Tonight I want to talk about FAITH in the law. Many of you know me, as Walter and Karen’s lawyer. I’ve been their lawyer since 1994. For those new to the neighborhood, Walter Rosales and Karen Toggery are Native American neighbors, who were kicked out of their homes and their families’ remains dug up and dumped on CalTrans construction site last year, because they opposed this construction.
Tonight I want to update you on our lawsuits, and talk about why we still have FAITH in the law to stop any casino in Jamul.
We still have never lost on the merits in any court. We now have 5 pending lawsuits, and I have 4 news bulletins to talk about tonight.
So where are we?
As Sir Winston Churchill said on November 10, 1942, after 3 long years of steady German advances, at the first hint of Montgomery’s victory over Rommel: “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
When you combine such British pessimism with American optimism, you often get divine revelation. Which is why I quote Churchill on FAITH, in our darkest hours, just before the dawn.
Wikipedia and Merriam Webster define faith: as a belief, a confidence, a trust in an idea. That idea can be religious or secular. As the Good Book says in Hebrews 11:1: “Faith is confidence in what we hope for, and assurance about what we do not see,” especially when we do not see it.
Why do we have faith: Because we have experience, and because we can all think for ourselves.
We trust an object to fall because we have experienced gravity. We trust people to do what they have done before– both good and bad. We trust our religion (whatever it may or may not be) to help us make the choice between good and evil, right and wrong.
But, whether you are religious or not, we Americans especially put our trust in our law to protect us from those who choose to break the social compact and violate our law for personal gain.
Last fall at Pio Pico, I talked about what I believe in. Tonight, I want to talk about what we all have FAITH in, why we are here, and why we are going to win this battle.
For in this Country we have a particular faith in the idea of American Justice. Founded on inalienable rights to which we are entitled, we believe that certain truths are self evident. We believe in Equal Justice Under Law.
We believe no one is entitled to violate equal justice under law, so much so, we carved that idea into the stone above the door to the Supreme Court.
We believe that a half-blood Indian community that has never been recognized as a tribe, and has no sovereign immunity, has no right to plant a flag in the government’s portion of a 100 year old cemetery, and in a bloodless coup, take over that cemetery and dig up the families’ remains and illegally build a casino on land that the law does not allow; while its tax paid community sympathizers at the BIA and CalTrans cheer the violations.
We believe in Congress to write the laws, the Executive to enforce the laws, as written, and, the Courts to uphold the rule of law against those who violate it for personal greed and aggrandizement.
So, why are we still having this conversation? Why hasn’t our faith in the law already shuttered this thing once and for all.
Well, since our country was founded, the hardest laws to enforce are those that favor a few while denying their entitlements to the majority of the rest of us. Indian gambling is no different.
What this has to do with our faith in the law is the part of faith you can’t see. The part of the law you must trust and have confidence in. The faith that allows each of us to do his or her part to keep demanding that it be enforced equally among all of us.
It was hard for Judge Mueller to grant an injunction to stop construction, without a trial establishing the facts: that the JIV was not recognized in 1934, and therefore has no right, title or governmental power over the goverment’s portion of the cemetery, where they are illegally building a casino.
So, to avoid rushing to judgment and deciding the merits before a trial, like so many courts in which I have appeared, Judge Mueller found JAC/JCC’s motion for an injunction was premature, and could wait until the merits are heard later this summer.
But there is GOOD NEWS in all of this. I told you I had 4 news bulletins on our cases.
FIRST BULLETIN: all 5 of our lawsuits are still pending. None have gone to final judgment and the merits remain to be proven at trial this summer-fall. We still have never lost on the merits in any court.
|1. JAC and S.D. County v. Cal Trans||Stop Access to SR94|
|2. JAC v. Wildlife Conservation Board||Stop Soil Nails|
|3. JAC/JCC v. BIA and NIGC||Stop Illegal Gambling|
|4. Rosales & Toggery v. Cal Trans||Stop Illegal Desecration State|
|5. Rosales & Toggery v. Dutschke||Stop Illegal Desecration Federal|
And there’s more good news. SECOND BULLETIN: JAC/JCC’s motion for an Injunction got Judge Mueller to hold that the BIA and the Gaming Commission must prepare the federally required Supplemental Environmental Impact Statement, before gambling will ever be allowed, just as Ken Williams (JAC’s lawyer in Sacramento) predicted, when he came to talk to you last year.
And still More good news. THIRD BULLETIN: that by seemingly kicking the can down the road, Judge Mueller opened the door for the Ninth Circuit to immediately overturn her decision any day now, and grant the injunction to stop construction, pending the trial on the merits later this summer or fall.
JAC/JCC have already filed the appeal to the Ninth Circuit. JAC/JCC have already made an urgent motion for an injunction pending the appeal. Keep in mind an injunction is required by the 1999 Compact to stop construction, which Compact has never been amended, AND NEVER allowed gambling on any part of the cemetery.
And perhaps some of the BEST NEWS: FOURTH BULLETIN: Big Lagoon Rancheria v. California is back. On June 4, 2015, an en banc panel of 11 justices of the Ninth Circuit again acknowledged that it is bound by the Supreme Court’s rulings in Carcieri and Patchak that I’ve been telling you about.
“Under Carcieri, if a tribe was not under federal jurisdiction in 1934, the BIA lacks the authority to take land into trust on its behalf....The Supreme Court has explained [in Patchak] that a challenge to the BIA’s ‘decision to take land into trust’ is ‘a garden-variety APA claim.” Big Lagoon, page 12-13. Which is exactly the claim filed by Ken Williams in the Sacramento lawsuit.
Therefore, since the JIV was not recognized as a tribe in 1934, the JIV has no land that qualifies for gambling under the Gaming Regulatory Act or the Compact.
This will shutter the building to gambling once and for all.
The long and the short of it. We have them Where We Want Them. It’s Not Over Until its Over — and its Not Over Yet!
Every day another decision is rendered somewhere that support our claims. THE LAW REALLY IS ON OUR SIDE.
Lest you think this thing is too big to fail or too big to tear down, let’s review just 7 examples of casinos that have been closed, where they were being illegally operated and where the land does not qualify for gambling.
|1. Keetowah Casino (UKB) Talequah, Oklahoma||Built 1986 before IGRA. Shut down by federal court order Aug 2013. Illegally operating on land Never in trust|
|2. Alturas Desert Rose Modoc County||Closed September 2014|
|3. La Posta Boulevard, San Diego Co.||Closed Oct 2012 20,000 sq ft casino Yavapai tribe’s $20M loan|
|4. Three Feathers Casino Akwesasne, NY||Schism between 3rd Mohawk Bingo Palace Akwesasne Mohawk Casino 6 miles away 55,000 sq ft casino|
|5. Meskwaki Casino Tama, Iowa||Closed 2003 Sac & Fox of Miss. In Iowa despite $3 mill/week revenue. Fed Judge Linda Reade: “Permitting an unrecognized faction to take control of a tribe, rewards those who would use force or intimidation to take power.”|
|6. Bay Mills Indian Commty Brimley, MI||Closed in 2011, Not on tribal land|
|7. Chuckchansi Casino Yosemite||Closed by federal court order 40 minutes following armed takeover by one faction|
Let me conclude where I began with Churchill and the Good Book: Hebrews 12:1: summarizes FAITH like this:
“Therefore, since we are surrounded by such a great cloud of witnesses, let us throw off everything that hinders us and so easily entangles us. Let us run with perseverance, the race marked out for us, [it is a marathon not a sprint] Let us fix our eyes on the reason we are here...those that would not obey the law, so that you will not grow weary and will not lose heart.”
The day after Churchill described the end of the beginning, he spoke to the House of Commons:
“How silly it is for people to imagine that [one] can act... in immediate response...[to] large-scale offensives. There must be planning, design and forethought, and [when there is] a long period of silence, which looks to the ordinary spectator as if it were ...inertia, [it] is in fact, [a] steady indispensable preparation for the blow.
[Our] difficult[y] lie[s] in finding the patience, self-restraint [and FAITH] to wait through the many anxious weeks for the results [of the blow] to be achieved.”
And achieved they were then, and they will be here too. Now THAT’s what FAITH in LAW is, and IT DOES move mountains. It will keep you from growing weary. You will not lose heart. It will rebuild that hill, when JIV Chairman Raymond Hunter is finally told, as Reagan told Gorbachev: “Mr. Hunter, Tear Down that Steel.”
We need not bury our heart at Wounded Knee, we need to re-bury our dead at wounded Jamul. We need to Keep the Faith: No Casino Not Now Not Ever.
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P.O. Box 1317
Jamul, CA 91935
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