Land Claims Outline

1. METHOD 1: Suit to enforce the trust responsibility

   1. complicated by sovereign immunity (unless under Indian Claims)

   2. Statutes rarely recognize the federal fiduciary duty and therefore it can be difficult to enforce

      1. you need a COA

         1. One place where a broad COA can be found is in the APA

         2. unfortunately this only allows for injunctive relief rather than money damages

      2. and statute waiving sovereignty

         1. generally the waiver by itself does not create a COA

   3. Courts have at times recognized the trust relationship as a COA

      1. it’s a “creature of federal common law”

      2. in 2006 the 9^th circuit cast doubt on this expansive view of the trust relationship as a COA in Gros Ventre Tribe

2. Mitchell I

   1. Hold: Jurisdiction is only granted under Tucker Act if the claimant had a substantive COA founded in other law

      1. Ct. did not determine whether the Tucker Act waived sovereign immunity

   2. Hold 2: The General Allotment Act itself did not create a substantive claim for breach of trust in mismanagement of timber resources

      1. Reasons

         1. Act creates a limited trust bc it was intended to eventually get the gov out of taking care of tribes

         2. trust was temporary

         3. gov. didn’t show it intended to take on full responsibilities

         4. Concern about limiting the federal governments liability

            1. probably what is really going on

            2. the limited trust argument is a little intellectually dishonest

   3. What is the effect

      1. its possible that some trust relationship would be enough for a COA but it would need to be full trust, not this

3. Mitchell II

   1. Ct. clearly held that Tucker Acts waives of sovereign immunity for the included claims

   2. Issue: whether the specific timber act would allow for a COA

   3. Hold: Yes – this act is specific enough to establish a full (rather than the Mitchell I limited) trust responsibility

      1. its unclear, but possible that once you have a statute for a COA you may be able to use common law to broaden it – i.e. you may be able to add duties

         1. total gray area – ct has since somewhat retreated from this possibility

   4. Rules:

      1. It is enough that the statute creating the Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages

      2. The COA does not need to waive sovereign immunity if it was waived under the Tucker Act

      3. If government has control or supervision over tribal moneys or properties a fiduciary relationship normally exists

         Summary of Mitchell I & II: The Tucker Act will waive sovereign immunity but will not provide a COA. The COA must be found in another act and that Act must be sufficiently specific in order to establish a full trust responsibility.

         Cobell v. Norton

   5. US was in charge of taking care of Allotment lands for individual Indians, ensuring they got payment if the land was used for mineral extraction etc.

   6. The government grossly mismanaged the lands and the accounting of the lands

      1. negligence, lack of technology and fraud caused this

   7. Ps brought a class action suit against this: seeking equitable relief – accounting for the money and to reform policies

   8. Must determine whether there is a waiver and a COA

      1. Court finds the trust requirement from common law not in a special statute

   9. But must also deal with the APA

      1. Government argues that the APA provides deference to the agency

         1. sympathetic court...

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