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2011 Top Ten Indian Law Stories
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Supreme Court to Review Gun Lake Casino Site Case
December 12, 2011 (Washington, DC) — The U.S. Supreme Court today agreed to hear a case that affects the casino owned by the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians of Michigan, also known as the Gun Lake Tribe. The tribe opened the Gun Lake Casino on February 11. That was just a couple of weeks after the D.C. Circuit Court of Appeals revived a lawsuit that challenges the trust status of the gaming site. The DC Circuit said David Patchak, a non-Indian, can sue the Bureau of Indian Affairs for approving the tribe’s land-into-trust application. Patchak hopes to show that the tribe wasn’t “under federal jurisdiction” in 1934 — the tribe gained federal recognition in 2000.
The tribe and the Department of Justice are asking the high court to overturn the decision. A negative outcome could force the tribe to go through the lengthy land-into-trust process all over again. The petitions in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak were granted by the court in an order list today. A date for oral arguments hasn’t been set. DC Circuit Decision: Patchak v. Salazar (January 21, 2011). From Indianz.com.
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Two Indian Domestic Violence Cases before Supreme Court
December 11, 2011 (Washington, DC) — The U.S. Supreme Court is being asked to hear two Indian Country domestic violence cases. In the first case, Roman Cavanaugh Jr., a member of the Spirit Lake Dakotah Nation in North Dakota, pleaded guilty to two felony child abuse charges. He admitted that he used a closed fist to strike his 11-year-old and 12-year-old sons in their faces in December 2010. Cavanaugh was charged as a “habitual” domestic offender 18 U.S.C. § 117. due to prior tribal court convictions. In July, the 8th Circuit Court of Appeals ruled that federal prosecutors can use the tribal cases even though he was never provided with an attorney.
Cavanaugh filed his petition for certiorari on November 10, according to the docket sheet for No. 11-7379. The Department of Justice has been granted an extension to respond by January 12, 2012. The second case addresses the same issue. Adam Ray Shavanaux, member of the Ute Tribe of Utah, was also charged as a “habitual” domestic violence offender due to prior tribal court cases, during which he wasn’t provided with an attorney. Shavanaux filed his petition on December 7, according to the docket sheet for No. 11-7731. A response from the Department of Justice is due January 09, 2012.From Indianz.com. Get the Story: Court rulings could give prosecutors more power to go after abusers on Indian reservations.
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Judge Approves $3.4B Cobell Settlement
From the Blog of Legal Times
A federal judge in Washington on Monday evening approved a landmark $3.4 billion settlement in a Native American class action that stands to compensate hundreds of thousands of American Indians.
Senior Judge Thomas Hogan’s approval of the deal, reached in late 2009 in Washington federal district court, caps more than 15 years of hostile litigation that featured numerous appeals, trials and failed negotiations. Hogan called the deal “truly historic.”
The case, named after lead plaintiff Elouise Cobell, sought a historical accounting of trust accounts the government mismanaged for more than a century. Class members will receive a minimum payment of $1,000, Hogan said today at the end of a hearing that lasted more than seven hours.
“The judge’s finding that the settlement is fair and reasonable is a major milestone in the Administration’s effort to reach a resolution of litigation that has cast a cloud over the government’s relationship with American Indians,” Associate Attorney General Thomas Perrelli, who twice testified before Congress on the settlement, said in a prepared statement.
About a dozen people objected to the settlement today in court, arguing, among other things, that the plaintiffs’ lawyers demand for compensation–$224 million—was excessive. Justice Department attorneys said the bulk of the objection to the settlement was over fees. There were 92 objections in all. More than 1,000 people have opted out of the settlement.
The plaintiffs’ team, led by Washington solo practitioner Dennis Gingold and a group of Kilpatrick Townsend & Stockton lawyers, said they received an overall favorable response to the settlement during dozens of meetings in recent months in Indian Country. Kilpatrick chairman William Dorris, who participated in the case, said in court today he expected the settlement to provide a “beacon of hope” for American Indians.
At the end of the hearing, Hogan awarded $99 million in legal fees for the plaintiffs’ lawyers. The settlement set compensation between $50 million and $99.9 million. But the deal gave the judge the final say on a reasonable amount in accordance with controlling law.
The Justice Department had urged Hogan to award no more than $50 million in compensation. Gingold in court today asked Hogan to award more than $99.9 million. Cobell’s lawyers argued in recent court papers that there was never a cap on fees. The attorneys argued for a higher amount in order to compensate for the outcome and complexity of the case.
The settlement includes $1.9 billion for a land consolidation program. The Interior Department has begun scheduling consultation meetings with tribal leaders to begin discussion of that part of the agreement.
“Judge Hogan’s decision is another milestone in empowerment and reconciliation for the American Indians,” Interior Secretary Ken Salazar said in a statement Monday evening. Salazar said the agreement “turns the page on an unfortunate chapter” in the department’s history.
President Barack Obama issued a statement Monday evening praising the Hogan’s approval of the settlement.
“After fifteen years of litigation, today’s decision marks another important step forward in the relationship between the federal government and Indian Country,” Obama said. “Resolving this dispute was a priority for my Administration, and we will engage in government-to-government consultations with tribal nations regarding the land consolidation component of the settlement to ensure that this moves ahead at an appropriate pace and in an appropriate manner.”
Settlement Helpline: 1-800-961-6109
Settlement Website: www.indiantrust.com
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Supreme Court grants government’s cert petition in United States v. Jicarilla Apache Nation.
United States v. Jicarilla Apache Nation (Docket 10-382)
Issue: Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.
- Opinion below (Federal Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioner’s reply
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Supreme Court accepts Apache man’s restitution case
(January 13, 2010) The U.S. Supreme Court has agreed to hear a restitution case involving a member of Mescalero Apache Nation of New Mexico. Brian Russell Dolan pleaded guilty to a violent attack on the reservation. He was sentenced to prison time and parole but restitution wasn’t determined by a federal judge until months later. Dolan says the Mandatory Victims Restitution Act requires a judge to act within 90 days.
The 10th Circuit Court of Appeals did not agree but the Supreme Court will review the decision. The case is Dolan v. US, No. 09-367. 10th Circuit Decision: Dolan v. US (June 26, 2009) Get the Story: High Court to Consider Restitution Deadline [see last item] (Courthouse News Service 1/13)
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