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Post by mdenney on Jan 28, 2007 22:25:31 GMT -5
people report from court hearing
This hearing in not about
-governance of the communites
-membership in communites
-Indian gaming regulations
It is about
-1886 lands and monies
Mr ONeill had five reasons to quash
-no claim agains the tribe, the suit is against the US govt
-recoginzed tribal sovereign immunity
-interior dept and agents cant waive immunity only congress and the community can do that
-court lacks jurisdiciton over internal tribal affairs
-Indians can not sue Indians in federal court(I swear that is what I heard
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Post by mdenney on Jan 28, 2007 22:30:32 GMT -5
Part II
When PI and Shak appeared in court amicus they were just asserting an interest in the corpus of the brief, this did not waive their immunity(Judge L agreed with this)
Judge L wanted to know what interests-if any- were validly transfered in 1980. Since the US held the lands as a trustee they could not transfer them out of the trust
O Neill: 1980 put the lands in trust for the communities/tribes(his words)
Judge: there is no claim for aboriginal sovereignty
O Neill: tribal lands are managed as sovereign, the US does not tell us how to manage
Judge: The US is the only defendent in this case but they could bring suit against the communites
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Post by mdenney on Jan 28, 2007 22:30:57 GMT -5
Part III
O Neill: a decision by this court would be viewed as an affront to sovereigntu and would be appealed. The communitiesare immune from the legal process, if there were a 3rd party discovery and the communities were suponeaed they may not reply. but there may be enough public information for discovery to take place without the communities help.
1886 lands are held in trust and cannot be inherited
Ms. Morodali(sp?) US Lawyer
-communities are not agents of the us government
-no waiver of sovereignty
-only the us can be a defendent, not individual agencies
-court does not have jurisdiction over us government(that is how i heard it)
-if the communities are controlling the trust the us govt is not involved in how it is handled
Judge L: 1980 the us can only transfer what it owns not what it is holding in trust
Ms. M: the communities have no fiduciary obligations to the US to manage the trust to benefit another group
Judge L: 1980 did not terminate the 1886 trust, so what interest do the LDs have? What could the US govt legally transfer to the communities?
Ms. M: US disagree that a trust existed
Judge L: the court must address the status of the 1886 properties-that is what this case is all about
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Post by mdenney on Jan 28, 2007 22:31:20 GMT -5
Part IV
Ms. M: nothing establishes that the communities are acting as agents of the US or that the US is controlling their actions
On the Mr Kaardalls turn at bat:
What made the trust work:
-land assignment system overseen by the US govt
-constitutions of the communites
-a seperat trust fund established in 1934 to benefit the non resident LDs, rent paid by non LDs living on trust land, profits from the gravel company (and I would assume the casinos) went into this trust for the benefit of the non resident LDs
In 1980 the US govt abdicated their duty by not overseeing the land assignments, if you got a land assignment you were a member, if you didnt you werent. If the US still oversaw this system the LDs would be a majority and we would not be concerned over the internal governance of the communities because we would be in controll. (somewhere in here the idea that BQ was invalid was brought up)
Erick produced a letter from an appeal solicitor(?) stating that to get a land assignment you must trace your ancestory back to an 1886 mdewakanton, thus membership.
by requiring BQ the Shak constition is using the wrong standard
LDs are entitled to exclusive use/profit from the land
The closing arguments were just a rehash of what went before
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Post by mdenney on Jan 28, 2007 22:31:40 GMT -5
Part V
you cant ask the judge or lawyers to slow down or repeat what they said so I tried to indicate things that I wrote down that I dont think sound right.
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Post by mdenney on Jan 28, 2007 22:32:01 GMT -5
All this was from the other site
from - beth623
The US lawyer seemed unprepared, even if she is fairly new to this case
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Post by mdenney on Jan 28, 2007 22:32:36 GMT -5
Yes...I believe the Government can't quite get over the facts around the Indian Tucker Act...and how we became a group quite capable of suing the US government...and winning.
basically the tucker act keeps any lawsuit from being held up in appeals
it gives the USFC the same authority as the Supreme Court and vice versa
TUCKER ACT. - The Tucker Act, 28 U.S.C. S 1491, grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment.
The Tucker Act, 28 U.S.C. S 1491, provides in relevant part: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
Tucker Act Shuffle Relief Act of 1997 - Grants each of the U.S. district courts and the United States Court of Federal Claims (Claims Court) original jurisdiction to hear and determine all claims (whether for monetary or other relief) arising out of agency action alleged: (1) to constitute a taking in violation of the fifth amendment to the Constitution; or (2) not to constitute such a taking only because the action was not in accordance with lawful authority. Specifies that such grant of jurisdiction does not extend to matters over which other Federal law has granted exclusive jurisdiction to one or more U.S. courts of appeals.
Provides that the plaintiff, by commencing such an action, elects which court shall hear and determine those claims as to that plaintiff.
Prohibits any third party from being involuntarily joined to a case within the jurisdiction of the Claims Court by reason of this Act if that party would be entitled to a determination of the claim with respect to which that party is joined by a court established by or under article III of the Constitution.
Grants the Claims Court the power to grant equitable and declaratory relief with respect to any claim within its jurisdiction under this Act.
Directs that any appeal from an action commenced under this Act be to the United States Court of Appeals for the Federal Circuit.
Repeals a provision denying Claims Court jurisdiction over a claim for which a plaintiff has pending in another court a suit against the United States or a person acting therefor.
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Post by mdenney on Jan 28, 2007 22:34:07 GMT -5
EldonJ
Re: Back from the hearing
« Reply #53 on Jan 26, 2007, 8:31am »
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Well you would have to think at some point that they will have to admit they have nothing to dispute this with. Of course they will probably never overtly say this but they will probably just follow along with the courts rulings and opinions without too many arguments. I also thought it was interesting that Laura Maroldy mentioned that discovery could be conducted with public information alone without any input from the communities. Also, I would think at some point the communites will be told if they want to act like tribes they will have to find some other land to act as tribes on. Our land cannot be used to operate a tribe on.
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Post by mdenney on Jan 28, 2007 22:35:25 GMT -5
yeah eldon
i would suppose that apply to SMSC since they were founded on '86 land
think the judge is making sure the US cant find anything specific...like a termination act
or some sort of document that states the LDs had given permission to SMSC to form a community at Prior Lake
i know there isnt anything of the kind
we can use IGRA documents to determine damages without SMSC getting involved but that wont remedy the problem
because if the government were to award us damages we can go back the next day and hit the government with the same case
« Last Edit: Jan 26, 2007, 8:48am by The NativeAmerican »
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Post by mdenney on Jan 28, 2007 22:36:44 GMT -5
wastesni
Re: Back from the hearing
« Reply #55 on Jan 26, 2007, 8:58am
All of the revenue information for all three communities is public information with regard to the US Government and the discovery process. I had heard some time back that the case was already in a "silent discovery" mode. One of the comments I had also heard is that any revenue generated by SMSC has already been spent. So basically there's no money there. The other piece is that according to my sources the attorney for the DOJ did not know the meaning of the term "sovereignty" and she was given until the 5th of February to find out what it means. Apparently SMSC and PI don't know the meaning either. Absolutely Pitiful. Embarrassing actually.
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Post by mdenney on Jan 28, 2007 22:38:57 GMT -5
MMDOJackson
Re: Back from the hearing
« Reply #57 on Jan 26, 2007, 11:42am »
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so, basically the hearing yesterday was a reiteration of the motions everyone has been presenting up to this point on the motions to quash. nothing new so now we wait for Judge Lettow to rule. we are becoming very good at playing the waiting game. i relish the time when we don't have to wait anymore and can take control of what was wrongfully taken from us.
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Post by mdenney on Jan 28, 2007 22:39:52 GMT -5
MMDOJackson
Re: Back from the hearing
« Reply #58 on Jan 26, 2007, 11:47am »
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Whether ShakPI (Shakopee & Prairie Island) have money in the bank or not doesn't really matter since our case is against the U.S. Gov't. It really doesn't matter if they've spent it or gave it away. We are still entitled to the amount in the form of damages from the U.S. Gov't. So, no need to worry about something that we have no control over until we are restored then we can start worrying.
I relish the time we can start to worry.
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Post by mdenney on Jan 28, 2007 22:40:56 GMT -5
akitchita
Re: Back from the hearing
« Reply #59 on Jan 26, 2007, 12:13pm »
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When Lettow rules in our Favor on this Past hearing (Jan. 25th), The hearing on Feb. 5th will decide what? and What can we finally expect to begin after the Feb. 5th?
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Post by mdenney on Jan 28, 2007 22:42:12 GMT -5
beth623
Re: Back from the hearing
« Reply #60 on Jan 26, 2007, 3:08pm »
i think that the 2/5 hearing will address plantiffs and intervenors and the adding/deleting names from the M&K list
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Post by mdenney on Jan 28, 2007 22:43:16 GMT -5
waveguide
Re: Back from the hearing
« Reply #61 on Jan 26, 2007, 3:48pm »
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Feb 5th should resolve the lineal descendancy issues raised by the intervenor groups.
One thing that is still out in the open is whether the Gov't will file an interlocutory motion challenging the original ruling on the breach of trust.
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