Posted: Wednesday, August 6, 2014 7:30 am
LOGAN — A lawsuit between city of Logan officials and local resident Marshall Lucas, also known as Great Elk Dancer for his Elk Nation, is moving forward with another motion filed, this time by a representative for the Notoweega Nation.
Philip W. Gerth, of The Gerth Law Office in Gahanna, submitted a motion for “leave of court to file an amicus curiae brief” on July 21 in U.S. District Court for the Southern District of Ohio, Eastern Division.
Lucas’ $20 million lawsuit is against Logan Mayor Martin Irvine, Fire Chief Brian Robertson, Police Ptlm. Josh Mowery and Logan City Service Director Steve Shaw.
The lawsuit has been steeped in paperwork since it was initially filed in the district court in June 2013, on a total of 19 complaints stemming from Lucas’ business, Red Door Internet Cafe.
The motion filed in the District Court in Columbus, claims that the court may be “confused by the terminology” used in the case and suggests that the court would benefit from its amicus brief.
The brief was filed in hopes of bringing a sense of better understanding of Lucas’ terminology and claims and in doing so, bring a greater understanding of tribal law to the court.
An amicus curiae is someone who is not a party to a case, who offers information that bears on the case, but who has not been solicited by any of the parties to assist the court. This may take the form of a legal opinion or testimony (the amicus brief) and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court.
However, in response, the city’s attorneys, Todd M. Raskin and Cara M. Wright, filed a brief in opposition to the Notoweega Nation’s motion and asked that the court deny the motion for the amicus curiae brief.
According to the amicus curiae brief, there are four issues that need to be clarified in order to better understand Lucas’ lawsuit.
Issue one: What makes a tribe? A tribe is an artificial construct, such as a corporation or a nation-state. A tribe can have a beginning and a legally-recognized status.
Issue two: What is Ohio’s tribal history? When European settlers entered America, most of the Ohio Valley was claimed by tribal groups. Despite the struggles by the tribes, Ohio sit still 0.3 percent Native American according to the 2013 U.S. Census Bureau numbers.
Issue three: Do tribes only live on reservations? While many assume that Ohio has no tribes, this is not accurate, according to the paperwork filed on July 21. Ohio lost the tribes that chose to live on reservations; a tribe is not defined by living on a reservation. The Notoweega Nation, chose to keep their culture, but live among other Ohioans.
Issue four: How has a tribe historically been recognized as sovereign by the government? A sovereign is generally defined as a person, or group, with either absolute power or absolute authority. A tribe may be recognized as sovereign, and yet act in an unsovereign manner. The brief further described the American history of tribes and sovereignty.
The ways that a tribe is recognized as sovereign are Congress recognizes the tribe’s sovereignty; Congress delegates to the Bureau of Indian Affairs to recognize the tribe’s sovereignty; or a federal court recognizes the sovereignty of the tribe.
In conclusion, a tribe does not need to live on a reservation to be considered a tribe. A tribe does not need the Bureau of Indian Affairs recognition to be considered sovereign. The 78 tribes that rejected the proposal under the Indian Reorganization Act are just as sovereign as those that accepted the proposal. Those tribes that rejected the proposal are just a little harder to keep track of on paper.
According to the motion, there are still tribes in Ohio and Lucas “Dancing Elk” leads one of those tribes. Lucas is claiming that his sovereign rights have been ignored by the City of Logan and others.
The city’s response claims that the “brief (amicus curiae) fails to provide any information that is relevant to the claims pending before the Court and the information contained within the brief is rarely verified with a citation to any authoritative source.”
The city’s response further states that the “Notoweega Nation does not have any special interest in the litigation” and the Notoweega Nation has characterized Lucas’ complaint as “alleging violations of his tribal sovereign rights. However, the doctrine of tribal sovereign immunity is wholly inapplicable in this case as no Indian tribe has been sued in this matter.”
Lucas is asking the court for “injunctive relief and declaratory judgment as well as compensatory damages for the value of the business opportunity or expectancy that was lost as a result of the city’s tortuous and improper interference of his business.”
Lucas believes he has been harassed since he first opened his business in Logan, the Mingo Trading Company. He describes Red Door Internet Cafe as well as the Mingo Trading Company as “tribal” businesses.
In March, agents with the Ohio Bureau of Criminal Investigation raided the Red Door Internet Cafe and seized gaming machines as well as personal computers, laptops, monitors and other equipment. Lucas has since opened an online casino.