Matthew L.M. Fletcher

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2016-2017update.html
Petitions for certiorari recently were filed in the following featured cases:
Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water Right – Groundwater)
Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (Federal Reserved Water right – Groundwater)
Hackford v. Utah (Reservation Diminishment; Definition of Indian Country; Tribal Criminal Jurisdiction)
Williams v. Poarch Band of Creek Indians (Employment; Trival Sovereign Immunity)

U.S. Federal Courts Bulletin
http://www.narf.org/nill/bulletins/federal/2017.html
Bishop Paiute Tribe v. Inyo County (Tribal Law Enforcement)
Northern New Mexicans Protecting Land, Water, and Rights v. United States of America (Right of Way – Trespass)
Pueblo of Pojoaque v. State of New Mexico (Tribal State Compacts)
Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation (Jurisdiction, Trespass)
United States ex rel. Cain v. Salish Kootenai College, Inc. (Tribal Colleges – False Claims Act)
Navajo Nation v. San Juan County (Election Districts – Gerrymandering)
Ramah Navajo Chapter v. Jewell (Official Tribal Government)

Tribal Courts Bulletin
http://www.narf.org/nill/bulletins/tribal/2017.html
Colebut v. Colebut (Negligence – Trip and Fall)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Health & Welfare section, read about possible U.S. legislative impacts on health care in Indian Country.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2017.html
The following articles were added:
Tribal sovereign immunity from preference claims.
The Master’s tools: Tribal sovereignty and tribal self-governance contraction/compacting.
No connection: The issue of Internet on the Reservation.
Swinomish Indian Tribal Community v. BNSF Railway Co. and its effect on litigation challenging BIA’s new rights-of-way regulations.
Making it work: Tribal innovation, State reaction, and the future of tribes as regulatory laboratories.
Traditional ecological disclosure: How the Freedom of Information Act frustrates tribal natural resource consultation with Federal agencies.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html
The following bills were added:
S.1593: A bill to provide grants to States and Indian tribes to reform their criminal justice system to encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes.
H.R.3211: Safeguard Tribal Objects of Patrimony Act of 2017.

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2017.html
We feature notices from the Bureau of Indian Affairs regarding land acquistions for both the Chickasaw and Cherokee Nations.

Split Tenth Circuit Panel Rules HUD Illegally Recaptured NAHASDA Funds but Tribes Cannot Recover

July 26, 2017August 30, 2018Matthew L.M. Fletcher1 Comment

Here is the opinion in the consolidated appeal captioned Modoc Lassen Indian Housing Authority v. United States Department of Housing and Urban Development.

An excerpt from the lead opinion:

These consolidated appeals arise from a government agency’s decision to recapture, via administrative offset, funds that the agency allegedly overpaid to multiple grant recipients. The grant recipients brought suit in federal court, arguing in relevant part that the agency lacked authority to recapture the funds without first providing them with administrative hearings. The district court agreed and ordered the agency to repay the grant recipients. The agency now appeals that order.

If these underlying facts sound relatively straightforward, it’s because they are. But they nevertheless give rise to three legal questions that are decidedly less so: (1) did the agency recapture the funds pursuant to a statute or regulation that imposed a hearing requirement, thus rendering the recaptures illegal; (2) if the agency didn’t recapture the funds pursuant to such a statute or regulation, did it have authority to recapture the alleged overpayments at all; and (3) if not, must the agency reimburse the grant recipients for the amounts it illegally collected?

In answering the first of these three questions, the panel unanimously agrees that the agency didn’t recapture the funds pursuant to a statute or regulation that imposes a hearing requirement. Thus, we agree that the district court erred in ruling that the recipients were entitled to hearings before the agency could recapture the alleged overpayments.

But that’s where our unanimous agreement ends; the remaining questions divide the panel. Ultimately, two members of the panel agree that the agency lacked authority to recapture the funds via administrative offset. Accordingly, we affirm the portion of the district court’s order that characterizes the recaptures as illegal. Nevertheless, two other members of the panel agree that if the agency no longer has the recaptured funds in its possession, then the district court lacked authority to order the agency to repay the recipients. Thus, we reverse that portion of the district court’s order and remand for further factual findings.

Briefs:

HUD Brief

Tribes Brief

HUD Reply