Bakken Shale Allotment Owners’ Class Action against US for Trust Breach Dismissed

Here are the materials in Two Shields v. United States (Fed. Cl.):

1 Complaint

6-1 US Motion for Summary J

11 Two Shields Opposition

12 Two Shields Motion for Discovery

14 US Reply in Support of Motion for Summary J

15 US Opposition to Motion for Discovery

16 Two Shields Reply in Support of Motion for Discovery

17 US Request for Judicial Notice

17-1 Cobell Fairness Hearing Transcript

18 Two Shields Response to Request for Judicial Notice

19 US Reply in Support of Request for Judicial Notice

20-1 Two Shields Surreply in Opposition to Request for Judicial Notice

25 DCT Order

An excerpt:

This case is one of the myriad of breach of trust claims brought by Native Americans against various federal agencies.1 Paradoxically, the parties present very little in common. Like the proverbial two ships passing in the night,2 plaintiffs and defendant here present the court with two competing narratives that raise entirely different legal issues.

Plaintiffs Ramona Two Shields and Mary Louise Defender Wilson claim that the Bureau of Indian Affairs (“BIA”) breached its fiduciary duty to prudently manage their mineral rights, which are held in trust by the United States. Plaintiffs include a detailed narration of the depredations experienced by their tribes, and characterize the BIA’s alleged breach as “the latest chapter of United States mismanagement or outright abuse regarding the members of the Three Affiliated Tribes.” Compl. ¶ 24. Plaintiffs seek damages on behalf of themselves and their purported class.

Defendant presents an entirely different story. Defendant does not dispute plaintiffs’ characterization of the BIA’s actions; in fact, defendant barely mentions them at all. Rather, defendant argues that the BIA’s alleged misdeeds are immaterial because plaintiffs’ claims have already been litigated and settled. Specifically, defendant argues that plaintiffs’ claims were subsumed by the Cobell class action suit against the United States Department of the Interior (“DOI”), and that plaintiffs’ claims have already been settled pursuant to the $3.4 billion settlement (“Settlement Agreement”) that brought the Cobell suit to a close in 2011, after more than a decade of litigation. According to defendant, plaintiffs forfeited any right to pursue their claims by failing to opt out of the class action Settlement Agreement. Plaintiffs, in contrast, hardly mention Cobell at all in their complaint, and argue in their opposition brief that their claims are entirely unrelated to the Cobell litigation. It is the role of the court to determine which of these two narratives prevails.

This litigation has given rise to a myriad of claims and motions.  Before the court are defendant’s motion for summary judgment as to plaintiffs’ breach of fiduciary claim (Count I), defendant’s motion to dismiss for lack of subject matter jurisdiction plaintiffs’ alternate breach of fiduciary duty claim (Count II), and defendant’s motion to dismiss for failure to state a claim plaintiffs’ legislative takings claim (Count III). Also before the court are plaintiffs’ motion for discovery, defendant’s motion for judicial notice and plaintiffs’ motion for a sur-reply concerning defendant’s motion for judicial notice.

For the following reasons, as fully explained below, the court shall grant defendant’s motion for summary judgment regarding Count I, as well as defendant’s motion to dismiss Counts II and III. Furthermore, the court will deny plaintiffs’ motion for discovery, yet will grant their motion for sur-reply. Finally, defendant’s motion for judicial notice will be granted-in-part.

Another Fight over Attorneys Fees in Cobell Settlement

Here are the materials in Boyd v. Kilpatrick Townsend & Stockton (D. D.C.):

1-1 D.C. Court Complaint

7 Gingold Motion to Dismiss

11 Kilpatrick Townsend Motion to Dismiss

13 Boyd Motion to Remand

21 Boyd Opposition to Gingold Motion

22 Boyd Opposition to Kilpatrick Motion

25 Gingold Opposition to Motion for Remand

26 Kilpatrick Reply

27 Kilpatrick Opposition to Motion for Remand

28 Gingold Reply

30 Boyd Reply to Gingold Opposition

31 Boyd Reply to Kilpatrick Opposition

32 DCT Order Remanding Case to D.C. Court

An excerpt:

Plaintiff Boyd, president of the National Black Farmers Association, fought for more than two decades to remedy discrimination against minority farmers. See Compl. ¶¶ 1, 10 [Dkt. #1], The facts of this particular case stem from his lobbying efforts on behalf of Native American class members in their discrimination suit against the federal government, Cobell v. Salazar, Civil Action No. 1:96-cv-01285-TFH (D.D.C. Dec. 7, 2009) (“Cobell“). See Compl. ¶ 25. The class members in Cobell were represented by, among others, defendants Gingold and Kilpatrick. Compl. ¶¶ 12-14. In March 2010, plaintiff was asked by John Loving, a government relationship advisor at defendant Kilpatrick, to lobby in support of legislative funding for the Cobell settlement. Compl. ¶¶ 25-26. Plaintiff agreed and continued his lobbying efforts. See Compl. ¶ 31. Later that same month, the House of Representatives passed the Claims Resolution Act of 2010 (“CRA”), an appropriations bill that, if enacted, would provide settlement funds for Cobell class members. Compl. ¶ 30. In June 2010, plaintiff informed defendant Gingold “that he expected to be paid for his efforts to secure funding.” Compl. [3]  ¶ 43. Defendant Gingold promised that “Mr. Boyd would be compensated,” but did not specify “how much and when” plaintiff would be paid. Compl. ¶ 43. The CRA became law in December 2010. Compl. ¶ 4.

On May 6, 2014, plaintiff, a Virginia resident, filed suit against defendants in the D.C. Superior Court alleging unjust enrichment, breach of implied-in-fact contract, and quantum meruit. See generally Compl. On May 27, 2014, defendant Gingold, a Maryland resident, removed the action to this Court, claiming that defendant Kilpatrick, a Virginia resident, had been fraudulently joined to destroy diversity jurisdiction. See generally Notice of Removal [Dkt. #1]

Who Won American Indian Law and Policy, 2014, Second Round, Bracket 4 of 4

Now we move onto the Category 4 hurricane, groups.

#1 1491s v. #9 Cobell settlement beneficiaries

The 1491s love Jim Thorpe (I think) but not his captor, winning with 93 percent of the vote. Potheads didn’t get out of bed yesterday, so the Cobell settlement beneficiaries had an easy time garnering 73 percent of the vote.

I guess I forget, being in Michigan, that Cobell’s billions are pretty influential. This will be an interesting match-up. The 1491s better hope the beneficiaries aren’t out there buying votes.

#4 Gray wolves v. #5 Cohen Handbook

Ma’iingan feasted on the Senate Committee on Indian Affairs, with 63 percent of the vote. The entire state of New Mexico was no match for the Cohen Handbook leviathan, barely netting 29 percent of the vote.

Are the law profs hunters? Or will the wolves outthink them? Whozit gonna be?

#2 Tribal Supreme Court v.#10 Tribal In-House Counsel Association

TLPI nearly pulls off the largest upset of the tournament by defeating the Supreme Court Project but fades late, garnering only 44 percent of the vote. The young upstart TICA wins over NABA by one vote!

#3 Law Reviews on Adoptive Couple v.#6 Carcieri challengers

Well, sheer numbers mean something, plus an extra year to deliberate. Adoptive Couple defeats Bay Mills with 62 percent of the vote. Controversy reigns in the Carcieri v. payday lending crowd, but Carcieri must scare (or excite) voters more, winning with 59 percent of the vote.



Who Won Indian Law and Policy 2014? First Round Bracket — 7 of 8

Now we move to Category 4, which is another miscellaneous category of sorts. Thanks for bearing with me through this.

Category 4 — Groups

# 1 1491s

Funny people. Appeared on The Daily Show and had a fine time with some Redskins fans. Went to football game, too.

Also, appeared at Michigan State! Had lunch.


# 16 Borough of Jim Thorpe

Won NAGPRA case in the Third Circuit. Don’t be fooled. They’re not NAGPRA fans.

# 8 Indian country pot growers

Don’t get too excited. They haven’t won anything yet.


# 9 Cobell settlement beneficiaries

Feds are looking for you. Seriously, this time they want to give you money.

# 4 Gray wolves

Brother ma’iingan won one this year. I called it. Not really.


# 13 Dept. of Justice

Wait, we already covered this under Eric Holder.

The real # 13 Senate Committee on Indian Affairs

Always doing stuff.

# 5 Cohen Handbook

Going strong after all these years, maybe more than ever. Cited 27 times by federal and state courts in 2014. Holy moly!


# 12 New Mexico state government

Won several important Indian law cases this year: got the Part 291 procedures invalidated, against Grand River Enterprises, got a criminal conviction affirmed where the non-Indian had originally been arrested by tribal, bunch of other stuff probably.

Federal Court Denies Motion to Recover Cobell Litigation Expenses

Here are the materials:

3839 Motion for Expenses

3846 Federal Opposition

3848 Cobell Reply

4033 DCT Order Denying Motion

An excerpt:

Pending before the Court is Plaintiffs’ Motion for Reconsideration of Class Representatives’ Expense Application [ECF No. 3839]. The motion seeks to have this Court reconsider its June 20, 2011 decision declining to further diminish the common fund benefitting class plaintiffs by granting the Class Representatives’ request to recover expenses related to recoverable grants third-party organizations made to the Blackfeet Reservation Development Fund (“BRDF”) to finance this lawsuit. Because the pending motion advances arguments and evidence that could have been raised by the plaintiffs before the Court ruled and entered judgment, the motion will be denied.