Here is the opposition to the government’s motion to dismiss in Flute v. United States (D. Colo.):
trust relationship
Gregory Sisk on Strict Construction of Federal Waivers of Sovereign Immunity
Gregory C. Sisk has posted “Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity,” forthcoming in the North Carolina Law Review, on SSRN. An important read for tribal advocates.
Here is the abstract:
The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.
Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.
In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).
Seventh Circuit Holds Oneida Owes No Stormwater Fees to Village of Hobart
Here are the materials in Oneida Tribe of Indians of Wisconsin v. Village of Hobart:
An excerpt from Judge Posner’s opinion:
Nevertheless we can imagine an argument, built on our earlier example of the Village’s authority to deploy its firefighters on Indian parcels, for an exception of necessity—a common law graft onto the Clean Water Act—to the Oneida tribe’s exclusive authority over Indian land. But the Village doesn’t argue for such an exception; it doesn’t deny the feasibility of cooperative arrangements between it and the tribe, which has signed cooperative service agreements with other government bodies in the area.
So Hobart loses its case against the tribe. And there is another reason it must lose. Because federal law forbids states and local authorities to tax Indian lands, the tribe can’t be forced to pay the assessment decreed by the challenged ordinance if the assessment is a tax.
Lower court materials here.
Riverside-San Bernardino County Indian Health, Inc. v. Sebelius Complaint
Riverside-San Bernardino County Indian Health, Inc.v. Sebelius complaint (D. D.C.):
D.C. Circuit Briefing in Menominee Tribe v. United States (IHS)
Quantum Entertainment Ltd. v. Dept. of Interior Cert Petition — “Old” Section 81 Appeal
Here:
Quantum Entertainment Cert Petition
Question presented:
Whether the court of appeals erred in holding that Landgraf v. USI Film Products, 511 U.S. 244 (1994), implicitly overruled McNair v. Knott, 302 U.S. 369 (1937), and Ewell v. Daggs, 108 U.S. 143 (1883), by requiring the conclusion that a statute eliminating legal impediments to the enforcement of contracts has an impermissible “retroactive effect” when applied to a contract that was entered into before the statute’s enactment but performed without complaint until afterwards.
Lower court materials here.
D.C. Circuit Briefs in Jicarilla Royalty Dispute with Interior and Merit Energy
Here are the briefs in Jicarilla Apache Nation v. Dept. of Interior:
Lower court materials here.
Two More Tribal Complaints against IHS over Contract Support Costs
Federal Court Dismisses Hopi Suit for US Trust Breach over Arsenic Levels in Water
Here are the materials in Hopi Tribe v. United States (Fed. Cl.):
18 DCT Order Dismissing Complaint
An excerpt:
Plaintiff, an Indian tribe, brought this suit to recover damages for breach of trust. The alleged breach consists of defendant’s supposed failure to ensure that the water supply on plaintiff’s reservation contains safe levels of arsenic. Before the court is defendant’s motion to dismiss for lack of subject-matter jurisdiction, in which defendant asserts that plaintiff has failed to identify an applicable fiduciary duty. The central legal question in this case, therefore, concerns the precise scope of the federal government’s duties as trustee with respect to Indian trusts. See generally United States v. Mitchell (Mitchell I), 445 U.S. 535 (1980). The answer to this inquiry has a long and sometimes acerbic pedigree. But there are some constants.
To be sure, the very notion of a tribal trust relationship is intertwined with the sovereignty of the United States: “Throughout the history of the Indian trust relationship, we have recognized that the organization and management of the trust is a sovereign function subject to the plenary authority of Congress.” United States v. Jicarilla Apache Nation, 131 S.Ct. 2313, 2323 (2011) (citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 169, n.18 (1982); United States v. Wheeler, 435 U.S. 313, 319 (1978); Winton v. Amos, 255 U.S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U.S. 553, 565–66 (1903); Cherokee Nation v. Hitchcock, 187 U.S. 294, 308 (1902); United States v. Cadelaria, 271 U.S. 432, 439 (1926); and Tiger v. Western Investment Co., 221 U.S. 286, 315 (1911)). As will become clear, in this case, plaintiff has failed to show that Congress has defined the federal government’s trust duties in such a way as to authorize plaintiff’s suit for damages in this court. Accordingly, the court must grant defendant’s motion to dismiss.
Federal Court Dismisses Challenge to Indian Preference in Employment at Office of Special Trustee
Here are the materials in Hester v. Salazar (D. Utah):
An excerpt from the R&R:
Because the Supreme Court has ruled in Mancari that Indian preference “does not constitute ‘racial discrimination,’ “ Mancari, 471 U.S. at 553, Mr. Hester’s claims that he was subjected to racial discrimination and that his civil rights have been violated are not valid. Therefore, because Mr. Hester has not stated a claim upon which relief can be granted, and it would be futile to amend his complaint, his complaint should be dismissed under the authority of 28 U.S.C. § 1915(e)(2)(B)(ii). Based on that conclusion, Mr. Hester’s motion to appoint counsel and motion for service of process should be deemed moot.
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