
Universal Declaration of Human Rights (UDHR), 10 December
1948, General Assembly Resolution 217 A (111) International
Bill of Human Rights.
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
FIRST CLAIM AUTHORITIES
Article 1, Section 8, Clause 3, U.S. Constitution, Indian
Commerce Clause
June 24, 1924 Indian Citizenship Act
January 12, 1891, I 26 Stat., 712. Trust Continued
18 USC Sec. 1091 Genocide Law
18 USC Sec. 1151 Indian Country defined
General Assembly Resolution 217 A (111) International Bi l l
of Human Rights, 10 December 1948
Mattz v. Arnett 412 U.S. 481 (1973).
Statutes at Large 24, 388-91 General Allotment Act or Dawes
Act) divided up reservation lands into individual land
holdings for tribal members
(10 Stat. 226 238) March 3, 1853 Session 11, Thirty-Second
Congress established TejonjSebastian Indian Reservaton and
Appropriated $250,000 "to defray the expense of subsisting
the Indians
… and removing them to said reservations for
protection"
(10 Stat. 686, 699) March 3, 1855
United States v. Washington (1974)
Indian Tucker Act 28 U.S.C. Sub. Sec. 1505
Indian Trust Doctrine
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
Trust at Common Law
Reserved Rights Doctrine
Congress Plenary Power
Fifth Amendment Trust property must not be taken without
‘ just compensation”
Section 702 of the Administrative Procedure Act. Waives
sovereign immunity of federal officials for actions
"seeking relief other than money damages" involving a
federal official’ s action or failure to act.
Indian Trust Fund Management Reform Act of 1994. Secretary
of Interior must provide adequate accounting.
US v. Mitchell, 463 U.S. 206, 219 (1983) (Mitchell 11)
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)
Tribes are "denominated domestic, dependant nations."
Worcester v, Georgia, 31 U.S. (6 Pet.) 515 (1832)
United States v. Mitchell, 463 U.S. 206, 219 (1983)
Mitchell 11)
United States v. White Mountain Apache 537 U.S. 465 (2003)
Solem v. Bartlett, 465 U.S. 463 (1984) U.S. Supreme Court
held "(a) Only Congress can divest an Indian reservation of
its land and diminish its boundaries. But Congress must
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clearly evince an intent to change boundaries before
diminishment will be found."
SECOND CLAIM
AS TO THE DEPARTMENT OF THE INTERIOR
Breach of Fiduciary Duty (as to Tejon/Sebastian Reservation
Ceded Map #311)
Article I Section 8 Clause 3, Acts of Congress, Fifth
Amendment 25 U.S.C.S. Sub. Sec. 1291-1297, Indian
Nonintercourse Act 25 U.S.C.S. Sub. Sec. 177
Plaintiff repeats and incorporates paragraphs 1
through 18 set forth in the SUMMARY.
The Kawaiisu Tribe of Tejon petitions the Court for
emergency relief to restore the Historic Federally-
Recognized Tejon/Sebastian Reservation t o Trust status.
(EXHIBIT #1: Library of Congress Ceded Map #311)
The Department of Interior violated their appointed
responsibilities under the United States Constitution,
Art i cl e I Section 8 Clause 3, Acts of Congress, Executive
Orders of the President of the United States and Supreme
Court rulings.
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Kawaiisu Tribe v. Department of Interior and County of Kern, CA
Before Kern County voted on the Tejon Mountain Village
Development, the Kawaiisu Tribe of Tejon asked the Kern
County Board of Supervisors to show the Tribe a
Congressional Act that clearly shows intent to remove or
recind the Tejon/Sebastian Reservation. Chairman Robinson
knows this Act does not exist.
Instead, Kern County cited a Supreme Court Case (U. S.
v. TITLE INSURANCE & TRUST CO., 265 U.S. 472 (1924) about
Mexican Ranchos that the County of Kern’s own attorney
said, during the televised broadcast, does not mention the
Reservation and does not make clear which Ranchos or
property the case is addressing. This 1924 case lacked a
Cause of Action and even the Justice said that he "assumedw
that there was no claim made for the Disenos by the Tribe.
Quite to the contrary, the Kawaiisu Tribe of Tejon signed a
treaty in 1851, which met the Claim’s Commission
requirements. Furthermore, Tribal members were not citizens
of the U.S. until 1924 and it was the responsibility of the
Department of the Interior to protect and preserve the
Tribes rights and they did not.
The 1924 case still has nothing to do with the
Tejon/Sebastian Indian Reservation (EX. 1). The Reservation
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Kawaiisu Tribe of ejon v. Department of Interior and County of Kern, CA
is an entity of its own, as it was set-aside by the
President of the United States through an Act of Congress
giving him that power. under the U.S. Constitution and
Court Rulings, Congress is the only Branch of Government
that can delineate, terminate, or dissolve an Indian
Reservation. The Court can make a ruling on an Act of
Congress to remove Tribal ownership but has no power to do
so on its own.
According to U.S. law the Tejon/Sebastian Indian
Reservation (EX. 1) is still Trust Property of the Tribe.
This has caused great injury to the Tribe and the
Department of Interior must restore the Tejon/Sebastian
Reservation to meet their Fiduciary Responsibility.
The Department of Interior knows this because they
issued the Kawaiisu Tribal Members over 32 Indian
Allotments (48 Stat. 985, 25 U.S.C. $3 465) and the Supreme
Court has ruled that the Issuance of Allotments indicates a
Government-to-Government relationship to a Federally
Recognized Tribe. Mattz v. Arnett 412 U.S. 481 (1973).
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SECOND CLAIM AUTHORITIES
Mattz v. Arnett 412 U.S. 481 (1973).
United States v. Washington (1974)
Art i cl e 1, Section 8, Clause 3, U.S. Constitution, Indian
Commerce Clause
June 24, 1924 Indian Citizenship Act
January 12, 1891, I 26 Stat., 712. Trust Continued
48 Stat. 985, 25 U.S.C. Â 465
18 USC Sec. 1091 Genocide Law
18 uSC Sec. 1151 Indian Country defined
Public Law 85-31, May 16, 1957, S. 998, 71 Stat. 29:
Restoration of Indian Schools to trust land
Public Law 86-634, July 12, 1960, HR4386, 74 Stat. 469:
Illegal to destroy, deface, or remove boundary markers on
Indian Reservations or to Tresspass.
General Assembly Resolution 217 A (111) International Bi l l
of Human Rights, 10 December 1948
Statutes at Large 24, 388-91 General Allotment Act or Dawes
Act) divided up reservation lands into individual land
holdings for tribal members
(10 Stat. 226 238) March 3, 1853 Session 11, Thirty-Second
Congress established Tejon/Sebastian Indian Reservaton and
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Kawaiisu Tribe of v. Department of Interior and
~ppropriated
$250,000 "to defray the expense of subsisting
the Indians-and removing them to said reservations for
protection"
(10 Stat. 686, 699) March 3, 1855
Indian Tucker Act 28 U.S.C. Sub. Sec. 1505
Indian Trust Doctrine
Trust at Common Law
Reserved Rights Doctrine
Congress Plenary Power
Fifth Amendment Trust property must not be taken without
"just compensation"
Section 702 of the Administrative Procedure Act. Waives
sovereign immunity of federal officials for actions
"seeking relief other than money damages" involving a
federal official’s action or failure to act.
Indian Trust Fund Management Reform Act of 1994. Secretary
of Interior must provide adequate accounting.
US v. Mitchell, 463 U.S. 206, 219 (1983) (Mitchell 11)
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)
Tribes are "denominated domestic, dependant nations."
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
Kawaiisu Tribe v. Department of Interior and
United States v. Mitchell, 463 U.S. 206, 219 (1983)
Mitchell 11)
United States v. White Mountain Apache 537 U.S. 465 (2003)
Solem v. Bartlett, 465 U.S. 463 (1984) U.S. Supreme Court
held "(a) Only Congress can divest an Indian reservation of
its land and diminish its boundaries. But Congress must
clearly evince an intent to change boundaries before
diminishment will be found."
THIRD CLAIM
AS TO THE DEPARTMENT OF THE INTERIOR
Breach of Fiduciary Duty (as to the Tribe’s Indian Country
Ceded Map 4286)
18 USC Sec. 1151 Article 1, Section 8, Clause 3, U.S.
Constitution, United States v. Washington (1974), Indian
Nonintercourse Act 25 U.S.C.S. Sub. Sec. 177
Plaintiff repeats and incorporates paragraphs 1
through 18 set forth i n the SUMMARY.
The Kawaiisu Tribe of ~ej on
is being denied its
"Indian Countryw, as guaranteed in the Treaty of Guadalupe
Kawaiisu Tribe v. Department of interior and
Hidalgo 1848. This treaty was ratified by the Congress of
the United States and set into law.
The Library of Congress, Ceded Land Map Number 286
(Exhibit #2) shows our "1ndian Country", as it was
established in the Treaty the Kawaiisu Tribe of Tejon
signed at Camp Persifer Smith, June 10, 1851. The
Congressional Treaty Commission sent to California for that
purpose had the authority of Congress to make that Treaty
and to determine and set aside the area of "Indian
CountryM.
It is the responsibility of the Department of Interior
to maintain that the rights of our "Indian Country" are not
infringed upon. Department of Interior has violated their
Fiduciary Duty by not maintaining the Tribes rights in
Trust to a defined "Indian Country".
The injury caused by this action or inaction is that
it allows State Governments, Local Governments, and
Individuals to violate those rights guaranteed to the
Kawaiisu Tribe of Tejon.
THIRD CLAIM AUTHORITIES
"lttz v. Arnett 412 U.S. 481 (1973)
Jaited States v. Washington (1974)
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Kawaiisu Tribe v. Department of Interior and
Oklahoma Tax Comm’n v. Sac and Fox Nation , 508 U.S. 114
(1993) California v. Cabazon Band of Mission Indians , 480
U.S. 202, 207 n.5 (1987)
Article 1, Section 8, Clause 3, U.S. Constitution, Indian
Commerce Clause
June 24, 1924 Indian Citizenship Act
January 12, 1891, I 26 Stat., 712. Trust Continued
18 USC Sec. 1091 Genocide Law
18 USC Sec. 1151 Indian Country defined
General Assembly Resolution 217 A (111) International Bill
of Human Rights, 10 December 1948
Statutes at Large 24, 388-91 General Allotment Act or Dawes
Act) divided up reservation lands into individual land
holdings for tribal members
(10 Stat. 226 238) March 3, 1853 Session 11, Thirty-Second
Congress established Tejon/Sebastian Indian Reservaton and
Appropriated $250,000 "to defray the expense of subsisting
the Indians…and removing them to said reservations for
protection”
(10 Stat. 686, 699) March 3, 1855
Indian Tucker Act 28 U.S.C. Sub. Sec. 1505
Indian Trust Doctrine
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Trust at Common Law
Reserved Rights Doctrine
Congress Plenary Power
Fifth Amendment Trust property must not be taken without
just compensation"
Section 702 of the Administrative Procedure Act. Waives
sovereign immunity of federal officials for actions
"seeking relief other than money damages" involving a
federal official’s action or failure to act.
Indian Trust Fund Management Reform Act of 1994. Secretary
of Interior must provide adequate accounting.
US v. Mitchell, 463 U.S. 206, 219 (1983) (Mitchell 11)
Cherokee v. Georgia, 30 U.S. (5 Pet.) 1 (1831)
Tribes are "denominated domestic, dependant nations."
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
United States v. Mitchell, 463 U.S. 206, 219 (1983)
Mitchell 11)
United States v. White Mountain Apache 537 U.S. 465 (2003)
Solem v. Bartlett, 465 U.S. 463 (1984) U.S. Supreme Court
held "(a) Only Congress can divest an Indian reservation of
its land and diminish its boundaries. But Congress must
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clearly evince an intent t o change boundaries before
diminishment wi l l be found."
FOURTH CLAIM
AS TO THE COUNTY OF KERN
EIR Noncompliance with CEQA and NAGPRA
Public Law 101-601; 25 U.S.C. 3001 et seq., Public
Resources Code Section 21167.3 (a), CEQA 21167, 21177, Pub.
Res. Code 5024.1, Title 14 CCR, Section 4850, 4852 et seq,
Pub. Res. Code 5097.98, Section 21084, 21084.1, Pub. Res.
Code 21083, 21083.2, Health and Safety Code Section 7050.5,
Hater Code Section 12220
Plaintiff repeats and incorporates paragraphs 1
through 18 set forth in the SUMMARY.
The EIR for Tejon Mountain Village, LLC does not
comply with the provisions of CEQA and NAGPRA. This project
known as Tejon Mountain Village (TMV) contains historical
resources that meet the definitions of Pub. Res. Code
section 5020.1 (k) and 5024.1 (g), eligible for listing in,
the California Register of Historical Resources, and
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requires that the Public Agency must treat the resources as
significant. The site is a Federal Indian Reservation
noticed by California State Registered Landmark No. 133
Dedicated on November 28, 1937. The TMV LLC development
fits all four criteria required for such consideration
Section 21084.1: a) associated with events from
California’s historical past, b) associated with lives of
important persons in our past, c) embodies the distinctive
characteristics of a period, region and creative and
artistic values, and d) has yielded and is likely to yield
more information important to pre-Columbian history, pre-
California history and history and 21083.2 (without time
and cost limitations) also contains unique archeological
resources and graves 5097.98.
15064.5 The TMV LLC project will cause substantial
adverse change in the significance of the many historical
resource sites on the property including destruction,
relocation and alteration which will forever remove
eligibility for inclusion in California Register of
Historic Resources. Primary Cultural Intellectual Property
will be erased. The environmental effects will also be
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cumulatively considerable. The Secretary of ~nteriors
standards are not being followed.
Pub. Res. Code 5097.98 and Health and Safety Code
Section 7050.5, PRC 21082 contingency funding and time
allotment has not been built into procedures. Additionally,
the mass graves (unmarked cemeteries) have not been
included in the survey and a comprehensive survey of the
property by the Most Likely Descendant has not taken place.
The County of Kern has not asked the project’s Native
American Consultants, Monitors and Most Likely Descendants
to provide California CDIB Numbers, which is required to
verify their Lineal Descendancy to qualify them to be on
the site.
SB 610 The Water Supply Assessment for this project is
inadequate and does not take into consideration the
aboriginal water rights owned by the Kawaiisu ~ribe
of
Tejon on all of the Ranchos (a right of occupancy was
guaranteed by Spain, Mexico and the United States forever)
that make up Tejon Ranch Company (United States v.
Washington (1974).
CEQA 21092 and Pub. Res. Code 5097.98 Inadequacy of
Notice to Lineal Descendants and Owners of the Indian
Kawaiisu Tribe v. Department of Interior and
Reservation occurred. The Tribe should have been treated as
owner/occupants contiguous to the parcel in 15087(3). The
Kawaiisu Tribe of Tejon was not noticed about this project
in the early stages of Environmental review. No Early
Consultation or Scoping per 15082 and 15083 took place. The
Tribe only found out about the project when seeing a
posting on a County bulletin board while appearing at the
County Chambers for another hearing. This lack of notice on
this project is inexcusable based on past history of notice
t o David Laughing Horse Robinson as a Most Likely
Descendant in Indian Country ranging from Death Valley to
San Bernardino to Ventura to Santa Barbara t o Delano to
Bakersfield to Sherman Pass and back across the Coso and
Panamint Mountains. Furthermore, as one of the tribes held
in slavery and murdered at the Tejon/Sebastian Reservation
in rises to ethnocide and genocide that the interests and
concerns of the Kawaiisu Tribe of Tejon would be ignored on
this project. The Address Distribution List for the Draft
EIR is 81 pages long with over 2000 people receiving the
document. Somehow the historic Tribe with the oldest
aboriginal claim to the property was excluded from that
mailing list. To make matters worse, the Tribe did not
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Kawaiisu Tribe of v. Department of Interior and
receive the EIR and any planning documents until the end of
the October 5, 2009 hearing, after the vote had been taken.
In the Tribes letter to the county dated September 28,
2009 the Tribe alerted Kern County that the County needed
to require the Applicant t o provide documentation of
Termination of the Reservation by Congress, otherwise they
were approving a project on Federal Land, outside of their
jurisdiction as a State. By the October 5, hearing the
Applicant had not provided such a document (since it does
not exist) but the County voted t o approve the Project
anyway. This development has now been approved on Federal
Indian Trust Land.
During the Oct. 5, 2009, Public Testimony other local
Native Americans indicated that gravesites had been
destroyed and scattered on the Tejon Ranch Property some
years before and they had been contacted to assess the
site. This was the first time that the Kawaiisu Tribe of
Tejon had heard about it and even the Lead Kern County
Planner acknowledged that the incident had occurred. No one
gave notice to the Kawaiisu Tribe of Tejon or the Coroner
when this violation occurred. Public Law 101-601; 25 U.S.C.
3001 et seq. Public Law 86-634, July 12, 1960, HR4386, 74
Kawaiisu Tribe v. Department of Interior and
Stat. 469: Illegal to destroy, deface, or remove boundary
markers on Indian Reservations or to tresspass.
21092, 21104 The Trustee for the Kawaiisu Tribe of
Tejon, the Department of Interior, was not noticed about
the Project being developed on Federal Lands, the first
Indian Reservation in California. The Department of
Interior is Trustee representing Kawaiisu Tribal interests
in this project and for the required HEPA review.
Pub. Res. Code Section 21083 The State Clearinghouse
in concert with a Metropolitan area council of governments
did not review the EIR which they should have because this
project meets five of the criteria: Changes the General
Plan, will cause significant environmental effects such as
traffic, air quality and climate change, will result in the
cancellation of Williamson Act acreage, will take Water
from the Sacramento-San Joaquin Delta (WCS 12220) and
substantially affects sensitive and endangered wildlife
habitat (Section 15380). It is a project that affects an
Indian Reservation and it is a project that is placed in an
earthquake zone that in the 1850′s shook for 30 days
straight.
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The US Department of Defense maintains a low-level
flight path over the project and was not noticed. CEQA
21098, 21080.4, 21092
CEQA Section 21167 and 21108 (a) The Oct 5, 2009 vote
by the Board of Supervisors initiates the firsts step in
comprehensive zoning changes and general plan approvals
based on information contained in the various environmental
review documents submitted by Tejon Ranch Company, Tejon
Mountain Village LLC and Kern County Planning. This
Complaint is timely filed within the 30 day filing
requirement for public agency decisions. Furthermore, some
of the land is even still under the Williamson Act for two
more years and is being included in the zoning and General
Plan overhaul, even though that technically cannot happen.
Foremost, the land in contention has been and is still open
space, and has been that way since before Europeans arrived
in this country.
CEQA Section 21177(15112 (C)(5)) The Tribe exhausted
it’s administrative remedies by delivering a 50 page
hindered document to the Planning Department on August 13,
2009, five weeks before the Kern County Planning Commission
met on the project. In that document the Tribe lodged its
Kawaiisu Tribe v. Department of Interior and
objections and indicated the various reasons why the
project should not be approved. Among the contentions were
that the Tribe had not been noticed on the Project, that
Most Likely Descendant regulations had been ignored and
that the Project is being developed on land that is Federal
Land, the Indian Reservation of the Kawaiisu Tribe of
Tejon. The Tribe delivered the document by way of the
Public Comment period during a Planning Commission Hearing
and gave the Clerk audibly the Tribes Mailing Address* The
Planning Department did not follow through and mail a copy
of the EIR and planning documents for the project to the
Tribe. The EIR should have been mailed to the Tribe, and a
walking survey of the acreage should have been scheduled
and the review period extended for 90 days as requested.
CEQA Section 21177 The Tribe additionally exhausted
it’s administrative remedies by filing another letter and
video with the Board of Supervisors the week before their
hearing and appearing in person and submitting one more
written record of the Tribal comments on October 5, 2009.
In this manner the tribe again lodged its objections to the
project indicating violations with regard to the Sacred
Sites on the property, Host Likely Descendant Notice and
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that the Project cannot be developed on the Federal Land
that is the Tribe’s Indian Reservation.
It should be noted that there were only 13 days between
the Kern County Planning Commission hearing (3 to 2 vote)
and the Board of Supervisors hearing on this project. This
shortened t i me made it impossible for an internal County
Appeal.
Violation of CEQA 21091, 30 Day Review Period.
The Kawaiisu Tribe of Tejon was not given a copy of the EIR
and Planning Department documents until after the October
5, 2009 Board of Supervisor hearing finished at 4:30pm and
the vote had already been concluded in support of the
Project.
21157.6 Violation of EIR five year l i mi t ; Kern County
approved the EIR for thirty years.
County of Kern, State of California is using Native
American Consultants, Monitors and Most Likely Descendants
for Kern County EIR/EIS projects who do not hold a
California Certified Degree of Indian Blood (CDIB)
certificate issued by the Department of Interior and do not
meet the legal geneology requirements to serve in the
official capacities for CEQA and NAGPRA. This violation
Kawaiisu Tribe v. Department of Interior and
makes the Cultural Resources portion of the TMV LLC EIR
null and void.
County of Kern is not in compliance with the EIR legal
Standards for the treatment of Sacred Sites and Indigenous
Intellectual Property. The County’s Cultural Resources
treatment in the TMV LLC EIR rises to Genocide and
Ethnocide. Sacred Sites are equal to Intellectual Property
for Indigenous Peoples and are to be completely avoided and
not covered with dirt, textile matting or erased from
existence in any way. The EIR is not in compliance with
legal standards for Cemetery remains and Indigenous remains
of a Federally Recognized Tribe on a Federal Indian
Reservation. Applicant does "not" own the "remains" of the
Kawaiisu Tribal people or the artifacts found in and around
the graves, that the sum of those items will be repatriated
to the Kawaiisu Tribe of Tejon when discovered. The County
of Kern must remove the phrase about Applicant "owning"
Native American graves and archaeological materials.
104 STAT. 3048, Public Law 101-601
Public Law 86-634, July 12, 1960, HR4386, 74 Stat. 469
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FIFTH CLAIM
AS TO THE COUNTY OF KERN
Violation of the Equal Protection Clause of the Fourteenth
Amendment
Plaintiff repeats and incorporates paragraphs 1
through 18 set forth in the SUMMARY.
Defendant Kern County discriminated against the
Kawaiisu Tribe by denying, on account of religion, equal
protection under the law.
Many of the rights Tejon Ranch Corporation and TMV LLC
enjoy today in the State of California and the United
States derive from the same Fourteenth Amendment yet those
two Corporations and an assortment of Not-for-Profit
Corporations were deferred to and treated preferentially
rather than treated equally in the project approval and
CEQA process.
In the case of meeting the standard for equal
protection when undertaking a resort develo

This is part of the November 13, 2009 online edition of The Mountain Enterprise.

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