Jamul Action Committee
Jamul Action Committee Jamul Action Committee

Legal Update November 11, 2019

Oral arguments will be heard in two appeals before the Ninth Circuit Court of Appeal in San Francisco starting at 9:30 a.m. on Wednesday, November 13, 2019. To watch a live stream of the proceedings, you may go to the court’s website at https://www.ca9.uscourts.gov/. Scroll down the page to the section titled “Live Video Streaming of Oral Arguments and Events” and select the 9:30 a.m. San Francisco case.

Here is a summary of the more than 100 pages of briefing in the two appeals:

1. Walter Rosales and Karen Toggery’s Families’ Appeal will be argued by Pat Webb,. They are appealing Judge Mueller’s August 30, 2019 dismissal of their claims for Unconstitutional and Illegal Desecration and Conversion of their families’ human remains. They have sued the federal BIA officers in Sacramento that failed to enforce the Native American Graves Protection Act, and they’ve sued the individual defendants (Meza, Pinto, Chamberlain, Penn Natl, CW Driver) that disinterred, trucked and dumped the families’ remains under SR 905.

The dismissal should be reversed, because the JIV is not a necessary, required or indispensable party, since it has irrevocably waived any claim in the families’ human remains, as held in the Thorpe v. Borough of Jim Thorpe decision in Pa. in 2011, and since the individual defendants have no sovereign immunity from the families’ claims, as the U.S. Supreme Court held in Lewis v. Clarke in 2017, and the Ninth Circuit has repeatedly decided in Maxwell v. Co. of S.D. (2013) allowing claims against the Viejas paramedics, Pistor v Garcia (2015), and most recently in JW Gaming v. James, on Oct. 2, 2019.

2. JAC’s appeal will be argued by Ken Williams. JAC is appealing Judge Mueller’s August 5, 2016 dismissal of JAC’s claims that the land does not qualify for gambling, because the U.S. Supreme Court holds in Carcieri v. Salazar that since the JIV was not under federal jurisdiction in 1934, it can’t have a reservation or land taken into trust, and therefore gambling on the property remains illegal under the Indian Gaming Regulatory Act.

Dismissal also violates equal protection, because the federal defendants have been unconstitutionally allowing the JIV to have gambling based upon their race, which is an invidious discrimination prohibited by the 5th Amendment.

As with Walter and Karen’s case, JAC also seeks to reverse Judge Mueller’s decision that the JIV is a required indispensable party, allegedly having sovereign immunity. However, under the Administrative Procedure Act, only government agencies can be defendants, therefore the JIV is not a required party.

JIV does not have sovereign immunity because it was not under federal jurisdiction in 1934, when the Indian Reorganization Act was adopted, and did not exist when the U.S. was founded, as the U.S. Supreme Court held in Puerto Rico v Sanchez (2016). The BIA has already finally decided that the JIV never applied for, nor established, that it historically existed before the U.S. was founded. Since that final agency decision was not appealed, it can no longer be overturned.

As in Walter and Karen’s case, the individual defendants, both federal and non-federal, have no sovereign immunity for violating Cal. Const. Art. IV and Penal Code §11225, which prohibit a public gambling nuisance in violation of IGRA, as the U.S. Supreme Court held in Michigan v. Bay Mills Ind. Community (2014).

Both appeals will have the same panel of 3 judges: Bridgett Bade (2019 Trump appointee), William Fletcher (1998 Clinton appointee), and Barry Ted Moskowitz (Clinton appointee, San Diego’s Chief Federal judge 2012-2019).

We expect a decision in both appeals in approximately 3 months. As always, your JAC Board, appreciates your support! If you can help support the fiscal burden at hand, please send what you can, as soon as you can!!!

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

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