Federal Circuit

Indian Country Should Look at Federal Circuit Vacancies

Matthew L.M. Fletcher

BLT reports that numerous vacancies will be opening soon on the Federal Circuit, which the writers refer to as “patent-heavy.”

That’s true, but the Circuit also hears a significant number of Indian law cases as well.

For example, the Circuit issued opinions in Tohono O’odham Nation v. U.S. and Wolfchild v. U.S. in 2009. And Navajo Nation v. United States (I and II), the Peabody Coal case that went to the SCT twice was a Federal Circuit case.

We suppose the patent bar will scream bloody murder if President Obama nominates an American Indian lawyer to this Circuit, but — who knows? — maybe it can be done.

Something to think about.

Federal Circuit Rejects Trademark Application of Shinnecock Smoke Shop

Matthew L.M. Fletcher

Here is the opinion in In re Shinnecock Smoke Shop. An excerpt:

In June 2006, Jonathan K. Smith (Applicant), a U.S. citizen and member of the Shinnecock Indian Nation and sole proprietor of Shinnecock Smoke Shop, filed two trademark applications with the United States Patent and Trademark Office (USPTO), seeking to register the marks SHINNECOCK BRAND FULL FLAVOR and SHINNECOCK BRAND LIGHTS (Serial Nos. 78/918,061 and 78/918,500 respectively) for cigarettes. Both marks also included the wording “MADE UNDER SOVEREIGN AUTHORITY.”

The Trademark Examining Attorney (Examining Attorney) refused to register the proposed marks, citing Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), which generally protects against registering marks that falsely suggest a connection to a non-sponsoring entity. Applicant appealed to the Trademark Trial and Appeal Board (Board) which affirmed because it agreed that the marks falsely suggested a connection with the non-sponsoring Shinnecock Indian Nation. The Board also rejected Applicant’s constitutional and treaty-based claims that pertained to his allegations of racial discrimination. Applicant timely appealed the Board’s decision to this court. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(4)(B). We affirm.

Wolfchild En Banc Petition

Matthew L.M. Fletcher

Here is the petition — Wolfchild En Banc Petition

An excerpt:

this appeal requires an answer to the following precedent-setting questions of exceptional importance:

(1) Should en banc review be granted when a panel’s analysis fails to follow principles of statutory construction resulting in the re-construction of Indian trust law contradicting Supreme Court and Federal Circuit precedent?

(2) Should en banc review be granted when a panel’s decision fails to apply recent Supreme Court precedent relating to Indian trust law beneficiaries and contradicts long-settled principles of law regarding termination of Native American trusts?

Tohono O’Odham Nation v. United States in Federal Circuit — UPDATED with Briefs

Matthew L.M. Fletcher1 Comment

Here is the decision in T.O.N. v. United States: ton-v-us

An excerpt:

This case concerns the application of 28 U.S.C. § 1500, the statute that divests the United States Court of Federal Claims of jurisdiction over “any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States.” Applying § 1500, the Court of Federal Claims dismissed an action brought by the Tohono O’odham Nation (the “Nation”) alleging that the United States breached certain fiduciary duties as trustee of funds and property owned by the Nation. Tohono O’odham Nation v. United States, 79 Fed. Cl. 645, 646 (2007). Because we conclude that the Nation’s complaint in the Court of Federal Claims seeks relief that is different from the relief sought in its earlier-filed district court action, we reverse.

Here are the briefs:

brief-of-plaintiff-appellant-tohono-o_odham-nation-filed-5_5_08

answering-brief-of-the-united-states-7-30-08

to-reply-brief

Comments on the Wolfchild Case

Matthew L.M. Fletcher12 Comments

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

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Loyal Mdewakanton Suit in the Federal Circuit

Matthew L.M. Fletcher

From How Appealing:

The U.S. Court of Appeals for the Federal Circuit examines the federal government’s obligations to the loyal Mdewakanton band of the Sioux tribe: You can access today’s lengthy ruling at this link.

The case reaches the Federal Circuit from the U.S. Court of Federal Claims, whose rulings on the matter can be accessed here and here.

In late October 2004, Minnesota Public Radio had a report headlined “‘Loyal Mdewakantons’ win land dispute” about the first of those two rulings.

Federal Circuit Denies Western Shoshone Attempt to Reopen Dann Case

Matthew L.M. Fletcher1 Comment

western-shoshone-v-us-fed-circuit-opinion

The briefs and materials are here.

United States v. Navajo Nation Cert Petition

Matthew L.M. Fletcher1 Comment

The United States petitioned for cert in the ongoing Navajo Nation case over the Peabody Coal debacle. The Supreme Court held in 2003 that the Indian Mineral Leasing Act did not create a duty, but the Federal Circuit on remand resurrected the claim. Once again, the claim may give rise to $600 million in damages to the United States.

us-v-navajo-cert-petition

The lower court materials (briefs and opinions) are here.

Charles Wilkinson’s Remarks before the Federal Circuit

Matthew L.M. Fletcher

From the Federal Circuit Bar Journal (17 Fed. Circuit B.J. 235 (2008)):

Here’s an excerpt from “Indian Nations and the Federal Government: What Will Justice Require in the Future?”, a part of the 20th Annual Federal Circuit Judicial Conference:

The Court of Federal Claims has asked me to take a few minutes to step back, look out toward the horizon, and even dream a bit, about what the field of Indian law might be and I’m honored to oblige as best I can.

I believe that Indian tribes would receive the high justice they deserve from our courts if judges were to understand two legal doctrines in their full context and to understand them in two different ages. What I will propose is easy to state but difficult to apply. Yet it is realistic and can be done largely or completely by those judges able to invest the time.

I wish that judges could know tribal sovereignty and the trust relationship. I wish further that they could know them under the circumstances at treaty time and under the circumstances today. And I wish that they couldfeel them as well as know them. Lawyers and judges apply most legal rules mechanically. But some patches of law, because of their sensitive content, histories, and human faces, hold elevated places in the law. These are the terrains of the law that wefeel -free speech, due process in a murder trial, freedom from racial discrimination and others-the ones that touch a judge’s soul, the ones that make a judge put in the time, reflect, worry, and insist on pure justice, however that may cut in a particular case. Tribal sovereignty and the trust rightfully belong in that company, the law’s highest company.

***

Much of the law of tribal sovereignty comes back to tribal courts. This applies even to cases that do not directly involve tribal court jurisdiction. Should a federal court uphold a tribal tax, zoning ordinance, or fishing or hunting regulation? Non-Indians may be affected. The tribal courts inevitably must be considered because, if the tribe has the substantive lawmaking authority, then disputes will go to tribal court. Can the federal court trust the tribal court?

To a person, state and federal judges know both state and federal courts and how they work. It’s second-nature. But very few know much about tribal courts. Given that, it’s human nature for federal and state judges to be concerned about upholding the jurisdiction of courts that may be incompetent or unfair. This is important: Tribes own 58 million acres in the 48 continuous states-an area larger than Minnesota-and the tribal land base is steadily growing.

Klamath Irrigation District v. US (CAFed) Materials

Matthew L.M. Fletcher

Here are the materials in the big Klamath River case, which may be settled (unless the tribal opposition to a settlement succeeds):

Opening Brief [not available]

United States Appellee Brief

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