FEDERAL JUDGE DISMISSES CASE OVER JAMUL CASINO BY FAMILY MEMBERS CLAIMING DESECRATION OF REMAINS

By Miriam Raftery

Photo: Jamul Indian Village site before the casino

September 3, 2017 (Jamul) - U.S. District Judge Kimberly Mueller, Eastern District of California,  dismissed on August 29^th an amended complaint in Rosales v. Dutschke which sought $4 million in damages for what plaintiffs contend was the illegal and unconstitutional desecration of Native American remains to make way for the Hollywood-Jamul San Diego Casino.

The judge had previously rejected earlier claims brought by Walter Rosales and  the late Karen Toggery, descendants of the Jamul Indian band of the Kumeyaay nation. They contended their family’s remains were illegally removed from the site.  Toggery and her family were forced off the land, their homes razed by the tribe to make way for the casino.

Rosales and other plaintiffs had sued officials at the Bureau of Indian Affairs, Penn Gaming, and individual tribal leaders of the Jamul Indian Village, but did not sue the tribe itself, which has immunity under federal law.

Judge Mueller’s order dismisses the complaint without option to amend, after earlier ruling against plaintiffs on multiple amended complaints.  The judge noted that in resolving the last motion to dismiss, the court “admonished plaintiffs” to comply with a rule requiring that they articulate a “short and plain” statement showing why they believe they are entitled to relief, adding, “This complaint hardly fares any better.”

The judge noted that the plaintiffs did not sue the tribe itself, which has sovereign immunity and has not waived that immunity.  Judge Mueller noted that tribal leaders are protected by that immunity if conducting their official duties.  “Plaintiffs do not specify which defendants intentionally or inadvertently excavated and removed the human remains. Where tribal defendants’ immunity hinges on the nature of their specific conduct, plaintiffs must allege more before the court can assume on a motion to dismiss that Meza, Chamberlain or Pinto excavated or removed any familial remains, and thus are not immune,” the judge wrote.

Mueller further dismissed the case against the federal defendants as well, stating, “The JIV is an indispensable party. This case cannot proceed without JIV, and because JIV cannot be joined, this case cannot proceed on the operative complaint.” 

Toggery, who grew up on the reservation land, died in March of cancer.  Her friend, Marcia Spurgeon, remembered her as a “braveheart” who had fiercely opposed the casino as a “believer and followed the old ways of her ancestors.”

Kim Hamilton, editor of the Deerhorn Valley Antler, told ECM that a request to bury Toggery's ashes at the Francis Xavier cemetery at Jamul Indian Village was denied, adding, "Services were at Pius X instead, and all expenses were covered by donations from Jamul residents."