D.C. Circuit

Has the St. Croix/Bad River Challenge to BIA’s Off-Rez Gaming Regs Been Mooted?

Matthew L.M. Fletcher

From Indianz:

The Ho-Chunk Nation today announced the purchase of land in Beloit, Wisconsin, where two other tribes have sought to build an off-reservation casino.

In a press release, Vice-President Daniel Brown said tribe said it hopes to pursue economic development opportunities in Beloit. “We are looking forward to the chance to talk with local leaders about potential opportunities to bring jobs, economic development, and further investments to the Beloit area,” he said.

The St. Croix Chippewa Tribe and the Bad River Band of Lake Superior Chippewa Indianswant to build a casino on the site in Beloit. The Bush administration rejected the project in January of this year, and the issue will be heard by the D.C. Circuit Court of Appealsnext week, on November 3.

In the press release, Brown said the Ho-Chunk Nation “remains the only tribal nation with a real opportunity to site a casino” in Beloit. The tribe’s Class III compact allows another gaming site in the state, he said, and the tribe has “federally-recognized aboriginal ties” to Beloit and the region.

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Briefing in St. Croix Chippewa v. Salazar Off-Reservation Gaming Case Complete

Matthew L.M. Fletcher

Here are the briefs before the D.C. Circuit:

St. Croix Appellant Brief

Interior Appellee Brief

St Croix Reply Brief

Lower court materials are here.

D.C. Circuit Requires Interior to Make Accounting & Vacates Trial Court Order

Matthew L.M. Fletcher

The D.C. Circuit vacated and remanded back to Judge Robertson the Cobell litigation (opinion here). A key excerpt:

We now hold that the district court correctly held that the
1994 Act and Cobell VI required a full accounting, but erred in
holding that an accounting cannot be conducted because, in the
district court’s view, Congress will never appropriate the funds
necessary to conduct such an accounting. The statute gives the
plaintiff class a right to an accounting. Sitting in equity, the
district court has the authority to approve a plan that efficiently
uses limited government resources to achieve that goal. It is
within the power of the district court to order an accounting
without requiring Interior to perform analyses the costs of which
exceed the benefits payable to individual American Indians. It
would indeed be “nuts” to spend billions to recover millions.
Cobell XX, 532 F. Supp. 2d at 86. A court sitting in equity may
avoid reaching that absurdity.

We now hold that the district court correctly held that the 1994 Act and Cobell VI required a full accounting, but erred in holding that an accounting cannot be conducted because, in the district court’s view, Congress will never appropriate the funds necessary to conduct such an accounting. The statute gives the plaintiff class a right to an accounting. Sitting in equity, the district court has the authority to approve a plan that efficiently uses limited government resources to achieve that goal. It is within the power of the district court to order an accounting without requiring Interior to perform analyses the costs of which exceed the benefits payable to individual American Indians. It would indeed be “nuts” to spend billions to recover millions. Cobell XX, 532 F. Supp. 2d at 86. A court sitting in equity may avoid reaching that absurdity.

More:

When we vacated the district court’s injunction for abuse of discretion, we noted in particular that the injunction “caused the cost . . . to rise by more than an order of magnitude, from $335 million over five years to more than $10 billion.” Id. at 1077. We then specifically approved the use of statistical sampling on the rationale that for some transactions, “the average cost of accounting, per transaction, would exceed the average value of the transactions.” Id. at 1078. We now take that reasoning a step further, and instruct the district court to use its equitable power to enforce the best accounting that Interior can provide, with the resources it receives, or expects to receive, from Congress. Therefore we vacate the district court’s orders and remand for proceedings consistent with this opinion.

D.C. Circuit Rules Against Oglala Sioux Tribe in Dispute with Army Corps

Matthew L.M. Fletcher1 Comment

Here is the D.C. Circuit’s opinion, with one partial dissent (by Judge Tatel), in Oglala Sioux Tribe v. United States Army Corps of Engineers. Here are the briefs:

OST Brief

Army Corps Brief

Yahoo: Redskins Need a New Nickname

Matthew L.M. Fletcher1 Comment

An incredibly rare sportswriter, Michael Silver, who objects to the Redskins (thanks to Bob). From Yahoo:

Last Friday, in a judicial decision that hinged on a legal technicality, the U.S. Court of Appeals in Washington, D.C., upheld the right of the local pro football team to keep its unconscionable nickname.

Gloated team attorney Bob Raskopf, “It’s a great day for the Redskins and their fans and their owner, Dan Snyder.”

Alas, it was another shameful day for America.

Photo Redskins helmet.

(Stephen J. Boitano/AP Photo)

In clinging to the most racially offensive moniker held by a major U.S. professional sports team since the Emancipation Proclamation – yes, I know, since forever – the franchise continues to offend some Native Americans and assault the sensibilities of a citizenry that should be long past such insensitive and shallow depictions.

How can a large majority of us not be offended? Imagine trying to explain “Redskins” to a foreign visitor or a time-traveler from the future? Every time I say the word, I throw up in my mouth a little and wonder why there is no widespread outrage.

I’ve heard all the arguments about why this name should be allowed to exist, and they move me about as much as Jim Zorn’s red-zone offense in a tight game against a strong opponent. (Sorry – I realize that was a cheap shot. Besides, I wouldn’t want to get ‘Skins fans ticked off at me or anything.)

You can spare me the protestations about how the name is actually a tribute to Native Americans, or how other allegedly similar groups (Vikings? Really?) are also consigned to mascot status. You can skip the talk about the importance of the team name to its fans or the tradition that would be compromised were it to be changed.

I’m not hearing it, because if I close my eyes and think about where we are as a society and the fact that this name still exists, it’s a complete travesty on both visceral and logical levels.

Would we “honor,” say, Chicago’s African-American population by calling its NFL team the Brownskins?

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D.C. Circuit Sides with Redskins on Trademark

Matthew L.M. Fletcher

From How Appealing:

“Appeals Court Lets Redskins Keep Name, Trademark”: The Washington Post has this news update.

And The Associated Press reports that “Appeals court sides with Redskins on trademark.”

My earlier coverage of today’s D.C. Circuit ruling appears at this link.

An excerpt from the opinion:

At bottom, this case concerns whether various trademarks related to the Washington Redskins football team disparage Native Americans within the meaning of the Lanham Trademark Act, § 2, 15 U.S.C. § 1052(a). But that question has since been overshadowed by the defense of laches, the basis on which the district court first entered judgment for the Redskins six years ago. We reversed that decision, finding that the district court had misapplied the law of laches to the particular facts of the case. Pro-Football, Inc. v. Harjo (Harjo II), 415 F.3d 44, 50 (D.C. Cir. 2005). On remand, the district court reconsidered the evidence in light of our instructions and again ruled for the team. Pro-Football, Inc. v. Harjo (Harjo III), 567 F. Supp. 2d 46, 62 (D.D.C. 2008). Now appealing that decision, plaintiffs argue only that the district court improperly assessed evidence of prejudice in applying laches to the facts at issue. Limited to that question, we see no error and affirm.

BLT on Cobell Oral Argument

Matthew L.M. Fletcher

From the BLT:

The U.S. Court of Appeals has issued nine opinions in the longstanding dispute between a group of American Indians and the Interior Department, and with yet another oral argument session today in the 13-year-old case you can expect at least one more opinion.

“Has it only been 13 years?” Chief Judge David Sentelle said today in court, where more than 100 people interested in the case gathered in the ceremonial courtroom to hear argument. “Some of us didn’t have gray hair when this started,” said D.C. solo practitioner Dennis Gingold, lead counsel for the plaintiffs. “Some of us had hair,” Judge Douglas Ginsburg responded.

The plaintiffs, including Elouise Cobell, a member of the Blackfeet tribe in Montana, allege the government owes billions of dollars for mismanaging a trust fund for the collection and dispersal of royalties from oil and gas companies, among others, that leased Indian land.

U.S. District Judge James Robertson last summer ordered the government to pay $455.6 million to the plaintiffs stemming from mismanagement of the Individual Indian Money trust. Both sides appealed the ruling. Robertson called a full, historical account “impossible” considering the cost of such a pursuit.

Cheyenne-Araphoe v. United States in D.C. Circuit

Matthew L.M. Fletcher

The D.C. Circuit ruled against the Cheyenne-Arapahoe Tribes of Oklahoma in this case (opinion here) (H/T Indianz). Here is an excerpt:

This appeal involves disputed rights to land originally designated as part of a reservation for the Cheyenne Arapaho Tribes of Oklahoma and later set apart by executive order as a U.S. military installation. The district court dismissed the Tribes’ action to quiet title to the land for lack of subject matter jurisdiction. The Tribes argue that the court erred in dismissing the case prematurely without allowing for jurisdictional discovery. Because the Tribes fail to specify what facts discovery could produce that would alter the jurisdictional analysis, we hold that the district court did not abuse its discretion in denying the Tribes’ discovery request.

EPA Cert Petition in EPA v. New Jersey

Matthew L.M. Fletcher1 Comment

This petition joins one already filed by the utilites (earlier cert petition and D.C. Circuit briefs and opinion here and here and here).

epa-cert-petition-in-epa-v-nj

Government to Appeal Cobell Award

Matthew L.M. Fletcher

Ah, the government’s going for the big banana — they appear to be arguing that since Judge Robertson’s earlier opinion that an accounting was impossible also means that a money award is impossible, too.

Here’s the news article.