Here is the opinion in January from the New Mexico Court of Appeals in Hoffman v. Sandia Resort and Casino (apparently the New Mexico Supreme Court denied review just recently). The claim involved a false jackpot, and the plaintiff had tribal remedies.
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SCOTUSBlog Picks Sharp v. United States as a Petition to Watch
Well, here we go again. This is one of those “gut reaction” cases where it seems like an innocent non-Indian property owner is being subjected to liability or some other taking because of “ancient” Indian tribal property right. In virtually all other areas of law, this would be a no-brainer “deny.” There’s no split, and there never will be — unless the United States starts bringing more and more trespass actions against non-Indians on behalf of tribes (and how likely is that to happen, exactly?). It may still be denied, as it should, but the “gut reaction” of several of the Justices, coupled with a distaste toward Indian rights, might be enough to make this certworthy. Also, maybe (who knows?) it matters that the opinion comes from Judge Fletcher (Betty this time). We’ll find out Monday.
Here are the materials (from SCOTUSblog):
Title: Sharp v. United States
Docket: 09-820
Issues: (1) Whether, as a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, the shore defense structure constitutes a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure; (2) whether an owner of upland property is strictly liable under Section 10 of the Rivers and Harbors Appropriation Act of 1899 for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States; and (3) whether the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” is sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington.
Lac du Flambeau Case: “Unique” or Widespread “Disarray”? — Another Turtle Talk Poll
Pechanga links to a WSJ article (available here: WSJ Disarray Article–thanks to Mike McBride) suggesting that the recent Wells Fargo v. Lake of the Torches case has thrown tribal lending into disarray.
Indianz links to the same article, but quotes an expert suggesting that the case is “unique.”
Which is it?
Ignore the typo…. 🙂
Colorado Court of Appeals Briefing in Ward Churchill Appeal
Many of the briefs have been filed in Churchill v. University of Colorado (Colo. App.). More are forthcoming:
National Lawyers Guild Amicus Brief
State of Colorado Amicus Brief–updated (3:05PM)
Extensive lower court materials are at the Race to the Bottom here (a more direct link to lower court documents is here).
Poaching Case to Reach Sault Tribe Tribal Court
From the Escanaba Daily Press vie Pechanga:
ESCANABA – Three members of the Sault Ste. Marie Tribe of Chippewa Indians, accused of illegal commercial fishing in Little Bay de Noc in 2009, will appear in tribal court this month, officials said.
Five tribal members and one Delta County man were arrested in early 2009 for allegedly illegally catching and selling walleye from Little Bay de Noc. The tribe has legal jurisdiction over the five tribal members, while Delta County has legal jurisdiction over the non-tribal member.
In March of this year, the tribe announced three of the accused tribal members were cited with approximately 100 civil infractions including illegally setting nets and selling thousands of pounds of walleye for profit.
The fish were allegedly being sold through a tribal commercial fishing operation consisting of two tribal members and a state-licensed wholesaler. Investigation continues regarding these three individuals who have not yet been officially charged.
According to Brenda Browning, a clerk at the tribal court in Sault Ste. Marie, the citations have been issued against the three tribal members accused of illegally poaching and selling walleye. Their pretrial hearings are scheduled in tribal court in mid-May. The court is not releasing their names because the case is in the pretrial phase, Browning explained Friday.
Browning also said these three cases are considered civil matters, which are being handled by Special Prosecutor Monica Lubiarz-Quigley.
When contacted Monday, Lubiarz-Quigley referred the Daily Press to the tribe’s general counselor, Thomas Dorwin. Dorwin did not return a call from the newspaper prior to press time.
The Daily Press also left a message with the tribe’s attorney, Aaron Schlehuber, on Monday.
NYTs: Obama to Nominate Elena Kagan for the Supreme Court
Our post on her Indian law record (lack thereof) is here. Challenges to her record as Harvard dean are here and the White House response is here.
From the NYTs:
WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.
After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.
In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.
That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.
Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.
Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.
In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of JusticeAnthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.
As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.
With all signs pointing to a Kagan nomination, critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.
M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.
Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”
ICT Article on Indian Child Welfare Act
From ICT:
SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law pertaining to American Indian and Alaska Native children that many tribal members are unaware of. Attorneys, judges, social workers and state court systems work with this act almost daily. The United States Congress enacted ICWA more than 30 years ago to protect the best interests of Indian children, and to promote the cohesiveness of Indian families and tribes. Because it is a federal law, it pre-empts state law in its application, meaning in a state court setting applying the standards of ICWA is mandatory.
For ICWA’s protections to apply, a child must be an enrolled member of an Indian tribe or be eligible for enrollment. The individual tribe to which the child belongs is responsible for determining membership eligibility.
ICWA applies to children who have parents whose rights are being terminated, or who have been taken out of their home and placed into a guardianship, foster care or any permanent or pre-adoptive placement.
State court systems and judges in states with very low Indian populations often misunderstand the law, such as Georgia.
Sault Ste. Marie Tribe of Chippewa Indians’ prosecuting attorney Eric Blubaugh, said, “Everyone gets in a sort of professional comfort zone, and state courts are no exception. A state court, when confronted with a case involving an Indian child, must apply different standards than they would in a case involving a non-Indian child. And the frontline professionals – caseworkers and attorneys – must assess an ICWA case’s merits much differently due to the higher standards of proof.”
Ninth Circuit Affirms Tribal Court Conviction
The case is Eagle v. Yerington Paiute Tribe, and involves an interesting question: whether tribal prosecutors have to prove Indian status beyond a reasonable doubt. The answer appears to be no.
[Appellant opening brief unavailable.]
Angelique EagleWoman on the Cobell Settlement
From ICT:
As a law professor who teaches civil procedure, I want to explain the due process problems with the United State government’s proposed settlement of the Cobell lawsuit. It was originally filed as a class action on behalf of Indian owners of trust lands seeking an accounting from the U.S. Under the federal rules of civil procedure, this type of lawsuit asking for an action – the accounting – is the type of class action where you are bound by the judgment. When a class action is filed requesting money damages as a remedy, due process kicks in at the highest levels and every person has the right to “opt-out” and file their own lawsuit. Everything has been twisted up in the Cobell Proposed Settlement.
| There is no incentive for Interior to use the fund if it can save the U.S. government money by simply not doing anything. |
The CPS has three levels of payments to individuals for this accounting action to total $1.4 billion. First, the four named plaintiffs are set to receive $15 million. Second, the historical class is tied up with the accounting claim and not allowed to opt-out and will only receive $1,000 for all of their claims dating back to the General Allotment Act of 1887. This violates the Federal Rules of Civil Procedure Rule 23(b) which mandates money damage class actions provide opt-out provisions. This turns the tables on the original filed lawsuit and binds those with the longest claims to a payment that cannot possibly represent what is owed to them or what should be the damages for mismanagement of their lands.
Third, the Trust Administration Class gets paid last, if there is money left from the $1.4 billion, with a bottom line payment of $500 and then a formula kicks in. This last group is considered a “money damages” group, and they can decide to opt-out and file their own claim. The historical class can be counted here for an additional $500 (totaling a whopping $1,500 for 120 years of mismanagement). The formula that may add to the $500 looks to the past balances of the Individual Indian Money account over 10 years and uses that as the amount to be compensated. So, if the U.S. government really mismanaged your account and put in zero dollars, then under the formula – you get $500 plus zero dollars.
My proposal would be to put all class members into the first group – yes, everyone should get $15 million just like the four named plaintiffs if we are going to be fair about this. Secondly, the U.S. government admits no wrongdoing whatsoever in this proposed settlement. Several times the secretary of the Interior has been held in contempt by the federal district court and yet, the settlement does not acknowledge any wrongdoing on the part of the U.S. government. There isn’t one word of apology. As originally filed, the complaint estimated more than $48 billion was owed to the entire plaintiff class. The first part of the settlement amounts to a measly $1.4 billion with the majority going to the four named plaintiffs and their attorneys.
| At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. |
Part two of the settlement contains a $2 billion fund administered by the Department of the Interior to purchase from individual Indians’ their fractionated land interests and transfer them to the tribal government. Under the proposed settlement, Interior has 10 years to use up the fund or it reverts back to the U.S. Treasury. Yes, you read that right – there is no incentive for Interior to use the fund if it can save the U.S. government money by simply not doing anything.
Cobell Settlement May Be Scuttled by Lower Attorney Fee Amendment
From Law.com:
Congressional approval of one of the largest class action settlements in U.S. history is getting hung up on the issue of legal fees for plaintiffs lawyers.
The $3.4 billion Indian trusts settlement agreed to in December could be scuttled if Congress doesn’t approve the terms of the agreement by May 28, according to The Associated Press.
The tentative settlement would close the books on a class action filed in 1996 on behalf of 300,000 American Indians. The plaintiffs in the suit claimed that as trustee for 145 million acres of land under theDawes Act of 1887, the U.S. Department of the Interior mismanaged trust accounts and allowed the federal government to give the best land to white settlers. The settlement calls for plaintiffs to be paid $1.4 billion — about $1,500 per class member- — and for a $2 billion fund to be set up to buy American Indian land.
The potential snag now, as reported by sibling publication The Blog of Legal Times, is a move by Sen. John Barrasso of Wyoming to cap attorney fees in the case at $50 million. That has one of the plaintiffs lawyers who spent years litigating the matter crying foul.
Dennis Gingold — a solo practitioner in Washington, D.C., who serves as lead counsel to the plaintiffs — told the AP that he will terminate the settlement and resume litigation unless Congress approves the agreement without altering any of its terms. Gingold told The BLT that Barrasso’s sentiments fly in the face of a previous fee cap of $100 million agreed to in December, which would give Gingold and his co-counsel at Kilpatrick Stockton fees totaling between $50 million and $100 million.
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