Zephier v. United States & Wolfchild v. United States Cert Petitions


Wolfchild v US Cert Petition

Zephier v US Cert Petition

Wolfchild questions presented:

1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.

2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.

3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.

Zephier questions presented:

I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?

II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?

III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”

IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?

Lower court materials here.

4 thoughts on “Zephier v. United States & Wolfchild v. United States Cert Petitions

  1. Elizabeth Duc March 14, 2014 / 7:54 pm

    Why no comment from supreme court on the denial judgement???

  2. Matthew L.M. Fletcher March 17, 2014 / 9:32 am

    The Court rarely expresses its reasons for declining to grant cert. Justice Kagan likely recused because the matter may have crossed her desk when she was the Solicitor General.

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