Arizona Federal Court Declines to Issue Preliminary Injunction in Oak Flat Matter

Here are the new materials in San Carlos Apache Tribe v. United States (D. Ariz.):

105 Tribe Motion for Preliminary Injunction

114 Federal Opposition

116 Resolution Copper Opposition

119 Reply

124 DCT Order

New Scholarship on San Carlos Apache Water Rights

Daniel Lee has published his note, “Statutes of Ill Repose and Threshold Canons of Construction: A Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States” in the Seattle University Law Review.

Here is the abstract:

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and awarded significant water rights to private parties and other Indian tribes. In particular, this Note focuses on the Federal Circuit’s decision in 2011 that the San Carlos Apache Tribe could not seek damages against the United States for improperly diminishing the Tribe’s reserved water rights to the Gila River under the Decree because the court determined that the statute of limitations had run. This Note argues that the case was wrongly decided. It then proposes two new analytical devices to overcome the recent trend of courts denying remedies to tribes based on supposedly unambiguous language of treaties, statutes, and decrees.

Supreme Court Grants Cert in Match-E-Be-Nash-She-Wish Band v. Patchak

The order list is here.  Additional commentary on the case is likely.

In the same order, The Court CVSG’d Corboy v. Louie and denied the motion in San Carlos Apache Tribe v. United States to file a writ of cert out of time.

San Carlos Apache En Banc Petition in Federal Circuit

Here:

San Carlos Apache En Banc Petition.

Here is our post to the split panel decision.

Federal Circuit Affirms (2-1) Dismissal of San Carlos Apache Trust Breach Case re: Gila River Water Rights

Here is the opinion in San Carlos Apache Tribe v. United States.

An excerpt from the majority:

The San Carlos Apache Tribe (“Tribe”) appeals from a decision of the United States Court of Federal Claims, which dismissed the Tribe’s monetary damages claim against the United States for an alleged breach of fiduciary duty relating to water rights in the Gila River. Because the Court of Federal Claims correctly granted the government’s motion to dismiss the Tribe’s claim for lack of jurisdiction, we affirm.

And from the dissent:

For decades the United States stood together with the San Carlos Apache Tribe, in federal and state court, pressing the position that the 1935 Globe Equity Decree did not finally determine the Tribe’s water rights in the Gila River. When the issue was resolved in 2006 in the Arizona Supreme Court, and the Tribe’s water rights were finally lost, the Tribe filed a claim for monetary damages in the Court of Federal Claims. In that court, for the first time, the United States took the position that the claim became time-barred six years after the Globe Equity Decree of 1935. The government now argues, and my colleagues now agree, that the Tribe was required to file this suit for the value of the lost water rights, before the water rights had been finally lost and before any claim for damages arose. The court holds that this Tucker Act claim became time-barred in 1941, although its premises did not arise until the Arizona Supreme Court finally resolved the water rights issue in 2006. Thus this court provides “yet another instance of the manifest injustice which has assailed the Tribe at virtually every turn since their dealings with the United States and its citizens began.” United States v. Gila Valley Irrigation Dist., 804 F. Supp. 1, 5 (D. Ariz. 1992). I respectfully dissent.