Federal Circuit

Cert Petition in Arctic Slope v. Sebelius (II)

Matthew L.M. Fletcher6 Comments

It will be interesting to see what the OSG does with this. The last time a circuit split developed in similar circumstances, the government brought a cert petition and essentially concurred with the tribal cert petition (Cherokee Nation v. Leavitt).

Here are the materials:

Arctic Slope 2 Pet (2011)

Arctic Slope II Pet Appendix

Here is the question presented:

Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

Here are the lower court materials.

And here are the materials in Ramah, the Tenth Circuit case that generates the circuit split.

San Carlos Apache En Banc Petition in Federal Circuit

Matthew L.M. Fletcher

Here:

San Carlos Apache En Banc Petition.

Here is our post to the split panel decision.

Federal Circuit Rejects Treaty Claims in Harvest Inst. Freedmen Federation

Matthew L.M. Fletcher

Here is the unpublished order. The Federal Circuit had previously ruled against the plaintiffs (and the Supreme Court had denied cert) here, but the plaintiffs asserted that the D.C. Circuit’s 2009 decision in Cobell v. Salazar had changed the law. It did not, according to the Federal Circuit.

Federal Circuit Briefing in Wind River Shoshone v. United States

Matthew L.M. Fletcher1 Comment

Here:

Opening brief here.

US Appellee Brief in Shoshone

Wind River Shoshone Reply

En Banc Petition and Opposition in Arctic Slope Assn. v. Sebelius (Fed. Cir.)

Matthew L.M. Fletcher

Here:

Arctic Slope Petition for En Banc Review

USA Opposition to Arctic Slope Petition for En Banc Review

Federal Circuit panel opinion here.

Federal Circuit Affirms (2-1) Dismissal of San Carlos Apache Trust Breach Case re: Gila River Water Rights

Matthew L.M. Fletcher1 Comment

Here is the opinion in San Carlos Apache Tribe v. United States.

An excerpt from the majority:

The San Carlos Apache Tribe (“Tribe”) appeals from a decision of the United States Court of Federal Claims, which dismissed the Tribe’s monetary damages claim against the United States for an alleged breach of fiduciary duty relating to water rights in the Gila River. Because the Court of Federal Claims correctly granted the government’s motion to dismiss the Tribe’s claim for lack of jurisdiction, we affirm.

And from the dissent:

For decades the United States stood together with the San Carlos Apache Tribe, in federal and state court, pressing the position that the 1935 Globe Equity Decree did not finally determine the Tribe’s water rights in the Gila River. When the issue was resolved in 2006 in the Arizona Supreme Court, and the Tribe’s water rights were finally lost, the Tribe filed a claim for monetary damages in the Court of Federal Claims. In that court, for the first time, the United States took the position that the claim became time-barred six years after the Globe Equity Decree of 1935. The government now argues, and my colleagues now agree, that the Tribe was required to file this suit for the value of the lost water rights, before the water rights had been finally lost and before any claim for damages arose. The court holds that this Tucker Act claim became time-barred in 1941, although its premises did not arise until the Arizona Supreme Court finally resolved the water rights issue in 2006. Thus this court provides “yet another instance of the manifest injustice which has assailed the Tribe at virtually every turn since their dealings with the United States and its citizens began.” United States v. Gila Valley Irrigation Dist., 804 F. Supp. 1, 5 (D. Ariz. 1992). I respectfully dissent.

Cert Petition in Rosales v. United States

Matthew L.M. Fletcher

Here is the petition: Rosales Cert Petition

The unpublished Federal Circuit decision is here.

The questions presented are:

This Court holds that the Indian Reorganization Act (“IRA”), 25 U.S.C. §479, “limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934.” Carcieri v. Salazar (“Carcieri”), 129 S.Ct. 1058, 1061 (2009), now followed by the District of Columbia Circuit in Patchak v. Salazar (“Patchak”), No.09-5324,2011 WL 192495 (D.C. Cir. 2011).

Here, the Federal Circuit held in conflict with these decisions, that whether the tribe was under Federal jurisdiction in 1934 was irrelevant, in determining whether the tribe became a beneficial owner of Indian trust land. The questions presented are:

1. Must a court decide whether a tribe was under Federal jurisdiction in 1934, whenever a tribe claims an interest in Indian trust land adverse to a state or individual’s interest in that property?

2. Must a court decide whether a tribe was under Federal jurisdiction in 1934, when determining the timeliness of Petitioners’ Tucker Act claims that the tribe never became a beneficial owner of Indian trust land?

3. Must a court decide whether a tribe was under Federal jurisdiction in 1934, in determining whether the tribe was a required, but absent party, claiming an interest in Petitioners’ beneficial interest in trust property?

An excerpt from the lower court decision:

Continue reading →

Federal Circuit Reinstates and Remands Klamath Irrigation Dist. v. United States

Matthew L.M. Fletcher

Here is today’s opinion.

We now vacate the judgment of the Court of Federal Claims and remand the case to the court for further proceedings.  On remand, the court is to (1) consider the takings and Compact claims in light of the  Certification Decision; (2) determine whether, as far as the breach of contract claims are concerned, the government can establish that, for purposes of its defense based on the sovereign acts doctrine, contract performance was impossible; and (3) decide the breach of contract claims as appropriate.

Ed DuMont’s Nomination to the Federal Circuit Remains in Limbo

Matthew L.M. Fletcher

Updates on Mr. DuMont’s nomination are here.

Our prior post on Mr. DuMont is here.

Wind River Tribes’ Opening Brief in Federal Circuit Appeal of Trust Claim re: “Conversion” of Tribal Mineral Leases

Matthew L.M. Fletcher1 Comment

Here is that brief in Shoshone Tribe v. United States: Wind River Tribes Opening Brief