Skokomish Claim against US over Cushman Dam Dismissed

Here are the materials in Skokomish Indian Tribe v. United States (Fed. Cl.):

5 Amended Complaint

13-1 Motion to Dismiss

27 Skokomish Response

29 Reply

37 Opinion Granting Mot Dismiss

What the Skokomish River once looked like:

Before Pic of Skokomish River

New Scholarship Supporting Reform of 25 U.S.C. § 1500

Emily S. Bremer & Jonathan R. Siegel have published Clearing the Path to Justice: The Need to Reform 28 U.S.C. § 1500, in the Alabama Law Review.

An excerpt:

Plaintiffs suing the United States face a little-known obstacle to justice: 28 U.S.C. § 1500. This statute prohibits the United States Court of Federal Claims from exercising jurisdiction over a claim if the plaintiff has the same claim pending in another court. This apparently sensible rule causes considerable trouble because a “claim” is understood to include all claims based on the same operative facts, and Congress has required that certain types of claims against the United States must go to different courts. Therefore, a plaintiff with multiple claims against the United States may neither be able to bring the claims together in one case nor split them into separate cases. Section 1500 may effectively compel such a plaintiff to pursue only one claim and abandon the others. This unjust result  is contrary to fundamental principles of modern civil procedure, which allow a plaintiff to pursue multiple claims against a defendant. Worse, it serves no good purpose. This Article argues that Congress should repeal § 1500 to provide justice to plaintiffs with multiple claims against the United States.

This article is based on a report they co-authored for the United States Administrative Conference.

US Administrative Conference Recommends Repeal/Reform of 28 U.S.C. § 1500

Here. PDF of report.

Here are background materials.

Department of Justice opposes, which is unfortunate, given that the Department specifically asked for tribal comments on the proposal to repeal or reform the statute.

Updated Materials on Proposal to Amend/Repeal Section 1500


NCAI letter on 28 U S C § 1500 to DOJ

Section 1500 Letter w_Attachments 11_9_12

Nez Perce Tribe Comments to DOJ 11_09_12

Defs Post-Hearing Brief inSuuport of Sec 1500 Dismissal CFC 02_28_08

1500 Filing Facts 11_01_12

Prior posts here and here.

Administrative Conference Recommends Repeal and Replacement of Section 1500

Tribal support needed. Here are the materials:

S 1500_ Revised draft recommendation _ 09202012

ACUS 1500 Tribal Views Letter

DOJ Statement Re Section 1500 Proposal

From DOJ:

The Department of Justice is seeking input from tribal leaders to assist the Department in formulating the official position it will take on a proposal that will be considered in early December 2012 by the Administrative Conference of the United States, of which the Department is a member. The proposal, which did not originate at the Department of Justice, would recommend to Congress that it repeal and replace 28 U.S.C. 1500, a Federal statute that prohibits consideration by the United States Court of Federal Claims of otherwise cognizable claims if the plaintiff also has pending litigation against the United States in any other court based on substantially the same operative facts, regardless of the type of relief sought. Additional information regarding the statute and the proposal are included in the attached letter and enclosures.

On Using Indians and Tribes as Shills in the Supreme Court

I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).

Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.

A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.

Crow Creek Trust Claims Dismissed under Tohono O’odham Decision

Here is the opinion:

Crow Creek Sioux Tribe v US

An excerpt:

Plaintiff Crow Creek Sioux Tribe filed this suit on December 29, 2005, seeking damages for Defendant’s breach of fiduciary duties and mismanagement of Plaintiff’s trust corpus. Almost 19 months earlier, on June 2, 2004, Plaintiff had filed a similar case against the Secretary of the Interior and the Secretary of the Treasury for declaratory and injunctive relief in the United States District Court for the District of Columbia. Crow Creek Sioux Tribe v. Norton, No. 1:04-cv-00900 (D.D.C.).

Defendant moves to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and 28 U.S.C. § 1500 (2006). As set forth below, Plaintiff’s District Court  [2] action is “for or in respect to” the same claim as the instant action and was pending at the time this action was filed. The Court is therefore bound by § 1500 to dismiss Plaintiff’s action.

Muscogee (Creek) Nation of Oklahoma v. U.S. Dismissed Under U.S. v. Tohono O’Odham Nation

The order from the Court of Federal Claims is here.

By statute this court lacks jurisdiction over any suit “for or in respect to” claims that are pending in another court. Defendant’s Motion to Dismiss contends that plaintiff’s previously-filed district court complaint shares substantially the same operative facts as this, the second-filed action. For the following reasons, because plaintiff’s district court litigation was pending at the time the instant matter was filed, and was “for or in respect to the same claim,” applying 28 U.S.C. § 1500 (2006) as recently clarified by United States v. Tohono O’Odham Nation, 131 S. Ct. 1723 (2011), defendant’s Motion is GRANTED.

The Appendix, included in the order, gives a side by side comparison of the two claims.