Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Federal Circuit Affirms Council for Tribal Employment Rights v. United States Without Opinion

Here is the order.

Briefs and lower court materials here.

Federal Circuit Briefs in Council for Tribal Employment Rights v. United States


CTER Brief

US Brief

CTER Reply Brief

Lower court materials here.

Spirit Lake Employee Group’s Contract Claims against Feds Dismissed

Here are the materials in Council for Tribal Employment Rights v. United States (Fed. Cl.):

1-Council for Tribal Employment Rights Complaint

25-US Motion to Dismiss

46-Council Response

48-Council Motion for Partial Summary J

49-US Reply

53-US Opposition

DCT Order Dismissing Complaint

An excerpt:

Council for Tribal Employment Rights (“Council”), a national intertribal nonprofit organization which represents the employment interests of certain Indian tribes, seeks $500,000 in damages for the alleged breach of two agreements which involved the Council, the Office of Indian Energy and Economic Development (“the Office”), a component of the Bureau of Indian Affairs (“the Bureau”), U.S. Department of the Interior, and the Spirit Lake Tribe (“Spirit Lake” or “the Tribe”), a federally recognized Indian tribe. Both agreements were executed as amendments to an existing contract between the Office and Spirit Lake. The first, Amendment 2, involved the provision of funds to support a Native Construction Careers Initiative (“NCCI”) commercial construction training program, and called upon the Council to conduct the training program. The second, Amendment 6, allocated funds to support training projects approved by the Federal Highway  Administration (“FHWA”). The statement of work for that Amendment referenced an FHWA training program agreement which contemplated that the Council would provide training to develop certain certification programs for road construction activities.

Tenth Circuit Reverses Refund Judgment against HUD

The case is Fort Peck Housing Authority v. HUD, and it’s unpublished (again, not sure why cases like these go unpublished).

An excerpt:

This case involves the Native American Housing Assistance and Self- Determination Act of 1996 (NAHASDA), 25 U.S.C. §§ 4101-4243.1 In that act Congress directed the Department of Housing and Urban Development (HUD) to enter into a collaborative process with interested Native American tribes and their designated housing entities (Tribal Housing Entities) to adopt regulations providing for an annual, equitable distribution of available funds for low-income housing assistance. A regulation promulgated in 1998 disqualified funding for housing units which were no longer owned or operated by a Tribal Housing Entity. 24 C.F.R. § 1000.318. In subsequent years HUD mistakenly overpaid Fort Peck Housing Authority (Fort Peck) for dwelling units it no longer owned or operated. After discovering its oversight HUD demanded a refund. Fort Peck partially repaid HUD, but then sued, alleging the “owned or operated” regulation was invalid. The district court agreed but determined Fort Peck was not entitled to a return of all monies it had already refunded. HUD appealed from the court’s invalidation of its regulation and Fort Peck cross-appealed from the denial of return of its repayments. We reverse the invalidation of HUD’s regulation, dismiss Fort Peck’s cross-appeal, and remand.

Boney v. Valline — Suit re: Police Liability under Self-Determination Act & FTCA

Here is the opinion in this case — boney-v-valline-dct-order — where the District of Nevada held that a tribal officer who employed deadly force was enforcing tribal law, and so could not be liable under the FTCA or the Self-Determination Act.

Here are the materials:





US v. Newell — DCT Refuses to Dismiss Indictment Against Former Passamaquoddy Governor

I guess the heading says it all — Robert Newell was indicted for misappropriating federal money while governor of the tribe. His arguments on the motion to dismiss were based in federal Indian law; i.e., sovereign immunity, federal government failure to comply with PL 638. etc.



Self-Determination Act Funding Case — Aleutian Pribilof Islands Assn v. Kempthorne (D. D.C.)

This opinion vacates the Secretary of Interior’s decision to discontinue self-determination act funding the Aleutian Probilof Islands Association, a group of 13 member tribes, in favor of The Aleut Corporation, starting in 2006. Here are the materials:

DCT Opinion

APIA Motion for Summary Judgment

US Cross-Motion for Summary Judgment

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