There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.
First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.
None of that is relevant to this case, apparently. But it really should be.
Second, I have little doubt that the Supreme Court’s decision to grant cert in the Navajo Nation II case, and the recent oral argument demonstrating pretty conclusively that it will reverse the Federal Circuit in that case, influenced this outcome here. Like the Navajo case, there is a strong moral claim that the Wolfchild plaintiffs bring, strong enough perhaps to persuade federal judges that a trust was created. Without going into the merits because I don’t know anything about the trust theories other than reading the opinions, my suspicion is that since the relevant statutes do not have the word “trust” in them (what some circuits have called the “gold standard”), thetrial court had to buy into a creative theory about the creation of a trust. The Circuit, which we must assume, is knowledgable about what will happen in Navajo II. No more moral claims, says the SCT in Navajo II.
Third, money is the root of bad law. If the Navajos won a few million bucks in the first Peabody Coal case, I bet the United States wouldn’t even appeal. But they won $600 million there, maybe over a billion if you count interest. That gets the government’s (and the Court’s) attention. So you get some really bad law out of the SCT. And this case might not be going the way it is if the Court wasn’t so concerned about money. It’s ironic, because the Wolfchild claim is more about how to split up the pie between tribal people than holding the federal government liable, but the outcome is practically the same.
Finally, the Federal Circuit might be stepping back from its burgeoning status as one of the Supreme Court’s favorite whipping boys. The Circuit is one of the newest Circuits and had not been a court from which many Supreme Court case sprung. It handles a lot of intellectual property and Indian cases, so it didn’t get a lot of attention. But in the last five years or so, those familiar with the Federal Circuit see the Supreme Court as doing a lot of oversight over this Circuit, correcting its errors, and acting as though the Circuit is getting too eccentric.