* Counsel of Record. No. Petition for of Certiorari United States Court for the District of Columbia Circuit THE UNITED THE UNITED STATES OF

Similar documents
Case 2:12-cv JAM-AC Document 57 Filed 01/30/13 Page 1 of 13 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Case 1:05-cv JGP Document 79 Filed 03/05/2007 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Case3:11-cv SC Document22 Filed10/28/11 Page1 of 23

No ARNOLD SCHWARZENEGGER, Governor of California; State of California,

Case 1:12-cv BAH Document 28 Filed 01/11/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT. Plaintiff and Appellant, Intervener and Respondent

RESERVATION OF RIGHTS A look at Indian land claims in Ohio for gaming purposes. By Keith H. Raker

Case 1:12-cv BAH Document 105 Filed 12/22/14 Page 1 of 27

United States Court of Appeals, Sixth Circuit F.3d 960. Argued: March 10, 2004 Decided and Filed: May 24, 2004

Case 1:07-cv WMS Document 45 Filed 11/20/2007 Page 1 of v - 07-CV-0451-WMS

Supreme Court of the United States

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT. STAND UP FOR CALIFORNIA et al. Plaintiffs and Appellants,

No IN THE Supreme Court of the United States

Indian Gaming has become a near 30 billion-dollar-a-year

Case at a Glance. Can the Secretary of the Interior Take Land Into Trust for a Rhode Island Indian Tribe Recognized in 1983?

LEGAL UPDATE CALIFORNIA INDIAN LAW ASSOCIATION 17TH ANNUAL INDIAN LAW CONFERENCE

No IN THE SUPREME COURT OF THE UNITED STATES LUMMI NATION, ET AL., PETITIONERS SAMISH INDIAN TRIBE, ET AL.

Case 1:16-cv AWI-EPG Document 1 Filed 12/21/16 Page 1 of 18

Case 2:12-cv RAJ Document 13 Filed 10/25/12 Page 1 of 16

Case 1:17-cv BAH Document 24 Filed 01/16/19 Page 1 of 69 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MEMORANDUM OPINION

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA APPELLANT S OPENING BRIEF ON THE MERITS

California Indian Law Association 16 th Annual Indian Law Conference October 13-14, 2016 Viejas Casino and Resort

In the Supreme Court of the United States

In The Supreme Court of the United States

Municipal Annexation, Incorporation and Other Boundary Changes

Case 1:17-cv SMR-CFB Document 13 Filed 06/01/18 Page 1 of 11

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

SUPREME COURT OF THE UNITED STATES

STATE OF MICHIGAN COURT OF APPEALS

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Case 1:14-cv Document 1 Filed 03/20/14 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. Plaintiff, Case No.

Case 2:16-cv TLN-AC Document 28 Filed 03/04/19 Page 1 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

In the Supreme Court of the United States

Case 2:16-cv AWI-EPG Document 29 Filed 05/12/17 Page 1 of 41

AMENDING THE OKLAHOMA MODEL TRIBAL GAMING COMPACT. by Graydon Dean Luthey, Jr. of the Oklahoma Bar*

No IN I~ GARY HOFFMAN, SANDIA RESORT AND CASINO, Respondents.

Jackson Rancheria Tribal Council Ordinance No Sale, Consumption &

Case 1:17-cv SMR-CFB Document 49 Filed 10/01/18 Page 1 of 34 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

Municipal Annexation, Incorporation and Other Boundary Changes

~Jn tl~e Dupreme C ourt of toe i~tnite~ Dtate~

No DAVID MICHAEL DAVIS, Petitioner, THE STATE OF MINNESOTA, Respondent. BRIEF FOR THE STATE OF MINNESOTA IN OPPOSITION

No In the UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

WILDERNESS ACT. Public Law (16 U.S. C ) 88 th Congress, Second Session September 3, 1964

NORTH CAROLINA COURT OF APPEALS

Case 2:14-cv TLN-CKD Document 19 Filed 03/05/15 Page 1 of 11

Supreme Court of the United States

Case 2:16-cv TLN-AC Document 22 Filed 08/24/17 Page 1 of 11

Case 1:11-cv RWR Document 58 Filed 07/19/12 Page 1 of 12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SUPREME COURT OF THE UNITED STATES

No KICKAPOO TRADITIONAL TRIBE OF TEXAS, STATE OF TEXAS, Respondent.

THE WILDERNESS ACT. Public Law (16 U.S.C ) 88th Congress, Second Session September 3, 1964 (As amended)

Stand Up For California! "Citizens making a difference" Modern day western land grab Indian tribes blockading private property

Barry LeBeau, individually and on behalf of all other persons similarly situated, United States

MEMORANDUM OF AGREEMENT

Case3:12-cv CRB Document32-1 Filed06/22/12 Page1 of 10

IN THE SUPREME COURT OF THE UNITED STATES. No. A- UNITED STATES OF AMERICA, APPLICANT JICARILLA APACHE NATION

Attorney General Challenges Casino Plans. Ponca Tribe Responds To Nebraska Lawsuit

Case 1:12-cv BAH Document 1 Filed 12/19/12 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No i.. STATE OF MICHIGAN, THE SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Respondent.

SAULT STE. MARIE TRIBE OF CHIPPEWA

Stand Up For California! "Citizens making a difference"

Case 2:13-cv KJM-KJN Document Filed 02/12/16 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Case 5:15-cv RDR-KGS Document 1 Filed 03/09/15 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

CONSTITUTION OF THE CALIFORNIA VALLEY MIWOK TRIBE OF THE SHEEP RANCH RANCHERIA PREAMBLE

Jun 16, Jennifer A. MacLean (pro hac vice application pending) PERKINS COIE LLP

DISTRICT OF COLUMBIA OFFICIAL CODE

NC General Statutes - Chapter 53 Article 17B 1

CHAPTER Committee Substitute for House Bill No. 7019

Nevada UCCJEA Nev. Rev. Stat. 125A.005 et seq.

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Chapter IV RULES FOR CIVIL CASES

TITLE I YAVAPAI-PRESCOTT INDIAN TRIBE WATER RIGHTS SETTLEMENT

Supreme Court of the United States

Case 1:13-cv Document 1 Filed 06/06/13 Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION MOTION TO REMAND

15-20-CV FOR THE SECOND CIRCUIT. ALLCO FINANCE LIMITED Plaintiff-Appellant

Iowa Tribe of Kansas and Nebraska v. Salazar: Sovereign Immunity as an Ongoing Inquiry

Ashe County, NC Ordinance Chapter 163: Regulation of Wind Energy Systems

BOUNDARY COMMISSION St. Louis County, Missouri RULES

REPORT TO THE LEGISlATURE ON IN MINNESOTA

STATE OF MICHIGAN COURT OF APPEALS

AMENDED AND RESTATED TRIBAL-STATE COMPACT BETWEEN THE STATE OF CALIFORNIA AND THE SHINGLE SPRINGS BAND OF MIWOK INDIANS

Public Law Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.

No. IN THE SUPREME COURT OF THE UNITED STATES. BOB BURRELL and SUSAN BURRELL,

1IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Case 1:15-cv SAB Document 1 Filed 03/17/15 Page 1 of 25

Jamestown S Klallam Tribe

A. The Board of Adjustment members and appointment procedure.

IN THE COURT OF APPEALS OF THE STATE OF OREGON

No NORTH STAR ALASKA HOUSING CORP., Petitioner,

~n ~e ~upreme g;ourt o[ t~ i~init ~ ~tat~

Supreme Court of the United States

IN THE COURT OF APPEALS OF THE STATE OF OREGON ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) RELATORS-APPELLANTS OPENING BRIEF

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) )

United States Court of Appeals for the Federal Circuit

NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT THE TULALIP TRIBES OF WASHINGTON,

In The Supreme Court Of The United States

MONTGOMERY COUNTY PLANNING DEPARTMENT

South Carolina General Assembly 115th Session,

Transcription:

No. '' 1r:r~me Court L E THE UNITED THE UNITED STATES OF Petition for of Certiorari United States Court for the District of Columbia Circuit AND CHEROT * Counsel of Record WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001

ii Plaintiffs Appellants below Cities of Roseville, Rocklin and Lincoln, California addition to JJ.a. 1 "t-""',,.""'.. Citizens for Safer Communities. Defendants and below included Neal McCaleb, in official capacity as United States Assistant Secretary of the Interior of in addition to Respondents Gale A. Norton, in capacity as United States Secretary the Interior, M. Jaeger, in official capacity as Regional Director for the Pacific Region of the United States Department of the Interior, Bureau of Indian Affairs, The United States Bureau of Indian Affairs, The United States '"'"""'rt- 1 ""'.a. 1 nt- of the Interior and The United States of America. OF... "... "..... Statement Facts.... 2. THE... 8 3... i......

TABLE OF Page Cal~fornia v. Cabazon of Mission 1uu~u1i0. 480 U.S. 202 (l 987)... 5 & Siuslaw v. 116 F. 155 2000)... 10,11 Traverse of Ottawa and Chippewa 1niuw"1:s v. United States, 198 F. Supp.2d 920 (W.D. Mich. 2002)... 11 Traverse Band of Ottawa and '""',...,,_,...,,,,,,,,,."""'" v. United States, 46 F. Supp.2d 689 1999)... 10, 1 THE No. CITIZENS FOR SAFER V. 25 U.S.C. 1300/, et seq.... 2 25 U.S.C. 13001-2... 2, 7 25 U.S.C. 2701, et seq.... 3 25 U.S.C. 2719... 3, 5, 6, 7, 12 New World Dictionary of ~ i-,...,.. (Simon & Schuster, Inc. 1991)... 9, l 0 THE UNITED STATES DEPARTMENT OF THE THE UNITED STATES OF voit ~.ru11 for Writ Certiorari United States Court of rau11-1..., for the of,.,,._,,...,...,... FOR WRIT OF entered in this case.

2 JURISDICTION judgment of the Court of Appeals was entered on November 14, 2003. This was filed February 11, 90 days the date of the judgment bclow. Thejurisdktion 28 U.S.C. 1254( Lands to be The Auburn Indian Restoration seq. (2003) ("AIRA"), provides 25 U.S.C. 13001-2. Transfer of Lands to be taken in trust PROVISIONS 1300/, et part as follows: to be in trust The Secretary may accept any real property located in Placer County, California, for the benefit of the Tribe if conveyed or otherwise transferred to the Secretary if, at the time of such conveyance or transfer, there are no adverse legal claims on such property, outstanding mortgages, or taxes owed. The Secretary may accept any additional the Tribe's service area to the the the Act 18, 1934 (25 U.S.C. 461 et Former trust lands Rancheria Subject to the conditions specified in section, real property eligible for trust status this section shall include fee land held by the White Oak Ridge Associa- Indian owned fee land held communally pursuant to the distribution plan prepared and approved by the Bureau of Indian Affairs on August 13, 1959, and Indian owned fee land held by persons listed as distributees or dependent members in such distribution or or dependent members' Indian heirs or successors 25 17, 1988 unlessare former rpc'pr"l.t~tltcln or trust

Exceptions 4 (1) Subsection (a) of whennot apply the Secretary, after consultation with the Indian tribe appropriate local including officials tribes, determines that a gaming establishment on acquired lands would in the best interest of the tribe and its and would not be detrimental to the surrounding community, but only if the Governor the State in which the gaming activity is to be conducted concurs in the Secretary's determination; or (B) lands are taken into trust as of - a settlement of a the initial reservation an Indian tribe acknowledged by Secretary under Federal acknowledgment process, or the restoration of lands that is restored to 5 1. Statement of Facts Auburn Indian Band is a band of Indians (numbering fewer than 250) that formerly resided on the outskirts of Auburn, California, about 40 miles northeast of Sacramento and about the same distance from the subject land on which the Band erected a gambling casino. In 1917, _LLcuu ~ii~ acquired 20 acres trust Band in added 20 acres. These 40 acres became know as the Rancheria. 1958, Congress passed the Q.,,... 11 "',..'" Act that terminated the Auburn Rancheria and 40 others. By 967, the Commissioner of Indian Affairs transferred to all the rancheria to the

6 25 U.S.C. 2719(b)(l)(A). There were exceptions to this prohibition, however, including an exception for lands "taken into trust as part of... restoration of lands for an that is restored to Federal recognition," IGRA 25 2719(b )(1 )(B)(iii). In June 1998 and October 1..:>UUTlUl.l...,U applicathe the Bureau of Indian parcels taken l, l 00 acres, neither nor contiguous to the rancheria, for residential and community purposes, acres within the former rancheria for cultural, religious and recreational purposes the 50 acres at issue, historically and geographically (by some 40 miles) removed former rancheria, for casino gaming purposes. In 2002, UAIC dropped the requests for residential, commureligious and recreational lands and asked only for the 50 acres for the casino. 7 gaming parcel is located on ~U H~,~A County, California. While not close to the...".l.,,,,h,,...., by to the proceedings The gaming parcel is less than two miles away and planned residential neighborhoods within the cities and within one-and-one-half miles of community schools. These cities are rapidly growing and densely IJ'-' -''".,'"'~"' u. At the time of the trust application and up until the was taken into trust, Stations Casinos, a Nevada owned the gaming Stations Casinos now uu AA... J-..""'"' the UAIC casino. whose residents passed... UAO~ HU ~,~.._, resolutions opposing to taken into trust for casino gaming, and objections to the studies showing how casino,... uu.,..,

8 adjacent to the three cities' and suburban communities, but remote from, separate from and otherwise wholly unrelated to UAIC's former for the massive casino. By Order dated July 8, 2002, the District Court granted UAIC's to intervene and consolidated motion for a preliminary._.,,..,uu u with the proceedings on the merits. The Court held two hearings, on 27, 2002 and September 9, 2002, and announced its decision ~t the latter hearing. The granted Defendants' motion to dismiss part, granted Defendants' motion for summary judgment in and denied motion for summary judgment, disposing complaint in its entirety. The Court followed the 9, 2002 decision with a UU>;;,UA'-'Ul dated 11, 2002. timely Notices of Appeal on September 9, 2002 and September 24, 2002. On November 2003, the United States Court of Appeals for the District of Columbia Circuit issued its decision affirming the decision of the District Court. 1 a, This for a writ 9 FOR GRANTING THE PETITION Section 20 of IGRA prohibits casino on in trust by the United States after October 17, 1988 are neither located within nor contiguous to the of existing lands, Secreta~y Interior determines, inter alia, not be to the " Section 20 also contains exceptions to including where are taken into trust as part of "the restoraof lands for an tribe that is restored to -'-""'""'"'A' u recognition." At issue here is this "restoration of lands" which invoked Court of approved so Secr~tary could, as she did, ignore confronting the and possibly disqualifying impa~t

10.....,'""......,... ~ u ~ or unimpaired state or 2. a representation or reconstruction of original or structure, as of a building, fossil animal, etc.; 3. something restored. itself means: I. to give back (something 2, to bring back to a or.u'vjau.,u......,.... u, as by repairing, rebuilding, altering etc. restore a building, painting, etc.]. also Confederated Tribes of Coos, Lower Umpqua Indians v. Babbitt, 116 F. Supp.2d 155, 162 2000) ("Confederated Tribes"); Traverse Band of Ottawa and Indians v. United States, 46 F. 689, 696 Mich. 1999) Traverse...,... u"'"" on synonym "restitution" a different or a more attenuated meaning is unavailing. Restitution means: 1. a giving back to the rightful owner of something that been lost or taken away; 2. making good loss or damage; 3. a return to a condition or..,.h.. U.H'VU. at 144. Nowhere in these be they dictionary definitions or judicial considerations, is there for the Court of Appeals' definition of "restoration" any and land Placer County the Secretary without for of putting reconstruction, return to a condition or ~ -~.. ~ or similar "restoration." In order for there to have been a true "restoration," there must have been a consideration of, and there must have been established, some link, some nexus, between 50 acres and pre-termination between what was lost and was being restored. There was none of this ~...,H.JU of Court Appeals in the aec1s1cm

12 "would not be detrimental to the surrounding,,.,.,.,n-.,,.,"'"~~ -t,,-- before excepting it from the general prohibition on casino gaming. Congress knew well deleterious effects. on residential communities such as the Cities Roseville, Rocklin and Lincoln of placing casinos in their That is one reason why placement near these is the exception, not only there is no disqualifying detrimental But under the Court of Appeals' decision below, the objections on these very grounds "were... not legally relevant." App. 4a. As a consequence of this determination of irrelevance, the that Congress expressly thought it was preis happening. 3 by effectively stripping "restoration" any substantive meaning and relegating the fact-based and objections to legal irrelevancy, the of Appeals left Petitioner and the cities with no voice in one of the most issues affecting them and put future of the communities and the neighborhoods into hands of eleto the values of tens neglected was any balance m Court of was approving. No one denies that American Indians have been severely hurt by generations of subjugation, appropriation and physical harm. But here, the case presented is of a few hundred Indians, already have AU.A ~ u._, of dollars and likely already per capita exceeding that of citizens Roseville, ~~~-..,.>c,.,, whose narrowly based gaming interest is... f-'u''j'-. the widely based interests of thousands of families. Clearly, this was a case where, had the Secretary examined factors she should have, there was room for accommodation. But the Court of Appeals rejected-in fact * Counsel of Record 155 Connecticut Suite 1200 N.W. TJ:>fll..... Cl1"\IU such U'U.l<.U.U,;.lUJO.,