Tuesday, August 30, 2016

COURT Dismisses Jamul Action Committee Case. Sovereignty Where There is NONE?

The Jamul Indian Village, raising a casino after BEATING AND EVICTING residents, won a short vicory in District Court. The committee against the casino wants to keep the suit alive...

On August 8, 2016, the U.S. District Court dismissed Jamul Action Committee's Complaint, without leave to amend. This decision came as a surprise because portions of JAC’s lawsuit are still on appeal with the Ninth Circuit Court of Appeals. The District Court lacks jurisdiction to make any substantive decisions, much less dismiss JAC’s case, while the appeal is still pending. And, because JAC’s appeal may be nearing completion, the timing of this decision is curious. JAC had urged the District Court to delay any such decision until the appeal is complete. Unfortunately, the court did not accept JAC’s suggestion.

Consequently, on August 15, 2016, JAC was required to file an immediate appeal of the District Court’s Order which was decided on narrow procedural grounds. Specifically, Judge Mueller reversed her 2014 approach, that allowed the case to proceed with JIV participating as a non-party amicus, and held that the case must now be dismissed because the JIV could not be joined as a party because they have sovereign immunity. This is not correct. The JIV is a quarter-blood Indian group created in 1982. It decided not to seek federal recognition under 25 CFR Part 83 and is not entitled to sovereign immunity. But the District Court’s use of this procedural technique allowed it avoid deciding the merits of JAC’s lawsuit.

JAC is confident that, despite this temporary procedural side-track, and despite the ongoing casino construction, it will prevail on the merits in the long-run. JAC’s confidence is based the fact that it is undisputable that the current casino is not being built on a “reservation” or other trust land that is eligible for Indian gaming under the IGRA. JAC offered recorded title documents into evidence which demonstrated that the land does not qualify for Indian gaming under IGRA. Neither the Defendants nor the JIV offered any contrary evidence. Instead, they urged Judge Mueller to ignore the evidence and offered a “virtual” or “de facto” reservation theory that has been discredited by other recent court decisions.

The most recent case – decided on July 28, 2016 - which discredited a version of this theory is from the District Court of Massachusetts. (Littlefield v. Department of Interior.) The facts of that case are similar to situation in Jamul in that sense that the tribe in that case (Mashpee) started constructing their casino, despite the fact that there was litigation challenging the casino as being built on land not eligible for gaming. But, the tribe in that case was in a much stronger positon than the JIV. Unlike the JIV, the Mashpee had obtained formal recognition under 25 CFR Part 83 and had formally acquired land in trust under 25 CFR Part 151.

The BIA in the Littlefield case accepted the trust land and declared it to be a “reservation” eligible for gaming. Several members of the community (like JAC) sued the BIA challenging this decision as violating federal law. They did not name the Mashpee tribe but, unlike our situation, the District Court did not hold that the Mashpee was a required party. The Defendants in that case also filed a motion to dismiss. But the outcome was different. Instead of dismissing the community’s case on procedural grounds, the District Court of Massachusetts adjudicated the merits and held that – despite the ongoing construction - the land was not a reservation eligible for gaming because the Mashpee was not a federally recognized tribe in 1934. This was the legally correct conclusion and the reason that we are confident of ultimate success on the merits in our case.

LAW 360 reports:   - Former Jamul Indian Village leaders suing in California federal court over the alleged disinterment of their relatives’ remains during the construction of the tribe's proposed $400 million casino blasted the federal government’s attempt to escape the suit on Friday.

No comments: