Federal Circuit

Harvest Inst. Freedmen Federation v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

This has no chance of being granted, but it’s interesting anyway — Harvest Institute Freedmen Federation v United States Cert Petition.

The question presented:

The claims in this action were brought on behalf of representatives of persons formerly held in bondage by the so-called “Five Civilized” Indian Tribes, hereinafter “Freedmen.” The Freedmen were beneficiaries of the various trusts established between the Five Civilized Tribes and the United States by 1866 treaties, which were later modified by further allotments in 1902. The question presented is whether the United States Court of Appeals for the Federal Circuit erroneously affirmed dismissal under28 U.S.C. §2501 of Petitioners’ claims without addressing in any manner whatsoever Petitioners’ Repudiation Rule argument that the statute of limitations does not begin to run on claims by a trust beneficiary like Petitioners’, against a trustee, here the United States, to enforce the terms of a trust until, the trustee repudiates the trust relationship, something that to date the United States has not done.

Here are the district court materials and and the Federal Circuit decision.

Wolfchild v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

Here — Wolfchild Cert Petition

Questions presented:

1. After Carcieri, whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 IRA or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved.

2. Whether the Federal Circuit’s holding of “statutory use restrictions” in Congressional Appropriation Acts establishing statutory obligations on the United States, but no “trust,” departs from applicable statutory interpretation and trust principles set forth in United States v. Mitchell, 463 U.S. 206 (1983) and its progeny.

3. Whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust impermissibly conflicts with the First Circuit’s decision in Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1979) in that the Federal Circuit failed to consider the 1934 IRA’s extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the “clear and unambiguous requirement” for a trust termination act.

Earlier posts on this case here, here, and here.

Federal Circuit Reaffirms Tohono O’Odham Principle

Matthew L.M. Fletcher1 Comment

… that tribes may bring different claims for relief from the same facts in both federal district court and the federal court of claims.

Eastern Shawnee Tribe of OK v USA 08-5102 (Fed. Cir. 09-17-

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.

Continue reading →

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.