Non-Indian Takings Claims Survives Summary Judgment in On-Reservation Lease Dispute

Here is the opinion in McGuire v. United States (Fed. Cl.): McGuire v. United States

An excerpt:

Jerry McGuire brought this inverse condemnation claim nine years ago in a federal bankruptcy proceeding in district court in Arizona. He alleges that the government took his leased property by removing a bridge he used to access the northern portion of the property. He thus demands more than $2 million in compensation. After a trial and appeal, the United States Court of Appeals for the Ninth Circuit held that exclusive jurisdiction over the merits of McGuire’s claim rests in the United States Court of Federal Claims.McGuire v. United States, 550 F.3d 903, 906 (9th Cir. 2008). The Ninth Circuit therefore remanded the case with instructions to transfer it here, and this Court received it on June 10, 2009.

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For the above stated reasons, the government’s Motion To Dismiss is DENIED, and the government’s Motion For Summary Judgment is DENIED in part and GRANTED in part. Issues of material fact exist as to whether a legally cognizable property interest exists for purposes of the Fifth Amendment, as to whether a taking by loss of access occurred, and as to whether a regulatory taking occurred under Penn Central. 438 U.S. at 124. The Court, however, finds that summary judgment for defendant is proper on the issue of McGuire’s claim for a categorical taking under Lucas. 505 U.S. at 1015. The Clerk is directed to act in accordance with the Court’s ruling.

Ninth Circuit Affirms Injunction against Waste Disposal Facility on Indian Allotment

Not sure what tribe is involved, but this case (United States v. Tarlow Realty, Inc.)  involves the government’s efforts to shut down a waste disposal unit on an Indian trust allotment. It succeeded. Of note, the unpublished opinion offers this commentary about the potential conflict of interest demonstrated by the government:

Finally, we note that the Government instigated this suit at the behest of two different federal agencies — the EPA and the BIA — and that it thus represents both the general public and the allottees, whose interests may diverge in some respects. Congress permits the Government to serve dual advocacy roles as environmental steward and allotment trustee, see Nevada, 463 U.S. at 128, 135 n.14, but the Government’s focus in this case on the former, with little evident regard for the latter, raises some concern. The statutory scheme governing third-party commercial use of allotted land places the Government, in its capacity as landowner and trustee, in the paternalistic position of sanctioning only those land uses which strike an appropriate balance between economic development for the allottees and the impact of that development on the environmental health and safety of the allotment property and surrounding community. See 25 U.S.C. §§ 348, 415(a); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1393 (9th Cir. 1987); Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072, 1074-75 (9th Cir. 1983); United States v. S. Pac. Transp. Co., 543 F.2d 676, 698, 699 (9th Cir. 1976). In litigating this case, the Government has vigorously pursued its role as advocate for the environment and the general public, and admirably so, but it may have given shorter shrift to its role as representative of the economic interests of the allottees. In fact, nowhere in the record or the Government’s brief is there a discussion of how and whether this litigation serves the allottees’ welfare. We suspect that enjoining further operation of the waste disposal facility and redeveloping the property probably does serve their long-term economic interests, but the Government’s failure to so much as mention its obligation in this regard leaves the impression, right or wrong, that it may have eschewed this duty altogether. Nevertheless, while in different circumstances that might have affected the outcome, in this case we are satisfied that the Government did not act in excess of its authority.

US v. Boise — Challenge to Confession Obtained by Tribal Police

Here’s an Indian Civil Rights Act-related case out of the District of Oregon involving a motion to suppress a statement obtained by tribal police to be used as evidence in federal court. The motion was denied.

boise-motion-to-suppress

us-response-to-boise-motion

boise-reply-brief

us-v-boise-dct-order-denying-motion-to-suppress

Political Status of Indian Tribes Article in St. John’s Law Review

My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.

Here’s the introduction:

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