federal trust responsibility

Hopi Tribe Trust Breach Claim re: Safe Drinking Water Fails in Federal Circuit

Matthew L.M. Fletcher

Here is the opinion in Hopi Tribe v. United States.

An excerpt:

The Hopi Tribe filed suit against the United States in the Court of Federal Claims seeking damages to cover the cost of providing safe drinking water on the Hopi Reservation. In order to invoke the trial court’s jurisdiction, the Hopi Tribe must identify a statute or regulation imposing a specific obligation on the United States to provide adequate drinking water that would give rise to a claim for money damages. Because the Court of Federal Claims properly concluded that the Hopi Tribe failed to identify any source for a money-mandating obligation, we affirm

Briefs:

Hopi Tribe Brief

US Answer Brief

Hopi Reply

Lower court materials here.

 

Tenth Circuit Briefs in Flute v. United States — Sand Creek Massacre Trust Accounting Claims

Matthew L.M. Fletcher4 Comments

Here:

Flute Opening Brief

US Answer Brief

Flute Reply Brief

Lower court materials here.

AG Guidelines Stating Principles for Working with Federally Recognized Indian Tribes

Matthew L.M. Fletcher

Here:

79 Fed Reg 73905

Alex Skibine on Indian Law and the New Equal Protection

Matthew L.M. Fletcher

Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.

Here is the abstract:

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

Highly recommended!

Federal Court Dismisses Sand Creek Massacre Trust Accounting Claims

Matthew L.M. Fletcher1 Comment

Here is the order in Flute v. United States (D. Colo.):

36 DCT Order

An excerpt:

In the absence of an enforceable trust, 25 U.S.C. §§ 162a(d) and 4044 do not impose a legally required duty necessary to establish a waiver of sovereign immunity under the APA. See Norton, 542 U.S. at 63–64. Furthermore, plaintiffs’ claims do not concern “losses to or mismanagement of trust funds” and thus do not fall within the 2009 DOI Appropriations Act. See Pub.L. No. 111–88, 123 Stat. at 2922. Finding that the United States has not waived sovereign immunity for this suit, the Court concludes that it lacks jurisdiction over plaintiffs’ claims and must dismiss them without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.2006) ( “[W]here the district court dismisses an action for lack of jurisdiction … the dismissal must be without prejudice.”).

Briefs here. Other materials here.

 

Federal Circuit Briefs in Hopi Tribe v. United States

Matthew L.M. Fletcher

Here:

Hopi Opening Brief

US Answer Brief

Hopi Reply Brief

Lower court materials here.

D.C. Circuit Rules against Navajo Trust Breach Claims in Uranium Mining Contamination Case

Matthew L.M. Fletcher1 Comment

Here is the opinion in El Paso Natural Gas Co. v. United States:

CADC Opinion

Briefs are here.

Briefing Complete in Federal Motion to Dismiss Sand Creek Claims

Matthew L.M. Fletcher1 Comment

Here are the briefs in Flute v. United States (D. Colo.):

US Motion to Dismiss

Flute Opposition to Motion to Dismiss

US Reply

The complaint is here.

Sand Creek Descendants File Brief in Support of Historic Claims

Matthew L.M. Fletcher

Here is the opposition to the government’s motion to dismiss in Flute v. United States (D. Colo.):

Flute Opposition to Motion to Dismiss

Prior posts are here and here.

Federal Court Dismisses Hopi Suit for US Trust Breach over Arsenic Levels in Water

Matthew L.M. Fletcher2 Comments

Here are the materials in Hopi Tribe v. United States (Fed. Cl.):

1 Complaint

10 US Motion to Dismiss

13 Hopi Response

13-1 Puhuyesva Affidavit

13-2 Marley Affidavit

15 US Reply

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.