US Asks Court To Dismiss Land Into Trust Complaints That Refer To Constitution

This one could set a major precedent.

The Department of Interior is asking the Second Circuit Court of Appeals to dismiss any complaint in land into trust lawsuits that refer to the U.S. Constitution.

Back in June of this year the DOI made the decision to take 13,004 acres of land in Oneida and Madison counties into trust for the Oneida Indian Nation which was immediately followed by the state, counties and some private organizations filing lawsuits against the DOI.

The motion to dismiss, according to Rochester Attorney Dave Shraver, refers to the first, second, and 17th complaints in the suit.

The first complaint says the delegation of authority from Congress to the Bureau of Indian Affairs is unconstitutional.

The second also refers to the delegation of authority, as it relates to the Tenth Amendment in the Constitution.

The amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

County Attorney S. John Campanie said that the DOI's plan to take the acreage from New York state is contrary to the amendment.

The 17th complaint in the suit relates to the Indian Gaming Regulatory Act, which requires a two-step process. The state is arguing that the decision exceeds the authority of the DOI and that the decision cannot be made without the governor of the state and the secretary of the interior agreeing.

The state will respond that the points are valid, forcing the DOI to argue those issues before the rest of the complaints are addressed.

"If we win on one of those points, we win the whole case. If we lose, the case is still alive because the issues are still on the table," Campanie said.

The request to dismiss the complaints that argue the constitutionality of the DOI decision is scheduled to be heard by Judge Lawrence Kahn in Albany on November 7.

Full Article:
http://www.oneidadispatch.com/site/news.cfm?newsid=20154933&BRD=1709&PAG=461&dept_id=68844&rfi=6

In other news……

From the North County Times website

http://www.nctimes.com/articles/2008/10/06/news/sandiego/z95be7222ee822e0a882574db00063855.txt

A Federal Appeals court on Monday said the San Pasqual tribe in North County can sue the state for limiting its number of gaming devices.

The decision bolsters San Pasqual's bid to add 400 slot machines to its Valley Center-area casino. The tribe is fighting the state's interpretation on the number of slot machines allowed under a 1999 agreement that gives the OK to Indian gaming.

Last year, a federal trial court judge ruled that San Pasqual could not sue the state over the issue unless the more than 60 tribes who signed the 1999 Indian gaming agreement were involved.

But Monday, the 9th Circuit Court of Appeals ruled that all tribes did not have to take part in the suit.

The recent ruling came as little surprise. In August, the 9th Circuit ruled that a similar case ---- filed by a Northern California tribe and raising the same issues ---- could go forward. That ruling served as precedent for Monday's ruling in the San Pasqual matter.

It was also the precedent in a case filed by North County's Rincon tribe, which sued over the exact same issue.

Joe Navarro, president of the San Pasqual Casino Development Group, called the ruling "wonderful news."

"We've been looking forward to this outcome for some time," he said.

Thus far, the courts have looked only at whether the suits could proceed. The judges have not considered merits of San Pasqual's or Rincon's arguments. Each of the local tribes are fighting to increase the number of slot machines on their casino floors from about 1,600 to 2,000.