trust relationship

Blackfeet Housing Sues BIA over Failure to Maintain Storm Drains and Flood Damage

Matthew L.M. Fletcher

Here is the complaint in Blackfeet Housing v. United States (D. Mont.):

1 – Complaint

An excerpt:

9. During the winter of 2011, the Blackfeet Indian Reservation had significant snowfall. The streets in Browning were covered with snow, and huge snow banks were created from plowing. In June of 2011, Browning also had significant rainfall. Given the unusual amount of precipitation, Blackfeet Housing had many rental units with a significant amount of water in the basements. In order to address the magnitude of this problem, Blackfeet Housing sent an engineer to look at the homes and determine the reason for the flooded crawl spaces. He discovered that the storm drains were clogged, the water had nowhere to go, and as a result, the water was backing up into the homes. The water in some of the homes filled the entire crawl space. The result was significant damage to the structure of the unit.

10. Each year after the snow melt and spring storm, the neighborhood flooding will continue to increase in frequency, duration, and intensity until storm drain systems are cleaned and repaired.
11. The storm drain and catch basic cleaning and repair is now well beyond the scope of routine maintenance.

12. Repair of residence flood damages is well beyond the scope of routine Blackfeet Housing house maintenance.

GTB Sues over Indian Health Services Contract Support Costs

Matthew L.M. Fletcher

Here is the complaint in Grand Traverse Band of Ottawa and Chippewa Indians v. United States (D. D.C.):

1 Complaint

Quapaw Tribe Congressional Reference Case Survives Motion to Dismiss

Matthew L.M. Fletcher

Here are the materials in Quapaw Tribe v. United States (Fed. Cl.):

1 Congressional Reference

4 Complaint

7-1 US Motion to Dismiss

10 Response

11 Reply

16 DCT Order Denying Motion to Dismiss

Tenth Circuit Rules in Favoring of Trust Accounting Claims of Osage Headright Holders

Matthew L.M. Fletcher2 Comments

Here are the materials in Fletcher v. United States:

CA10 Opinion

Fletcher Opening Brief

Interior Answer Brief

Fletcher Reply Brief

An excerpt:

After settlers displaced the Osage Nation from its native lands, the federal government shunted the tribe onto the open prairie in Indian Territory, part of what later became the State of Oklahoma. At the time, the government had no idea those grasslands were to prove a great deal more fertile than they appeared. Only years later did the Osages’ mammoth reserves of oil and gas make themselves known. When that happened, the federal government appropriated for itself the role of trustee, overseeing the collection of royalty income and its distribution to tribal members. That role continues to this day. In  this lawsuit, tribal members seek an accounting to determine whether the federal  government has fulfilled the fiduciary obligations it chose to assume. The district court
dismissed the tribal members’ claims. We reverse.

Lower court materials here and here.

Federal Court Dismisses Challenge to Cheyenne River Sioux Equitable Compensation Act

Matthew L.M. Fletcher1 Comment

Here are the materials in LeBeau v. United States (D. S.D.):

1 Complaint

17 US Motion to Dismiss

20 Opposition

25 US Reply

32 DCT Order Dismissing Complaint

An excerpt:

Plaintiffs brought suit against the United States alleging claims for breach of trust obligations, breach of fiduciary duty, and accounting. The relief sought by plaintiffs is limited to declaratory and equitable relief. The United States moves to dismiss plaintiffs’ complaint in its entirety, arguing plaintiffs lack standing, among other things. Plaintiffs resist the motion. For the following reasons, the motion is granted, and plaintiffs’ claims are dismissed without prejudice.

 

Update in California Valley Miwok Tribe v. Salazar — Updated 9/27/13

Matthew L.M. Fletcher2 Comments

The court has issued an opinion in California Valley Miwok Tribe v. Salazar (D. D.C.):

DCT Order

From the order:

This matter is before the Court on Intervenor-Defendant’s motion to dismiss for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, Fed. R. Civ. P. 12(b)(6). See Motion to Dismiss Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief (“Mot.”), Dkt. No. 58, at 2 (Mar. 26, 2012). Intervenor-Defendant also argues that it is a required party but that its joinder is precluded by sovereign immunity, id. at 21; for clarity the Court will construe this argument as a motion to join a required party under Federal Rule of Civil Procedure 19(a)(2). Because the Court agrees that Intervenor-Defendant is a required party but not that its joinder is precluded by sovereign immunity, the motion to join a required party is GRANTED. Because the Court finds Intervenor-Defendant’s remaining arguments to be largely — but not entirely — without merit, the motion to dismiss is GRANTED in part and DENIED in part.

Materials are here.

Update — additional materials:

2013 09 20 Motion for Reconsideration

2013 09 20 Motion for Stay Pending Reconsideration

DCT Order Denying Stay

Gingold and Pearl: Tribute to Eloise Cobell

Matthew L.M. Fletcher

Dennis M. Gingold and M. Alexander Lowther (Pearl) have published “A Tribute to Eloise Cobell” in the Public Land & Resources Law Review.

The abstract:

Cobell v. Salazar, the landmark class-action case, and its settlement arise out of a painful period in American history. For more than a century, the government’s abuse of individual Indian trust beneficiaries has been documented in various government reports and has been debated in Congress, but nothing that Congress did or said stopped egregious breaches of trust committed by the executive branch. The United States Court of Appeals for the D.C. Circuit noted that “[t]he General Accounting Office, Interior Department Inspector General, and Office of Management and Budget, among others, have all condemned the mismanagement of the Individual Indian Money trust accounts over the past twenty years.” Indeed, the government exploited the Individual Indian Trust as if those funds were its own, wholly disregarding both its statutory and common law trust obligations and the needs and interests of hundreds of thousands of impoverished Indians.

No one did anything to stop that abuse until Elouise Cobell stood up and told the government, “no more.” This Article relates the actions in equity taken by Elouise Cobell to compel the United States to conduct a full historical accounting of all IIM Trust funds, to correct and restate IIM account balances, to fix broken Trust management systems, and to undertake other critical trust reform measures to ensure prudent Trust Management, and examines its remarkable achievements.

Ninth Circuit Holds Interior Does Not Violate ISDEAA When Denying Law Enforcement Funds to PL280 Tribes

Matthew L.M. Fletcher

Here is the opinion in Los Coyotes Band of Cahuilla & Capuño v. Jewell.

From the court’s syllabus:

The panel reversed the district court’s summary judgment in favor of the Los Coyotes Band of Cahuilla and Cupeño Indians, and the court’s finding that the U.S. Secretary of the Interior violated the Indian Self-Determination and Education Assistance Act, the Administrative Procedure Act, and the Fifth Amendment’s guarantee of equal protection  when the Secretary declined to enter into a self-determination contract with the Tribe to fund law enforcement on the Los Coyotes Reservation.

The panel held that the Secretary properly rejected the Tribe’s contract request. The panel also held that the Tribe’s reliance on the Indian Self Determination and Education Assistance Act was misplaced because the Act allows the Tribe to take control of existing programs and obtain funds that the Bureau of Indian Affairs (“BIA”) would otherwise spend on those programs, but here there was no existing BIA program, and therefore  nothing to transfer to the Tribe. The panel further held that the Administrative Procedure Act did not authorize the court to review the BIA’s allocation of law enforcement funding in Indian Country. Finally, the panel held that the BIA’s funding policy did not violate the Fifth Amendment’s equal protection guarantee.

And the briefs:

Interior Opening Brief

Los Coyotes brief

Interior Reply Brief

Lower court materials here.

Lynn & Whyte: “Indigenous Peoples, Climate Change and the Government-to-Government Relationship”

Matthew L.M. Fletcher

Kathy Lynn and Kyle Powys Whyte have posted “Indigenous Peoples, Climate Change and the Government-to-Government Relationship” on SSRN. Here is the abstract:

Climate change impacts present indigenous peoples with distinct challenges, from the loss of species needed for subsistence practices like fishing and plant gathering, to coastal erosion that may force some communities to migrate away from areas they have inhabited or used for many years. Students, activists, environmental managers, scholars and corporate and political leaders of all heritages should be aware of how indigenous peoples must address climate change impacts from global to community-level scales, and the obstacles they may encounter due to intersecting oppressions, like cultural imperialism and disempowerment. To create such awareness, there is a need for more work that describes the specific sites of interaction relevant to indigenous peoples and climate change. Sites of interaction are the local and regional places where indigenous peoples are in relationships with governments, non-governmental organizations (NGOs), networks and alliances. Better understanding the relationships that indigenous peoples have with these groups and institutions contributes to fostering unique and necessary indigenous approaches to address climate change that reflect their unique cultural connections to the earth. This paper focuses on one of the critical sites of interaction for indigenous peoples in the United States — the government-to-government relationship. While the government-to-government relation is not a new approach, this paper examines how it might operate in indigenous climate change adaptation contexts in the United States. We describe a set of examples of consultation and collaboration and offer seven recommendations that demonstrate the value of tribal responses to climate change.

Federal Court Rules against Intertribal NAHASDA Claims

Matthew L.M. Fletcher

Here are the updated materials in Lummi Tribe v. United States (Fed. Cl.):

44 Second Amended Complaint

45 US Motion to Dismiss

48 Lummi Response

50 US Reply

57 DCT Order Denying Motion to Dismiss

76 Lummi Motion for Partial Summary J

83 US Cross-Motion

88 Lummi Reply

95 DCT Order Granting US Motion

An excerpt:

This case arises under the Native American Housing Assistance and Self Determination Act of 1996 (“NAHASDA” or “the statute”), as amended, 25 U.S.C. §§ 4101–4212 (2006). Plaintiffs sue here to recover grant funds initially paid to them under the statute but later recaptured by the Department of Housing and Urban Development (“HUD” or “the agency”) when HUD determined that the allocation formula on which the grants had been based had been misapplied. This action is currently before the court on the parties cross-motions for partial summary judgment. By direction of the court, the parties have fully briefed only those arguments addressing the issue of whether 25 U.S.C. § 4152(b)(1), as originally enacted, prohibited HUD from excluding the housing units referenced in the statute from the allocation formula, rendering 24 C.F.R. § 1000.318’s removal of such units contrary to the statute and therefore invalid.

The court heard oral argument on July 30, 2013. For the reasons set forth below, plaintiffs’ motion for partial summary judgment as it relates to the alleged invalidity of 24 C.F.R. § 1000.318 is denied and defendant’s cross-motion is granted.

Prior post on this matter here.