Fifth Amendment takings

Federal Claims Court Dismisses Takings Claim Brought by Neighbor to Cherokee Casino

Matthew L.M. Fletcher

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

7 Amended Complaint.pdfDownload
9 Motion to Dismiss.pdfDownload
9-2 Aerial Photo.pdfDownload
11 Response.pdfDownload
12 Reply.pdfDownload
18 DCT Order.pdfDownload

Alaska Federal Court Pushes ANC Takings Claim against US to Trial

Matthew L.M. Fletcher

Here are the materials in Cully Corp. v. United States (Fed. Cl.):

One wishes this case were about walruses. . . .
42 Second Amended Complaint.pdfDownload
80 Cully Corp Motion for Summary J.pdfDownload
83 US Motion for Summary J.pdfDownload
87 Cully Response.pdfDownload
88 US Response.pdfDownload
93 Cully Reply.pdfDownload
94 Reply.pdfDownload
122 CFC Order.pdfDownload

New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations

Matthew L.M. Fletcher1 Comment

Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.

Here is the abstract:

The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.

This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.

Federal Circuit Dismisses Navajo Takings Claim as Time-Barred

Matthew L.M. Fletcher

Here is the opinion in Navajo Nation v. United States.

An excerpt:

The Navajo Nation appeals a judgment of the United States Court of Federal Claims denying its claim seeking damages for an alleged Fifth Amendment taking of its right to develop land granted to it by the United States in 1934. See Navajo Nation v. United States, No. 88-CV-508 (Fed. Cl. July 13, 2009). Because we conclude that the claim is barred by the six-year statute of limitations set out in 28 U.S.C. § 2501, we vacate the judgment of the Court of Federal Claims and remand with instructions to dismiss for lack of jurisdiction.

And the materials:

Navajo Appellant Brief

US Appellee Brief in Navajo v US

Navajo Reply

Our earlier post on this was here.