Two Indian Law Cases are “Petitions to Watch”

Keep an eye out for Monday’s announcement of new orders in pending petitions, and expect at least one Indian law case to be granted. My money’s on the Tohono O’odham case.

From SCOTUS Blog:

Title: United States v. Tohono O’odham Nation
Docket: 09-846
Issue: Whether 28 U.S.C. § 1500 — which precludes jurisdiction by the Court of Federal Claims (CFC) over ”any claim for or in respect to which the plaintiff has any suit or process against the United States” or its agents “pending in any other court” – deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

Title: Wolfchild v. United StatesZephier v. United States
Docket: 09-57909-580
Issues: (1) Whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 Indian Reorganization Act or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved; (2) whether the Federal Circuit’s holding of “statutory use restrictions” in congressional appropriation acts establishing statutory obligations on the United States, but no “trust,” departs from applicable statutory interpretation and trust principles; and (3) whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust was impermissible given that the court failed to consider the 1934 IRA’s extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the “clear and unambiguous requirement” for a trust termination act.

Government’s Cert Opposition Brief in Wolfchild/Zephier

Here: US Cert Opposition

This petition (materials in Wolfchild here, and in Zephier here) has gotten some attention based on the fact that the United States originally chose not to file a cert opp brief, but the Supreme Court called for a response, indicating at least the possibility that the Court is interested. Still fairly remote though….

Indian Country Should Look at Federal Circuit Vacancies

BLT reports that numerous vacancies will be opening soon on the Federal Circuit, which the writers refer to as “patent-heavy.”

That’s true, but the Circuit also hears a significant number of Indian law cases as well.

For example, the Circuit issued opinions in Tohono O’odham Nation v. U.S. and Wolfchild v. U.S. in 2009. And Navajo Nation v. United States (I and II), the Peabody Coal case that went to the SCT twice was a Federal Circuit case.

We suppose the patent bar will scream bloody murder if President Obama nominates an American Indian lawyer to this Circuit, but — who knows? — maybe it can be done.

Something to think about.

Wolfchild En Banc Petition

Here is the petition — Wolfchild En Banc Petition

An excerpt:

this appeal requires an answer to the following precedent-setting questions of exceptional importance:

(1) Should en banc review be granted when a panel’s analysis fails to follow principles of statutory construction resulting in the re-construction of Indian trust law contradicting Supreme Court and Federal Circuit precedent?

(2) Should en banc review be granted when a panel’s decision fails to apply recent Supreme Court precedent relating to Indian trust law beneficiaries and contradicts long-settled principles of law regarding termination of Native American trusts?

Comments on the Wolfchild Case

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

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Loyal Mdewakanton Suit in the Federal Circuit

From How Appealing:

The U.S. Court of Appeals for the Federal Circuit examines the federal government’s obligations to the loyal Mdewakanton band of the Sioux tribe: You can access today’s lengthy ruling at this link.

The case reaches the Federal Circuit from the U.S. Court of Federal Claims, whose rulings on the matter can be accessed here and here.

In late October 2004, Minnesota Public Radio had a report headlined “‘Loyal Mdewakantons’ win land dispute” about the first of those two rulings.