Jamul Action Committee
Jamul Action Committee Jamul Action Committee

Why We Are Still Going to Win Our Lawsuits

1. JAC v. BIA, NIGC, JIV, Penn National and C.W. Driver

The BIA and the NIGC are illegally allowing the JIV, Penn National and C.W. Driver to illegally build a casino on the U.S. government’s portion of the 7 acre Indian cemetery that doesn’t qualify for gambling. They are also violating the National Environmental Policy Act (NEPA), and Section 10.8 of the California Gaming Compact.

JAC’s emergency appeal to the Ninth Circuit for an injunction to stop construction, until Judge Kimberly Mueller holds a trial on the merits, will be heard December 7, 2015 in San Francisco.

We are going to win this lawsuit because the Compact prohibits the construction of a gaming facility by the JIV after January 1, 2005 “unless and until an agreement to amend this Section 10.8 has been concluded between the [alleged] Tribe and the State.”

Section 10.8.3(b) provides: “At any time after January 1, 2003, but not later than March 1, 2003, the State may request negotiations for an amendment to this Section 10.8 on the ground that, as it presently reads, the Section has proven inadequate to protect the off-Reservation environment.”

On February 28, 2003, the State made such a request to JIV, and 73 other tribal entities, to amend Section 10.8.3. 13 others amended. JIV failed to negotiate an amendment to Section 10.8.

Section 10.8.3(c) of the Compact prohibits casino construction after January 1, 2005 “unless and until an agreement to amend this Section 10.8.3 has been concluded between the Tribe and the State.” Without such an amendment, the JIV is required to “immediately cease construction” of the casino “unless and until agreement to amend this Section 10.8 has been concluded.”

2. JAC and Co. Of San Diego v. CalTrans and Wildlife Conservation Board

CalTrans and the California Wildlife Conservation Board are violating the California Environmental Quality Act (CEQA), by allowing the desecration of Walter and Karen’s families human remains, and the significant degradation of the environment and detriment to the community, which two of California’s governors from each major party, Davis and Schwarzenegger, expressly found cannot be mitigated and would be caused by gambling on the U.S. government’s portion of the cemetery, and would also violate California’s Gaming Compact Section10.8.3.

This lawsuit is pending before 3rd District Court of Appeal in Sacramento. JAC and the County’s final brief was filed on July 27, 2015. Oral argument is expected in 90 days. Twice before the 3rd DCA has addressed CEQA’s application to the off-site impacts of Indian casinos, and twice before it has held that such gaming projects must be stopped until they comply with CEQA.

This lawsuit also addresses SDG&E’s initiation of construction of a new power line for one customer, the JIV, in violation of CEQA, and paid for by all non-commercial ratepayers. No other single user is entitled to any exemption from CEQA, which should be enforced equally as to the JIV. No other user is entitled to such ratepayer subsidization of gambling for profit.

3. Rosales and Toggery v. CalTrans

CalTrans is liable for the felonious desecration of Native Americans, Walter Rosales and Karen Toggery’s families’ human remains, when they were unceremoniously dug up, trucked and dumped on CalTrans’ construction site at the junction of SR11-905-125. All of which was done in violation of the Native American Grave Protection Act (NAGPRA), California Environmental Quality Act (CEQA), Health & Safety (H.S.C.), Public Resources (P.R.C.), and Penal Codes, California common law, as well as the violation of their First Amendment rights to the Free Exercise of Religion under the U.S. and California Constitutions.

For its part in the desecration, CalTrans received a quid pro quo of more than a million cubic yards of fill dirt worth tens of millions of dollars, essentially for free, at $.25, instead of $100, per yard. It didn’t even have to pay for transportation to the site.

The Jamul Indian Village (JIV) former chairman, Kenneth Meza has confessed that he not only knew their families were interred on the government’s portion of the 7 acre Jamul Indian cemetery for 20 years, but that he was an eye witness to the excavation of those remains without notice to, or permission from Walter and Karen, who are their lineal descendants.

In addition, 20 eyewitnesses and archaeologist Christopher Dore have corroborated Meza’s admission as to the desecration and later unceremonious dumping of the remains on state property, along with the County Death Certificates, California Dispositions of Human Remains, and the Walter and Karen’s demand for mediation to the San Diego Coroner and the Native American Heritage Commission (NAHC), under H.S.C. 7050.5 and P.R.C. 5097.94-98.

Their state court lawsuit is pending before the 4th District Court of Appeal in San Diego. CalTrans filed a Respondents’ Brief on August 10, Walter & Karen filed their reply brief Aug 31, 2015. Oral argument is scheduled for November 9, 2015 in San Diego.

4. Rosales v. BIA, JIV, Penn National, and C.W. Driver

Walter and Karen have also filed a similar action in the U.S. District Court for the Eastern District of California (Sacramento) to adjudicate the liability of the Bureau of Indian Affairs (BIA), JIV, Penn National Gaming, and C.W. Driver officials for the desecration of their families’ remains on the U.S. government’s portion of the 7 acre Jamul Indian cemetery. The complaint is out for service on the defendants.

Lest anyone think JIV’s building is too big not to be completed, too big to fail, or too big to tear down, let’s review just 8 examples of casinos that have been closed, many where they were being illegally operated and where the land does not qualify for gambling.

  1. Keetowah Casino (United Keetowah Band), Talequah, Oklahoma; Shut down by federal court order Aug 2013, for Illegally operating on land never in trust.
  2. Alturas Desert Rose casino, Modoc County; Closed September 2014
  3. La Posta casino, Boulevard, Cal.; Closed Oct 2012
  4. Three Feathers Casino (Mohawks), Akwesasne, NY; Closed 2013
  5. Meskwaki Casino (Sac & Fox of Miss.), Tama, Iowa; Closed 2003
  6. Bay Mills Indian Community, Brimley MI; Closed in 2011, Not on tribal land.
  7. Chuckchansi Casino, Yosemite, Cal.; Closed by federal court order following armed takeover by one faction.
  8. Wampanoag Tribe, Acquinnah, MA, as the Martha’s Vineyard Gazette reported was enjoined from any construction activity on a casino on July 28, 2015.

This is why we are going to win our lawsuits. No casino, Not Now, Not Ever.

Mis-Statements, Mischaracterizations, and Misrepresentations by JIV and CalTrans

  • Contrary to the falsehoods published by CalTrans and JIV, the JIV casino project is not on land held in trust by the U.S. government for any tribe.
  • The JIV has no land held in trust by the U.S. government. Nor can it have any land held in trust, since it was not under federal jurisdiction in 1934, by order of the U.S. Supreme Court in Carcieri v. Salazar (2009).
  • In fact, a portion of the cemetery was donated in 1978 by the Daleys to the United States for the express benefit of individual half-blood Indian families that were living and dying on the cemetery.
  • The Daley families specifically agreed to the form of the deed so that the United States, as a trustee, would protect the living and the dead against all forms of alienation, trespass, desecration, mutilation, and disinterment.
  • In fact, the JIV is building on 4 acres of the more than 7 acre Jamul Indian cemetery that has been sanctified as a place of worship and a religious ceremonial site since the mid-1800's.
  • The Indian cemetery has always been private property. No different than the gas station owned by the U.S. at the Naval Training Center, or the National Cemetery at Fort Rosecrans.
  • California retains concurrent jurisdiction over all of the more than 7 acre Jamul Indian cemetery.
  • Contrary to CalTrans’ and JIV’s blatantly false statements, the JIV has no right, permit or authorization to desecrate Walter and Karen’s families’ remains, to build a casino on the government’s portion of the Indian cemetery.
  • Such construction is a deliberate violation of the Indian Gaming Regulatory Act, the Indian Reorganization Act, the purported Gaming Compact, and NAGPRA.
  • JIV has never acquired, nor lawfully exercised, governmental power over the government’s portion of the Jamul Indian cemetery on which it is illegally building a casino.
  • In fact, the JIV has never applied to be, nor has been recognized as a tribe under the Indian Reorganization Act. It is nothing but a half-blood Indian community, which is not a federally recognized tribe, and has no inherent sovereignty.
  • In fact, the U.S. government admits that the JIV voluntarily and deliberately elected over 30 years ago not to become recognized, so that they could immediately obtain federal monetary benefits without exhausting their administrative remedies.
  • The listing of a half-blood Indian community in the Federal Register does not create, nor recognize, the JIV as a tribe.
  • Similarly, the state compact does not create, nor recognize, the JIV as tribe. Nor does it grant any governmental power to the JIV over the govt’s portion of the cemetery.
  • In fact, the Compact requires that the JIV prove they applied for recognition, which they haven’t and can’t. In fact, the Compact requires that construction be enjoined until the Compact is amended.
  • In fact, the IRA bars transfer of the government’s portion of the cemetery to the JIV. Hence, the individual half-blood’s beneficial ownership of their families’ final resting place has never been, and can never be, lawfully transferred, in trust, or otherwise, to the JIV.
  • Thus, the JIV has no right, permit or authorization to build a casino on any portion of the cemetery beneficially owned by the individual half-blood Indians, including Walter and Karen.
  • In fact, the JIV has no standing to appear in Court, because it has failed to exhaust its administrative remedies and is not a recognized IRA tribe.
  • The JIV has never petitioned for proclamation of a reservation, and no reservation has ever been proclaimed for the JIV.

Donate to JAC

Please support JAC with your donation to our legal fund. Please send your donations to:
JAC
P.O. Box 1317
Jamul, CA 91935

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