Walter Rosales and Karen Toggery's most recent complaint accuse BIA of allowing building over their ancestor's graves!
BIA Regional Director Amy Dutschke and Division of Environmental, Cultural Resources Management and Safety Chief John Rydzik argued that the claims asserted by Rosales and Toggery fail and should be tossed without leave to amend.
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| BIA DIRECTOR AMY DUTSCHKE |
The plaintiffs "fail to state a claim, and both Dutschke and Rydzik are entitled to qualified immunity in any event," the BIA officials said in their reply brief.
The former tribal leaders first launched their suit in May 2015, naming casino developer Penn National Gaming Inc., its subsidiary San Diego Gaming Ventures LLC, construction company C.W. Driver Inc. and a handful of Jamul Indian Village officials as defendants as well.
They alleged their families' remains and funerary objects were illegally dug up from the cemetery and dumped — without their consent and without compensation — despite their preference as descendants to leave the remains in place.
In May, U.S. District Judge Kimberly J. Mueller dismissed a previous 97-page iteration of the complaint, calling it "caustic and argumentative," and saying it ran afoul of federal rules.
The judge ordered the plaintiffs to file a shorter complaint, prompting Rosales and Toggery to file a third amended complaint at the beginning of July.
The former tribal leaders recently argued that they had sufficiently pled claims against Dutschke and Rydzik, and that a jury trial should take place with respect to their alleged violations of Rosales and Toggery's First and Fifth Amendment rights and of the Native American Graves Protection Act, Religious Land Use and Institutionalized Persons Act, Administrative Procedure Act, Federal Tort Claims Act and California common law.
But Dutschke and Rydzik shot back Tuesday that the plaintiffs had failed to state either a First or Fifth Amendment claim against them, that their tort claim fails for lack of jurisdiction and for failure to state a claim, that NAGPRA does not waive the U.S.'s sovereign immunity, that they had failed to state an APA claim and that state law does not apply to either federal agencies or their employees.
"Plaintiffs' 'cause of action' for declaratory and injunctive relief fails because there is no such cause of action under federal law; declaratory relief is merely a remedy available if plaintiff has an independent claim," the BIA officials added.
Earlier this week, Rosales and Toggery responded to a separate attempt by three companies and the tribal officials to dismiss the suit.
They rejected those defendants' contention that their complaint failed to join a required party, the tribe, to the suit, meet pleading standards or state a claim, in addition to the tribal officials' contention that they are protected by sovereign immunity
6 comments:
There is no end to the corruption by Amy, she is a horrible and evil person. She has helped to destroy the lives of so many Natives. She deserves to rot in jail, and her family deserves to suffer like all of ours have. She hides behind her position, but that will not be forever Amy, one day you will have to pay and it will be horrendous, because it will be the justice of thousands of people. You think you are better than true natives, ha. You and your nieces have got to go and I hope it is fast for us and a slow torture for you.
At some point Indians are going to have to understand that they can't expect the BIA to protect individuals from the actions of their leaders. Case in point is now Jamul. Not to defend the BIA's actions, but the tribe's (I use the term loosely here since Jamul has a rather dubious claim to federal recognition) leaders initiated this effort to participate in tribal gaming. The BIA's role in this was to assist the tribe in getting trust land approved for gaming.
That is actually the BIA's job. They are in the business of helping tribes with their gaming efforts to provide economic development, revenue, and general welfare programs for tribal members. Gaming revenue relieves the burden for financing tribes from the federal government. Although gaming tribes are still eligible for federal programs, gaming revenue provides much more support for tribes than federal programs and services provide.
The destruction of burial sites and funerary artifacts obviously took second place to the enticement of gaming revenue. I say this tongue in cheek, but the BIA does not benefit of tribal gaming revenue, and the employees of the BIA have no vested interest in tribal gaming revenue. It is also not the BIA's job to enforce NAGPRA though the BIA must observe the regulations.
I am no fan of Amy Dutschke, but this appears to be an internal tribal matter where some members disagree with the choice of the casino site and the fact that the remains of their ancestors were not properly cared for. The attempt to make the construction company, the gaming management company, the BIA, and certain tribal members responsible will find little traction in federal court.
Why do you have a picture of Robert Smith posted here as Amy Dutschke.
Or is that really Amy Robert Smiths twin sister.
She is one UGLY bitch with onion breath.
amy dutschke and her niece sarah have done so much damage in Indian country and it's sad,they're ugly inside and out.I wish the worst for them both.
These Court cases keep getting handed over to the Judges that don't know shit about the Indians or the Customs and Traditions 0f the Tribes involved so they just pick there noses and claim that they can't get involved because of the Sovereignty issue.
When will they realize that the Tribal Leaders are using this like a loaded shotgun to kill off real Native Americans.
What would happen if a Tribal member were to shoot back at these so called leaders and hurt one or more of them and claim Sovereignty.
The courts would try and convict that person and would give them life in the Federal Prison system.
But it's ok to take the lives of real Native Americans and face no justice.
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