NCAI Amicus Brief in Menominee Indian Tribe v. United States

Here:

NCAI Amicus Brief

Opening merits brief here.

SCOTUS Grants Cert in Menominee Tribe v. United States

Here is the order list. From the order list:

The petition for a writ of certiorari is granted limited to the following question: Whether the D. C. Circuit misapplied this Court’s Holland decision when it ruled that the Tribe was not entitled to equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act?

Cert stage briefs are here and here.

United States Recommends Certiorari Grant in Menominee Tribe v. United States

Here is the government’s brief:

US cert response brief

An excerpt:

The court of appeals correctly held that neither the Tribe’s erroneous prediction of the outcome of litigation, nor its expectation that the government would deny its administrative claims, warrants equitable tolling of the CDA’s six-year limitations period. That decision, however, squarely conflicts with the Federal Circuit’s decision in Arctic Slope Native Ass’n v. Sebelius, 699 F .3d 1289 (2012), which found tolling appropriate on materially similar facts. In the government’s view, certiorari is warranted.

Cert petition is here.

Lower court materials here.

Menominee Tribe v. United States Cert Petition

Here:

Menominee Indian Tribe Cert Petition

Question presented:

Whether the D.C. Circuit misapplied this Court’s Holland decision when it ruled – in direct conflict with a holding of the Federal Circuit on materially similar facts – that the Tribe did not face an “extraordinary circumstance” warranting equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act?

Lower court materials here.

D.C. Circuit Rules against Menominee Tribe in Equitable Tolling Appeal

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

An excerpt:

Delays caused by a party’s inauspicious legal judgments are not “extraordinary circumstance[s]” sufficient to justify equitable tolling. Faced with a variety of reasonable litigation options, the Menominee Tribe chose to wait and see if more favorable law would appear. In so doing, the Tribe allowed its claims to expire. Because we find that no obstacle stood in the Menominee Tribe’s way of bringing the claims within the limitations period, the judgment of the district court is affirmed.

Briefs and lower court materials here.

D.C. Circuit Rules against Menominee Tribe in Equitable Tolling Appeal

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

An excerpt:

Delays caused by a party’s inauspicious legal judgments are not “extraordinary circumstance[s]” sufficient to justify equitable tolling. Faced with a variety of reasonable litigation options, the Menominee Tribe chose to wait and see if more favorable law would appear. In so doing, the Tribe allowed its claims to expire. Because we find that no obstacle stood in the Menominee Tribe’s way of bringing the claims within the limitations period, the judgment of the district court is affirmed.

Briefs and lower court materials here.

D.C. Circuit Briefing in Menominee Tribe v. United States (IHS)

Here:

Menominee Opening Brief 2013

IHS Brief

Menominee Reply Brief

Lower court materials here.

Prior D.C. Circuit case materials here.

US Army Corps on Great Lakes Treaty Subsistence Fishing

Last summer, the US Army Corps published a report titled “Treaty Rights and Subsistence Fishing in the U.S. Waters of the Great Lakes, Upper Mississippi River, and Ohio River Basins.” It’s well worth a read, especially for those tribes that did not respond to the Corps’ efforts to contact them. The authors wrote whatever they found online in  such cases, and we wonder how accurate those descriptions are.

For example, Menominee Tribe is listed as a non-treaty tribe. For all we know, this may be accurate. But this 1968 Supreme Court case suggests that it is not accurate.

An excerpt from the report:

The U.S. Army Corps of Engineers (USACE), in consultation with other state and federal agencies and Native American tribes, is conducting the Great Lakes and Mississippi River Interbasin Study (GLMRIS) pursuant to the Section 3061(d) of the Water Resources Development Act of 2007. GLMRIS will explore options and technologies, collectively known as aquatic nuisance species (ANS) controls that could be applied to prevent ANS transfer between the Great Lakes, Mississippi River, and Ohio River Basins through aquatic pathways. As defined in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 16 U.S.C. § 4702(1), ANS are nonindigenous species that threaten the diversity or abundance of native species; or the ecological stability of infested waters; or commercial, agricultural, aquacultural, or recreational activities that depend on such waters. In support of GLMRIS, the USACE GLMRIS Fisheries Economics Team is conducting baseline studies of fisheries in the Great Lakes, Mississippi River, and Ohio River Basins. This study focuses on a unique sector of the fisheries — the subsistence fishery undertaken by Native American tribes under treaty rights.