From BLT.
From CBS.
trust relationship
D.C. Circuit Affirms Cobell Settlement
Briefs are here.
An excerpt:
This is an appeal from the approval of a class action settlement agreement related to the Secretary of the Interior’s breach of duty to account for funds held in trust for individual Native Americans. Class member Kimberly Craven challenges the fairness of the settlement, contending principally that an impermissible intra-class conflict permeates the scheme to compensate class members for surrendering their established right to injunctive relief and that this conflict undermines the commonality, cohesiveness, and fairness required by Federal Rule of Civil Procedure 23 and due process. The record, however, fails to confirm either the existence of the purported intra-class conflict or a violation of due process. Rather, the record confirms that the two plaintiff classes possess the necessary commonality and adequate representation to warrant certification, and that the district court, therefore, did not abuse its discretion in certifying the two plaintiff classes in the settlement or in approving the terms of the settlement as fair, reasonable, and adequate pursuant to Rule 23(e). Accordingly, we affirm the judgment approving the class settlement agreement.
Prepared Witness Testimony in SCIA Oversight Hearing on the Trust Responsibility
Here:
Panel # 1
Ms. Melody McCoy
Staff Attorney
Native American Rights Fund, Boulder, CO
Mr. Matthew L. M. Fletcher
Professor of Law and Director of the Indigenous Law and Policy Center
Michigan State University College of Law, East Lansing, MI
Mr. Daniel Rey-Bear
Partner
Nordhaus Law Firm, LLP, Albuquerque, NM
Panel # 2
Mr. Ray Halbritter
Nation Representative
Oneida Indian Nation, Verona, NY
The Honorable Fawn Sharp
President
Quinault Indian Nation, Taholah, WA
The Honorable Brooklyn D. Baptiste
Vice-Chairman
Nez Perce Tribe, Lapwai, ID
I don’t see Jicarilla’s testimony here.
Webcast of Today’s SCIA Hearing on Fulfilling the Trust Responsibility
HEARTH Act Update
The HEARTH Act passed the House 400 to zero on May 15. Here is NCAI’s description:
The HEARTH Act (H.R. 205 and S. 703) has been favorably considered in committee in both the Senate and the House, and we urge the Administration to work with Congress to pass the legislation as soon as possible. The HEARTH Act promotes tribal self-determination in the management of tribal lands and would allow tribes to lease their own lands without the delay and bureaucracy of approval within the BIA. The legislation is also optional; each tribe would decide for itself whether or not to take advantage of the Act. Many tribes desire to manage their own lands and to promote economic development, and they are in the best position to decide for themselves whether this Act suits their needs. The Act expands the Navajo Leasing Act of 2000 (P.L. 106-568) to all federally recognized tribes.
New Scholarship by Tom Fredericks and Andrea Aseff Arguing BLM Should Not Have Jurisdiction over Indian Lands
Tom Fredericks and Andrea Aseff have published “When Did Congress Deem Indian Lands Public Lands?: The Problem of BLM Exercising Oil ad Gas Regulatory Jurisdiction in Indian Country” in the Energy Law Journal.
From the synopsis:
While the BLM has been asserting regulatory jurisdiction over oil and gas development on Indian lands for approximately twenty years, it should not be. Congress charged the BLM with regulating oil and gas and other activities on public lands, specifically for multiple use and sustained yield in accordance with land use plans the agency develops. Indian lands are not public lands. This article seeks to address whether Congress charged the BLM with regulating oil and gas development on Indian lands. After an exhaustive legal analysis, the authors found that the BLM likely lacks statutory authority to regulate oil and gas on Indian lands. This is significant because the BLM’s congressional mandate and implementing regulations to manage public lands contain restrictive management standards and requirements that Congress did not intend to apply to Indian lands, while adding another layer of regulatory requirements to an already complicated and extensive regime.
Audio of Salazar v. Ramah Available
Lyle Dennison (SCOTUSblog) Commentary on Ramah Argument
Here.
An excerpt:
No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services. But, on the other hand, it said every year that the government could not pay for everything it got in return. On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)
Initial Commentary on Ramah Oral Argument
A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.
Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.
This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.
On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.
Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.
The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).
I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.
SCOTUSBlog (Lyle Dennison) Preview of Salazar v. Ramah
Here.
An excerpt:
Going into the oral argument, the tribes may well have at least a small advantage in that their argument amounts to three simple propositions: what is at stake is a matter of simple fairness in living up to one’s promises, the government’s ineptness in managing its money deserves no sympathy, and both antique and recent precedent clearly control the outcome. That may stack up well against the government’s rather complex effort to draw a clear distinction between the Cherokee Nation precedent and this new case, its fairly dismissive treatment of the Judgment Fund as a source of funds for the tribes’ claims, and its studied effort to treat the old 1892 precedent in the Ferris case as a matter deserving of little notice and not much argument.
The Court is often seen as quite sympathetic to the plight of Indian tribes, and that can add an emotional factor to any case involving tribal rights. But here, the tribes’ usual, quite zealous protectors — the Interior Department and its Bureau of Indian Affairs — are on the other side, and they are making an argument that their overall obligations to care for the tribes’ interests should not be sacrificed to a legal duty to pay for administrative costs, especially in the face of Congress’s continuing skepticism about those costs.
If the Court is drawn mainly to the constitutional issue that the government has sought to make so prominent, that could work to the government’s considerable advantage. Congress since 1994 has left no doubt that it intended to curb what the Interior Department could spend on a very specific item, and that is difficult to argue around. If the Court is sensitive to separation of powers concerns in this case, and it presumably is always sensitive to that core constitutional concept, it may not want to be seen as second-guessing the lawmakers’ primacy in overseeing the federal Treasury. In this respect, the tribes’ effort to play down the significance of the language used to impose spending caps appeared to be a bit strained.
The tribes’ reliance on the Cherokee Nation precedent has some surface appeal, but, on closer examination, it does not seem to be as clear cut as the tribes would prefer. The lower courts have not been of one mind on its impact, and that no doubt will be noticed by the Justices.
Turtle Talk 
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