Here is today’s order list.
The petitions are here.
Supreme Court Denies Wolfchild/Zephier Cert Petitions
Here is today’s order list.
The petitions are here.
Court of Federal Claims
Federal Circuit Briefs in Council for Tribal Employment Rights v. United States
Opening Eighth Circuit Brief in Two Shields v. Wilkinson
Here:
opening brief of plaintiffs-appellants
addendum to brief of plaintiffs-appellants
The MSU ILPC filed an amicus brief in this matter as well:
Lower court order here:
108 Order Granting Motion to Dismiss
Here are the opening lines of the appellants’ brief:
Appellees engineered and executed a scheme to swindle hundreds of millions of dollars in oil-and-gas lease revenue from Appellants Ramona Two Shields and Mary Louise Defender Wilson and the class of Native Americans they propose to represent. Yet the District Court concluded that Appellants could not, as a matter of law, pursue their North Dakota common-law claims against Appellees simply because Appellees involved the United States in their swindle. Based on that fact alone, the District Court found that Federal Rule of Civil Procedure 19 required dismissal of Appellants’ entire case.
There is a parallel suit against the United States in the CFC.
Two Amicus Briefs Supporting Wolfchild Cert Petition
Zephier v. United States & Wolfchild v. United States Cert Petitions
Here:
Wolfchild questions presented:
1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.
2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.
3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.
Zephier questions presented:
I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?
II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?
III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”
IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?
Lower court materials here.
New Scholarship Supporting Reform of 25 U.S.C. § 1500
Emily S. Bremer & Jonathan R. Siegel have published Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500, in the Alabama Law Review.
An excerpt:
Plaintiffs suing the United States face a little-known obstacle to justice: 28 U.S.C. § 1500. This statute prohibits the United States Court of Federal Claims from exercising jurisdiction over a claim if the plaintiff has the same claim pending in another court. This apparently sensible rule causes considerable trouble because a “claim” is understood to include all claims based on the same operative facts, and Congress has required that certain types of claims against the United States must go to different courts. Therefore, a plaintiff with multiple claims against the United States may neither be able to bring the claims together in one case nor split them into separate cases. Section 1500 may effectively compel such a plaintiff to pursue only one claim and abandon the others. This unjust result is contrary to fundamental principles of modern civil procedure, which allow a plaintiff to pursue multiple claims against a defendant. Worse, it serves no good purpose. This Article argues that Congress should repeal § 1500 to provide justice to plaintiffs with multiple claims against the United States.
This article is based on a report they co-authored for the United States Administrative Conference.
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 Circuit Decides Wolfchild v. United States Appeal
Here are the materials:
33 United States Appellant Brief
90 Coursolle Descendants Answer Brief
122 Lower Sioux Community, Prairie Island, and Shakopee Amicus Brief
An excerpt:
The United States currently holds certain tracts of land in Minnesota in trust for three Indian communities. It originally acquired some of that land in the late 1800s, using funds appropriated by Congress to help support a statutorily identified group of Indians, and held it for the benefit of those Indians and their descendants for decades. As time passed, that beneficiary group and the three present-day communities that grew on these lands overlapped but diverged: many of the beneficiary group were part of the communities, but many were not; and the communities included many outside the beneficiary group. In 1980, Congress addressed the resulting land use problems by putting the lands into trust for the three communities that had long occupied them. Ever since, proceeds earned from the lands—including profits from gaming—have gone to the same three communities.
The discrepancy between the makeup of the three communities and the collection of descendants of the Indians designated in the original appropriations acts underlies the present dispute, which was before this court once before. Claimants allege that they belong to the latter group and that they, rather than the communities, hold rights to the land at issue and any money generated from it. Four years ago, based on an extensive analysis of the relevant laws and history, we rejected what was then the only live claim, which got to the heart of their assertion: that the appropriations acts created a trust for the benefit of the statutorily designated Indians and their descendants. Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009). On remand, claimants advanced several new claims, some of which seek proceeds generated from the lands, others of which seek more. Again unable to
find that claimants have stated a claim that meets the standards of governing law, we now reject these new claims, including the one that the Court of Federal Claims held valid in the judgment we review.
Lower court materials here.
Federal Court Dismisses Billion Dollar Shinnecock Land Claims Suit
Here are the materials in Shinnecock Indian Nation v. United States (Fed. Cl.):
Shinnecock Indian Nation v. United States, No. 12-836, Slip Op. (Fed. Cl. Aug. 29, 2013)
Complaint here.
Federal Court Rules against Intertribal NAHASDA Claims
Here are the updated materials in Lummi Tribe v. United States (Fed. Cl.):
57 DCT Order Denying Motion to Dismiss
76 Lummi Motion for Partial Summary J
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.
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