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Some good news from the Pacific Northwest

25 Apr

Indigenous law banishes a giant B.C. mine

Lessons here for our Graymont suit (no, it’s not dead).

http://www.nationalobserver.com/2017/04/21/news/indigenous-law-banishes-giant-bc-mine

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Preliminary Injunction

22 Mar

We’ve filed a Motion for an Injunction against the DNR sale of Ceded Territory to Graymont. Immediately following our Dismissal, we filed several FOIA requests. Through these FOIA requests, we “discovered new evidence” that shows that DNR Director Creagh agrees with us that the sale will “impact our tribal Treaty rights.”  

This is a “binding judicial admission” simply because his lawyers didn’t challenge the introduction of this “new evidence,” claiming, instead, that we “misrepresented” him by quoting him!

So, due to this “binding judicial admission” by Creagh, we have moved for an Expedited Consideration of a Motion for a  Preliminary Injunction because there is no longer any “genuine issue of material fact” –that is, both sides of this dispute now agree that the sale will impact our Treaty rights– so we’re entitled to an Injunction as “a matter of law.”  

The filings related to all of this are linked below.

60-Memorandum in Support of Injunction
59-Motion for Injunction
58-0-Motion-to-Strike-12-f
56-0-Motion-Rule 21-Plaintiffs
54-1-Binding Judicial Admission
55-Response-to-Motion

STATE’S RESPONSE TO OUR MOTION TO DISMISS

13 Feb

Well, this Graymont case gets curiouser and curiouser.  In its Response, the State has essentially chosen to ignore the facts in our Motion to Dismiss, simply repeating the falsehoods that directly led to our filing of that Motion.  You can read the Response at the link, below, but, they seem to be stuck on a very old mantra
—we don’t have standing;
—the “Graymont deal” has been reduced to about 2,000 acres (a statement that the LTA exposes as simply untrue);
—and this old canard: “the public” still has access to any land we sell (with major exceptions, of course).  

Our response is, has been, and always will be that we are Anishnaabeg People with 1836 Article XIII Treaty Rights and “the State is prohibited from regulating or otherwise interfering with the exercise of such rights [that are our] usual privileges of occupancy” throughout the 1836 Ceded Territory.  (Quote from the 2007 Inland Consent Decree).

These “reserved rights” are not available to “the public.”  In fact, the Land Transfer Agreement between the Sate and Graymont, LLC, states that if we are exercising our Treaty Rights as American Indians on “Graymont lands,” we will be looked at as “trespassers.”

55-Response-to-Motion

Graymont Motion to Reverse Order to Dismiss

28 Jan

On Tuesday, January 26, 2016, we filed a Motion in federal court seeking a Reversal of the judge’s Motion to Dismiss our Graymont lawsuit.

The basis for this Motion is the simple fact that the Defendant appears to have misled the court as to the extent to which the “Graymont deal” would affect the exercise of our treaty rights.  “New evidence” (required under a “Rule 60” Motion) now shows that Keith Craegh admitted that “the maximum impact to Tribal treaty rights is 2681 acres.” (See the linked Exhibit 1)

Further misrepresenting the case to the Court, Creagh, after the Dismissal, claimed that “the Graymont deal was reduced from roughly 10,000 acres to around 2,000 acres.” (see the linked Exhibit 2)

We’re not surprised that the DNR lied to us and the public about the “Graymont deal,” but we are dismayed that they appear to have lied to the Court.  As Native people, we’re used to being treated with contempt by the State, but we never expected the State to act contemptuously toward the federal Court.

Reversal-Motion

Reversal-Motion-Ex-1

Reversal-Motion-Ex-2

“TURTLE-TALK” POSTS ON GRAYMONT SUIT

31 Oct

Turtle Talk (from the MSU College of Law “Indigenous Law and Policy Center”) has a useful page with links to “the most relevant” pleadings, etc., of our “Graymont Suit:”

https://turtletalk.wordpress.com/2015/08/31/pro-se-effort-to-stop-michigan-dnr-land-transfer-to-mining-company-dismissed/

GRAYMONT SUIT — “DISMISSED FOR LACK OF STANDING”

31 Aug

Not surprisingly, the Federal District Court dismissed our Graymont suit “for lack of standing.”  

You can read the Court’s decision here — Denial-Judgemnt

THE LATEST (AND LAST?) GRAYMONT FILING

15 Aug

Four months ago, we asked the judge to issue a “Declaratory Judgment” on whether or not we, as individuals had Treaty Rights under the “Doctrine of Discovery” and the 1836 Treaty of Washington.  Well, because none of us are lawyers, most likely, our request was simply that –a request (that is, we probably didn’t follow proper “procedure”).  So, we reworded that origial “request” somewhat, and filed it as a “Motion for Declaratory Judgment.” It was recorded in the official “docket” on August 13, 2015 (as #49).

Our “Argument” (then and now) is –“The actual controversy in this case can be stated thus: Does the Defendant have a statutory or constitutional right to transfer 1836 Ceded Territory “public land” to Graymont, LLC, for the strip­ mining of limestone, which will result in the abrogation of Plaintiffs’ rights; rights that are protected under the terms of the “Doctrine of Discovery,” secured to them under the US Constitution; rights that are further protected under the ”usual privileges of occupancy” language of Article XIII of the 1836 Treaty of Washington; rights have been fairly, equitably, freely, fully, and conclusively resolved and secured to the Plaintiffs under the procedural and substantive provisions of the 2007 Consent Decree?”  Plaintiffs say no, defendant says yes.

The entire filing can be read here —Motion-Declaratory-Judgment  

The title to this post begs this question –Is this the last filing in this case?  The answer is –most likely.  We now have two motions that we’ve requested “Expedited Consideration” for, so we’re hoping the judge will rule on this case soon.  We’ll keep you posted.

Latest Response to the State in our Graymont Lawsuit

29 Jul

In response to our Motion for Summary Judgment, the State claimed that, because we lacked “standing,” the court lacked jurisdiction to even hear the case.  Their “argument” then leads them to a simple refusal to address any of the substantive issues raised by our Motion. Here’s the text of our rebuttal: 

PLAINTIFFS’ RESPONSE TO THE DEFENDANT’S OPPOSITION
TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGEMENT

RESPONSE

In his Response, Defendant’s Counsel makes the claim that this “lack of standing divests the Court of jurisdiction,” failing, apparently, to read Section 1.3 of the 2007 Inland Consent Decree, to wit: “The Court shall retain jurisdiction over the Parties and subject matter of this action to enforce this Decree.” Consequently, implementation of Section 1.3 is not dependent for its enforcement on anything other than the inherent power of the Court. So, despite the repeated, spurious, and vexatious “arguments” of the Defendant’s Counsel to the contrary, Plaintiffs wish to remind this honorable Court that they have argued repeatedly throughout the course of this case that they are not coming before the Court under the guise of their “standing” under the 2007 Inland Consent Decree. In fact, Plaintiffs have argued that, under Section 1.3 of the Consent Decree, the issue of “standing” is moot.

Consequently, Plaintiffs state, once more, that they seek relief under the US Constitution: Article VI, Clause 2; and the 14th Amendment.

The 1836 Treaty of Washington is the Supreme Law of the Land, and the Honorable Judge Maloney is bound thereby, and anything in MCL 324.2131 of the State of Michigan to the contrary notwithstanding. Article VI, Clause 2, US Constitution

The “usual privileges of occupancy” are fundamental rights inherent in the liberty of the Plaintiffs, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, American Indian Plaintiffs may not be deprived of those rights and that liberty. 14th Amendment, US Constitution

Latest Filings in our Fight Against Graymont

20 Jul

We recently filed two “briefs” in federal court in our fight against Graymont.  The texts are linked below.  One is our response to the state related to our request for Class Action status.  The other is the text of our Motion for Summary Judgment, seeking a Permanent Injunction against the transfer of over 11,000 acres of Ceded Territory, which we contend will violate our “usual privileges of occupancy” rights guaranteed to us in the 1836 Treaty of Washington, which were “fairly, equitably, fully, finally, and conclusively resolved” by the 2007 Inland Consent Decree.  Links to the Treaty and the Consent Decree can be found on this website.

All of the State’s filings, and those of the Grand Traverse Bands, and Graymont, as well, challenge our “standing” to bring this suit.  Our responses lay this to rest.  We cite the recent Supreme Court’s “Marriage Equality” case in support of our “standing” under the 14th Amendment Due Process and Equal Protection clauses.

Response-to-Class-Action-Response-for-posting

Permanent-Injunction-for-posting

More Graymont Filings

23 Apr

I’m not going to post everything here, today, but things are heating up –proof that we have their attention.  “Their” in this case is both the State and Graymont, who has decided to file an action claiming the judge should throw out our suit because we “failed to state a claim upon which relief can be granted.”  The state filed a similar suit, and we answered it today (April 23rd).

The state also filed another document claiming they didn’t have to meet the court-ordered 21-day deadline.  They argued that the court is essentially wrong –they claim they had 28 days.  What is at stake in this argument is the requirement that the Court grant our “relief” –the imposition of a temporary injunction.  As I read the law, the state can certainly argue against the injunction, but only after it’s imposed as a result of their failure to respond to our original motion, as was claimed in the other of today’s filings.

One of the motions I filed today contained a “request for relief” that the temporary injunction required under the Default statute be “upgraded” to permanent.  

Our Hearing is set for the 29th in Kalamazoo –3:00 in the federal court, there.  Stay tuned ……..