trust relationship – Page 23

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

The Nation: “How America Is Failing Native American Students”

July 25, 2017Matthew L.M. Fletcher

Here.

Also here, from Investigate West.

Ninth Circuit Briefs in Gila River Indian Community v. Dept. of Veterans Affairs

July 14, 2017August 15, 2018Matthew L.M. Fletcher

Here:

Doc 10 – Opening Brief

Doc 11 – Excerpts of Records

Answer Brief

Reply Brief

IBIA Orders Nooksack to Show Cause in Second IHS Reassumption Appeal

July 13, 2017Matthew L.M. Fletcher

Here are the materials in Nooksack Indian Tribe v. Director, Portland Area, Indian Health Service:

6-26-17 Nooksack v. IHS (IBIA) Notice of Appeal

7-5-17 Nooksack v. IHS (IBIA) Notice of Receipt of Appeal, Order to Show Cause, and Order Concerning Service

6-26-17 Nooksack v. IHS (IBIA) Declaration of Charity Bernard

6-26-17 Nooksack v. IHS (IBIA) Declaration of Joseph Mace

Tribal Comments on Bears Ears Monument

July 12, 2017July 12, 2017Matthew L.M. Fletcher

Here:

2017 07 10 Updated FR Monument Review – FINAL

Tribal Suit against Interior over Yellowstone Grizzly Delisting

July 7, 2017July 7, 2017Matthew L.M. Fletcher

Here is the complaint in Crow Creek Sioux Tribe v. Dept. of Interior (D. Mont.):

Complaint and Civil Cover Sheet Doc 1

Federal Court Affirms Some 638 Contract Denials re: Northern Arapaho Tribe, Remands Others

June 26, 2017June 26, 2017Matthew L.M. Fletcher

Here are the materials in Northern Arapaho Tribe v. Lacounte (D. Mont.):

131 NAT Motion for Summary Judgment

An excerpt:

The Court affirms the BIA’s declinations of NAT’s second and third judicial services proposals, wildlife resources management proposal, and water resources management proposal. The Court reverses the BIA’s declination of NAT’s youth court proposal, to the extent that the declination improperly relied upon post-hoc justifications, and NAT’s first judicial services proposal. We remand these proposals to the BIA for reconsideration.

Prior posts here.

Yawwinma Nez Perce Rapid River Traditional Cultural Property

June 14, 2017June 15, 2017Matthew L.M. Fletcher

From Dan Rey-Bear:

This historic and ongoing tribal fishing ground near Riggins, Idaho was just listed on the National Register of Historic Places, https://www.gpo.gov/fdsys/pkg/FR-2017-06-07/pdf/2017-11737.pdf. For background, see the draft nomination form.

From page 42 of the draft nomination:

“For some Nez Perce, Rapid River is the only place they get to fish.” Of course, tribal members continue to fish the Clearwater, the Columbia, the Lochsa, the Selway, the Imnaha, the Grand Ronde, the Snake, and their tributaries, but the proximity of Yáwwinma, the relatively small size of the river, and the comparatively large number of returning of hatchery fish each year make Rapid River arguably the most important salmon stream for noncommercial Nez Perce fishermen and their families who depend on it as a ceremonial and subsistence fishery. The river and the grounds of Rapid River House [one of the two lots included in the listing] now literally belong to the Nez Perce Tribe, but traditional Nez Perce people would say just the opposite: we belong to Yáwwinma.

Also, the other listed lot owned by the Tribe is called “Barter Town”. Per pages 43-44, “According to Nez Perce fishermen, this contemporary place name also makes a direct allusion to the place of the same name in the 1985 postapocalyptic film Mad Max Beyond the Thunder Dome starring Mel Gibson and Tina Turner. In addition to being a descriptive name, Barter Town is also a prime example of Nez Perce humor and the dynamic vitality of the Nez Perce oral tradition.”