Intentional Indian Cases

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The Key to our Salvation as American Indigenous people is Equity

 Mashapaug Nahaganset Tribe Files Lawsuit Charging R.I. and U.S. Governments with Environmental Racism

By SAM LIN-SOMMER/ecoRI News contributor

The tribe has accused the governments of violations of tenets of Rhode Island, U.S. and international law in a case that outlines a long history of land seizures and discrimination.

The tribe has accused the governments of violations of tenets of Rhode Island, U.S. and international law in a case that outlines a long history of land seizures and discrimination.

After centuries of marginalization by the Rhode Island and U.S. governments, one American Aborigine tribe has decided to look outside of state courts for legal reparations. On June 20, leaders of the Mashapaug Nahaganset tribe filed tort claims against the state of Rhode Island, the city of Providence and the city of Cranston in international court.

The Mashapaug Nahaganset tribe has sued those three governments for environmental racism in the District Court of the United States in Washington, D.C., one of three federal courts in which foreign nationals can file claims against the U.S. government. The tribe has accused the governments of violations of tenets of Rhode Island, U.S. and international law in a case that outlines a long history of land seizures, discrimination and environmental racism. With these claims, leaders of the tribe hope to bring governing bodies to the bargaining table after years of neglect.

The lawsuit is part of a group of parallel suits filed Jan. 7 by members of the Federation of Aboriginal Nations of America (FANA). In a motion of solidarity, the tribes filed four suits total against the states of Rhode Island, New Jersey, Massachusetts and Pennsylvania. The suits call for reparations from the respective states for centuries of genocide, slavery and environmental racism.

The Sustainable Development Agenda, or Agenda 21, of the United Nations set a Dec. 31, 2014 deadline after which indigenous tribes can’t claim debts from other nations. However, the tort against the U.S. government was filed before that deadline, creating an avenue for the tribes to file claims.

Rightful inhabitants
The Mashapaug Nahaganset tribe is made up mostly of people living in urban areas in and around Providence who have made conscious decisions to reconnect with their heritage. The tribe re-formalized in 2009, and now counts about 100 people as members.

Members of the Mashapaug Nahaganset tribe trace their heritage to the area around the village that once thrived around Providence’s Mashapaug Pond. The land known as “Mashapaug” that the tribe once occupied extends throughout parts of Providence and Cranston.

The Mashapaug Nahaganset tribe is legally and geographically separate from the larger, federally recognized tribe called the “Narragansett” that has a reservation in southern Rhode Island.

Federally recognized tribes, such as the Narragansett, have to forfeit some sovereignty rights to the U.S. government and their land is kept in a trust managed by the Bureau of Indian Affairs. In return, they gain protection and funding from the U.S. government that sovereign nations such as the Mashapaug Nahaganset don’t enjoy.

The Narragansett Indian Tribe of Rhode Island disavows any claims made in the Mashapaug Nahaganset’s lawsuit, according to tribal medicine man John Brown. He said the group has no legal standing to make such claims.

“We don’t know who they are,” Brown said.

Mashapaug Nahaganset isn’t recognized by the United Nations as a sovereign nation, but FANA has registered with the United Nations as an Indigenous People’s Organization and Mashapaug is a charter nation of FANA. However, this doesn’t denote any official status or relationship with the United Nations.

The alien tort statute claim sues the state of Rhode Island and the cities of Cranston and Providence. The cities sit on land that the tribe once occupied.

Before the arrival of Europeans on New England’s shores, the Narragansett had lived in Mashapaug for some 10,000 years. Subsequently, Europeans bought and seized Mashapaug land until Narragansett-controlled Mashapaug ceased to exist.

The most brutal moment in this progression of land loss occurred from 1675 to 1676 during King Philip’s War, considered by many to be the bloodiest war per capita ever fought on U.S. soil. In what amounted to a massacre, much of the Mashapaug Nahaganset population was slaughtered by the colonists, although some survived and continued to live in the area.

Some Mashapaug Nahaganset continued to live in West Elmwood, a neighborhood on Mashapaug Pond that was one of the first racially integrated neighborhoods in Providence. In the 1960s, the city, in one of many forced removals of communities of color in the name of “urban renewal,” declared West Elmwood a blighted neighborhood and forcibly removed its residents to build Huntington Industrial Park and Route 10.

Former residents of West Elmwood have said that the neighborhood wasn’t blighted, describing it instead as a tight-knit, working-class community in a bountiful rural landscape on the city’s edge.

Sacred land
In 2015, according to the U.S. Census, “American Indian and Alaskan Native” made up just 1 percent of Rhode Island’s population.

Quenikun Pau Paukunawaw, the intergovernmental liaison for the Mashapaug Nahaganset tribe and one of the leaders in the filing of the lawsuit, puts the legacy of colonialism in southern New England simply: “They killed off 95 percent of the native population, then they tried to absorb us into their society and their government.”

Since taking the Mashapaug Nahaganset’s land, the tribe argues that the government has mismanaged it, making it impossible for the tribe to use either public lands or the private lands that they might reclaim.

Mashapaug Pond, Providence’s largest body of water, forms the center of Mashapaug. The Mashapaug Nahagansett consider it a sacred site. The pond is now polluted to the point at which its water is undrinkable and unswimmable, and its fish inedible.

The pond borders the former site of the Gorham silver manufacturing plant, which left behind toxic metals in the pond’s waters and sediment. Alvarez High School was built above the property’s toxic remains, prompting frustration from concerned parents and residents about students’ health.

The tribe still holds ceremonies in the few public green spaces around the pond, but hopes to regain rights to the land — in the form of tax revenue and land repatriation, but isn’t looking to forcibly remove any current residents — and for the pond to be cleaned up.

Paukunawaw said many of the nature-oriented activities that are central to Nahaganset culture are impossible, because of the state’s mismanagement of the land.

“If I wanted to be an American Indian today, I could say I want to quit my job, hunt these animals, fish these rivers … (but) there’s no way I could do that,” he said. “There’s no land that hasn’t been polluted, there’s no river that hasn’t been polluted. If I wanted to go back to my land and live a traditional lifestyle, it’s not possible.”

Landmark case
In the tort case, the Mashapaug Nahaganset tribe accuses the governments of Rhode Island, Providence and Cranston of violating multiple cases of international, state and federal law. The suit argues that the long history of genocide, land seizures and other injustices against the Mashapaug Nahaganset constitute violations of jus cogens, the core principles of international law.

The Mashapaug Nahaganset claim that the government has taken its lands without compensation, constituting a civil-rights violation under U.S. law and a violation of Article 1 Section 16 of the Rhode Island Constitution, titled “Compensation for taking of private property for public use.”

The case also claims that state and local governments have violated the tenants of the United Nations’ 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The tribe argues that state and local governments have, throughout a history of systemic racism, “permanently and substantially” violated their rights to life, food, water and health, along with the enjoyment of indigenous lands.

The case cites the 1973 Apartheid Convention, claiming that the injustices against the tribe amount to acts of apartheid. Specifically, the Mashapaug Naraganset argue that government has oppressed them by racially segregating them, taking their land to enrich a specific racial class and, in turn, forcing them to work for people on land that was originally theirs.

Lastly, the case claims that the government’s taking and mismanagement of ancestral lands constitutes environmental racism. Paukunawaw estimated that state and local governments owe the tribe about $200 million.

The Mashapaug Nahaganset tribe’s goal isn’t to bankrupt state and city governments. Paukunawaw said the hope is to push government toward settling out of court.

“If we can settle this outside of a court in an amicable way, then we would do that,” he said. “If we can’t, that’s what the lawsuit is for.”

In addition to forcing settlements, the Mashapaug Nahaganset hope to win a symbolic victory, showing both Rhode Island and people worldwide that indigenous people can and will take legal action to secure their rights.

In 2007, the United Nations adopted a Declaration on the Rights of Indigenous Peoples that established government standards regarding the treatment of indigenous peoples. Since then, indigenous people have begun to mobilize for their rights in international court. Last February, for example, two western First Nations, the Onion Lake Cree and Poundmaker Cree, sued the Canadian government for $3 billion for the mishandling of their oil resources.

If this tort claim goes to court, Paukunawaw said it will be a “landmark case.”

“No one has really sued a country for their land back yet,” he said. “But it is something that has been discussed by multiple indigenous peoples around the world. We would be the first who would actually have a case heard on the international level.”

The Mashapaug Nahaganset also hope that this case can bring international recognition for Native Americans on the East Coast. In popular culture, Paukunawaw said, Native Americans tend to be confined to history books, invisible in contemporary American media, politics and culture.

Neesu Wushuwunoag, the Mashapaug Nahaganset’s pomham sachem, or principle chief, said it’s time the U.S. government acknowledges the people whose land it sits on.

“The Mashapaug were instrumental in the founding of Providence,” he said. “For those people to not be acknowledged or enjoy their land is an insult. … We’re trying to be respectful and amicable, but our patience is growing thin.”

ecoRI News staffer Frank Carini contributed to this report.



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VOLUME VI pp. 173-190


Copyright (c) 2006 Number of claim



(]anua~v 22. 1926. Pages 307-331.)

TREATY (CONTRACT) WITH INDIAN TRIBE.-SUBJECTS OF INTERNATIONAL LAW. -LEGAL STATUS, PROTECTING POWER, NATIONALITY, MIGRATION OF INDIAN TRIBE.-RIGHT OF PROTECTING POWER TO SUE. Removal in 1784 of considerable portion of Cayuga Nation, a tribe of the Six Nations, from Buffalo Creek, New York, to Grand River, Canada. Conclusion in 1789, 1790, and 1795 of treaties between New York State and Cayuga Nation: cession of lands to New York State against annuity of $1,800 forever to the Nation to be paid at Canandaigua, Ontario County, Canada. Payment of alilluity to Cayugas living in Canada until 1810, and from then on to Cayugas living in United Stales. War of 1812 (War of Independence), in which Cayugas in United States and those in Canada took part on side of United States and of Great Britain. respectively. Conclusion in 1814 of Treaty of Ghent between United States and Great Britain obliging United States to restore to Indians with whom it had been at war “all the possessions, rights, and privileges which they may have enjoyed or been entitled to” in 1811 before war (article IX). Presentation of claim before Tribunal for: (I) whole amount of annuity from 1810 to the present; or (2), alternatively, for proportion of….

Here is a list of Tribal Cases vs the United States

 1912Heckman v. United States, 224 U.S. 413 (1912) (holding that the United States can invoke the Court’s equity jurisdiction to revoke conveyances by Indian allottees where conveyances violated trust restrictions). 
 1942Seminole Nation v. United States, 316 U.S. 286 (1942) (finding a breach of the Government’s fiduciary trust obligation where the Government disbursed monies to the tribal government, instead of to individuals, knowing that the tribal government was “without integrity”).
 1943Creek Nation v. United States, 318 U.S. 629 (1943). The Creek Nation and the Seminole Nation brought an action against the United States contending that the Secretary was obligated to bring suit for all damages suffered by the Tribes for failure of railroads to pay sums owing under a 1902 Act for trespass and mileage taxes, for any breach of the treaty, and for rents and profits collected by the railroads. The Secretary was deemed not an insurer against loss to the Tribes. The Supreme Court noted the Tribes could have brought their own suits, and broad discretion is accorded the Secretary in any matter in which it chooses to institute litigation on behalf of a tribe. The Court held that the government’s failure to bring a trespass suit against the railroads did not constitute a breach of trust.
 1955Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). Aboriginal title (which arises from a tribe’s actual, continuous and exclusive use and occupancy of a defined land area from “time immemorial”), when extinguished by the Federal Government, is not a compensable property right under the Fifth Amendment.  Because there was no recognized title (no Congressional recognition of the plaintiff Indians’ right of permanent use and occupancy to the land at issue), the Court decided there was no right to compensation under the Fifth Amendment.
 1963Sioux Tribe of Indians v. United States, 12 Ind. Cl. Comm. 541 (1963) (the Indian Claims Commission established procedures for litigating accounting claims.).
 1966Klamath and Modoc Tribes v. United States, 174 Ct. Cl. 483 (1966). The Court of Claims held that it did not have jurisdiction to order the government to provide a “general accounting” of tribal trust funds or other trust property, unlike the Indian Claims Commission.  Rather, it could order the preparation of an accounting only as an “aid to judgment” to assist it in determining the amount of damages after it had found the government liable on a particular tribal claim.
 1968Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F. 2d 686 (1968). The Court devised the “substitution of assets” test for determining whether the government had committed a Fifth Amendment taking of tribal property – – namely, whether the Congress had made “a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money” in which case “there is no taking.”
 1968Peoria Tribe of Indians of Oklahoma v. United States, 390 U. S. 468 (1968) (holding that under the Indian Claims Commission Act (“ICCA”) a Tribe could recover interest on amounts which should have been collected for the sale of tribal lands ceded in trust to be sold for the Tribe’s benefit, but had not been collected, were never in existence, and had not been deposited in the U.S. Treasury to the credit of the plaintiff Tribe and invested as required by the governing treaty).  
 1972Gila River Pima-Maricopa Indian Community v. United States, 199 Ct. Cl. 586, 467 F.2d 1351 (1972) (holding that the proper measure of damages for the breach of lease where the government had not restored land to its original condition following the destruction of the Japanese American detention camp facilities on the Gila River reservation, was the diminution in the fair market value of these particular lands – not the cost of restoration advocated by the Tribe). 
 1973Blackfeet Tribe of the Fort Belknap Indian Reservation v. United States, 32 Ind. Cl. Comm. 65 (1973),reh’g denied, 34 Ind. Cl. Comm. 122 (1974).  This decision established the required parameters/scope of a “supplemental accounting.”
 1975United States v. Pueblo of San Ildefenso, 206 Ct. Cl. 649, 513 F.2d 1383 (1975) (holding that three Pueblos with a common culture and language and a long history of amicable relations could hold “joint aboriginal title” to a defined land area).
 1975United States v. Mescalero Apache Tribe, 207 Ct. Cl. 369, 518 F. 2d 1309 (1975), cert. denied, 425 U.S. 911 (1976) (holding that no contract, treaty or agreement obligated the United States to pay interest on tribal Indian Money, [not] Proceeds of Labor (“IMPL”) funds during the period from 1883 to 1930, that the United States had not waived its sovereign immunity to suit for the recovery of interest on tribal IMPL funds, and that the ICCA did not authorize the payment of interest on these funds during the 1883-1930 period). 
 1975Cheyenne-Arapaho Tribes of Indians of Oklahoma v. United States, 206 Ct. Cl. 340, 512 F.2d 1390 (1975) (holding the statutory requirement that 4% simple interest be paid on tribal trust funds held in the Treasury represented “a floor rather than a ceiling” and that the Department of the Interior has a duty to maximize the return from its investment of tribal trust funds under the 1938 statute authorizing the Secretary to invest tribal trust funds, the original version of which was enacted in 1918).
 1978Navajo Tribe of Indians v. United States, 218 Ct. Cl. 11, 586 F. 2d 192 (1978), cert. denied, 441 U.S. 944 (1979) (holding a “continuing wrong” for purposes of the Acontinuing wrongs” doctrine is “a wrongful course of governmental conduct [which] began before August 13, 1946 and continued thereafter,” thus allowing the Claims Court to award damages for the period of time after August 13, 1946 during which the wrong continued).
 1979Menominee Tribe of Indians v.  United States, 221 Ct. Cl. 506, 607 F.2d 1335 (1979) (holding that the Tribe’s claim that the statute terminating the Tribe was itself a breach of trust was beyond the scope of the court’s Indian Tucker Act and Tucker Act jurisdiction).
 1980United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (holding that Congress did not attempt to give the Sioux the full 1877 value of the Black Hills area of the Great Sioux Reservation established by treaty in 1868 and the Tribe was owed just compensation for the taking).
 1980United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I) (holding that Congress had not created a money-mandating trust duty in the General Allotment Act and thus, the United States was not required to pay money damages for any mismanagement of the commercial timber on the reservation). 
 1982Gila River Pima-Maricopa Indian Community v. United States, 231 Ct. Cl. 193, 684 F.2d 852 (1982). The Tribe argued that the government had breached the “fair and honorable dealings” clause of the ICCA by failing to stop non-Indian upstream diversions of Gila River water beginning in 1868.  The Court held that the government had a duty to take legal action to stop these diversions, or, in the alternative, provide the Tribe with an alternate supply of water, but held plaintiff was entitled to only the amount of water needed to irrigate the acreage the Tribe had historically irrigated before the diversions began.  The Court rejected plaintiff’s argument that damages be measured by the amount of water necessary to irrigate all the “practicably irrigable” acreage on the reservation.
 1983United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II) (holding that even though the statute at issue did not explicitly grant a money damages remedy, the timber statutes and regulations evidenced comprehensive control and management by the government of the trust resource, such that the a fair interpretation of the statutes and regulations mandated compensation for their breach).     
 1983Nevada v. United States, 463 U.S. 110 (1983) (holding that the government’s simultaneous representation in a general stream adjudication of an Indian tribe and the non-Indians served by irrigation facilities constructed by the Bureau of Reclamation did not give rise to a breach of trust, because when Congress imposes on the government competing obligations to different groups, the “fastidious standards” of a private trustee do not apply to the government).
 1985United States v. Dann, 470 U. S. 39 (1985) (holding that a full discharge of the United States of all claims and demands for purposes of the ICCA occurs when the monies appropriated by Congress to pay a final judgment in favor of a plaintiff tribe are deposited in a special account in the Treasury to the credit of the tribe).
 1985Navajo Tribe of Indians v. United States, 9 Cl. Ct. 227 (1985), appeal dism’d (Fed. Cir. 1987). The Court rejected multiple “fair and honorable dealings” claims concerning the BIA’s alleged mismanagement of the Tribe’s mineral resources which was the first opinion on resource mismanagement claims filed under the ICCA.  This decision has provided guidance on tribal claims for mismanagement of natural resources filed under the Indian Tucker Act.
 1986Navajo Tribe of Indians v. United States, 9 Cl. Ct. 336 (1986), appeal dism’d (Fed. Cir. 1987).  The Court rejected multiple “fair and honorable dealings” claims concerning alleged mismanagement of the Tribe’s timber resources; this was the second significant opinion on resource mismanagement claims filed under the ICCA. The Court held that the standard of care owed by the government in managing timber resources was that of an “ordinary prudent man” operating under the same social, economic and technological restraints under which BIA had operated during the time at issue. This opinion has also offered guidance in Indian Tucker Act cases.
 1987United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987).  The Court held that the United States’ navigational servitude precluded liability on the Tribe’s claim that the McClellan-Kerr Project (construction of a navigable channel in the Arkansas Riverbed) effected a Fifth Amendment taking of the Tribe’s mineral interests in the Riverbed.
 1987Navajo Tribe of Indians v. State of New Mexico, 809 F.2d 1455, 1460-68 (10th Cir. 1987). The Tenth Circuit held that the district court lacked jurisdiction over the Tribe’s claim that it was entitled to a declaratory judgment that land added to the Reservation in 1909 by Executive Order and returned to the public domain by Executive Order a few years later because this claim arose prior to August 13, 1946 and should have been brought under the ICCA.  The Circuit held that the ICCA was the “exclusive remedy” for tribal claims against the United States which arose prior to August 13, 1946.
 1987White Mountain Apache Tribe of Arizona v. United States, 11 Cl Ct. 614 (1987), aff’d, 5 F. 3d 1506 (Fed Cir. 1993), cert. denied, 511 U.S. 1030 (1994). This was the third decision on tribal resource mismanagement claims adjudicated under the ICCA.  The Court narrowly construed the doctrine of “continuing wrongs.”
 1987Hodel v. Irving, 481 U.S. 704 (1987) (finding a fifth amendment taking without compensation where congress, in an attempt to resolve fractionated land holdings, ordered the escheat of fractional interests in real property). 
 1988Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (holding that even though timber harvesting would have severe adverse effects on the Indians’ practice of their religion, those effects were only incidental and did not constitute an attempt to coerce Native Americans to act in violation of their beliefs. The Court reasoned that government could not operate “if it were required to satisfy every citizen’s religious needs and desires,” and that the First Amendment did not give any one group veto power over public programs that did not actually prohibit the free exercise of religion).
 1991Cherokee Nation of Oklahoma v. United States, 948 F.2d 635 (10th Cir. 1991). The Court rejected the Tribe’s “fair and honorable dealings” claim concerning damage to its Arkansas Riverbed mineral interests allegedly caused by the McClellan-Kerr Project. It held that the Tribe had not proven the existence of the requisite “special relationship” (for a “fair and honorable dealings” claim) or shown that in any Cherokee treaty with the United States had agreed to forego the exercise of its navigational servitude or restrict its use of the servitude.  
 1991Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564 (Fed. Cir. 1991), cert. denied, 501 U.S. 904 (1993) (holding that the six-year statute of limitations barred an argument that the government had to recover the tribal lands ceded to South Carolina in 1840 in violation of the Non-Intercourse Act, because the claim accrued in 1962 when the Catawba termination act had been enacted – not when the Supreme Court issued its 1986 Catawba opinion).
 1992Confederated Tribes of the Colville Reservation v. United States, 964 F. 2d 1102 (Fed. Cir. 1992).  Plaintiff sought to recover damages for the water power values of tribal lands taken by the construction of the Grand Coulee Dam under the “fair and honorable dealings” clause of the ICCA.  The Court rejected the government’s argument that the navigational servitude was a bar to the claim and concluded that the government can still be held liable under “fair and honorable” dealings if its treatment of a plaintiff Indian tribe has been “less than fair or honorable.”
 1992White Mountain Apache Tribe of Arizona v. United States, 26 Cl. Ct. 446 (1992).  The Court established a test for the propriety of disbursements of tribal IMPL funds and a test for the propriety of expenditures of Tribal IIM funds (tribal funds held in local depositories).  Since the government had not been able to furnish copies of the cancelled checks underlying the $6.2 million of Tribal IIM disbursements at issue, the Court awarded the entire $6.2 million to the Tribe on its claim of improper Tribal IIM disbursements.
 1994Apache Survival Coalition v. United States, 21 F.3d 895 (9th Cir. 1994).  This case involved a challenge under the National Historic Preservation Act (“NHPA”) to the Forest Service’s issuance of a special use permit associated with the building of a telescope atop Mt. Graham. The United States prevailed and was found to have gone to lengths above and beyond what was required for consultation under the NHPA.
 1995Na Iwi O Na Kupuna O Mokapu (Na Iwi) v. Dalton, 897 F. Supp. 1397 (D. Hawaii 1995).  Native Hawaiian group sued Secretary of the Navy under Native American Graves Protection and Repatriation Act (“NAGPRA”) seeking, inter alia, to prevent certain scientific procedures from being used in the inventory that the Bishop Museum was conducting to fulfill the Navy’s obligations under NAGPRA to conduct an inventory of remains recovered from the Marine Corps Base at Kaneohe Bay, Hawaii.  The Court held that the examination of the remains performed for purpose of accurately identifying cultural affiliation or ethnicity, which included viewing and measuring remains, is permissible under NAGPRA, did not constitute additional research or new studies and the results may be disclosed.
 1995Short v. United States, 50 F.3d 994 (Fed. Cir. 1995).  Plaintiffs, Yurok Indians residing on the Hoopa Valley Reservation, sued to recover wrongful distributions of revenues from the management of the Reservation’s commercial timber made to the members of the Hoopa Valley Tribe.  The Federal Circuit upheld the trial court’s award of the amount of each wrongful annual  disbursement and interest thereon from the date of disbursement to the day of final judgment.  The Circuit agreed with the government’s argument that no statute existed which authorized the award of pre-judgment interest, but held that 25 U.S.C. §§ 161a, 161b and 162a authorized the “award of interest as part of the plaintiffs’ damages.”
 1995Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) (holding the United States has discretion (and is not in breach of trust) to not bring a water rights claim on behalf of one tribe, while at the same time deciding to prosecute a water rights claim on behalf of another tribe).
 1997Bonnichsen v. United States Corps of Engineers, 969 F. Supp. 628 (D. Or. 1997).  This case was brought by eight scientists to demand custody and control of 9,300 year-old human remains as a matter of right. The Corps determined that the remains were those of a Native American and that the Native American Graves Protection and Repatriation Act applied. The Corps began the procedures for determining disposition under NAGPRA. Tribal claimants sought, but were denied intervention in the lawsuit. Ultimately, the Court ruled that the scientists were allowed to study the human remains.
 2003United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) (The Tribe sued for money damages for the government’s failure to maintain and preserve historical buildings located upon lands put in trust for the Tribe in 1960 by Congress.  The statute allowed the BIA to use these buildings for school and administrative purposes for as long as necessary and the BIA was still using many of them at the time of suit.  The United States moved to dismiss on Mitchell II grounds because the 1960 statute said nothing about a duty to preserve and maintain these buildings.  The Supreme Court held that because the government was using the  trust property, the duty to preserve these buildings could be fairly inferred from the United States’ status as trustee and it relied upon the common law of trusts in support.  The Court also stressed that the government’s exclusive control over the buildings it was using also supported the existence of this duty, consistent with Mitchell II.
 2003United States v. Navajo Nation, 537 U.S. 488 (2003).  The Tribe argued that the Secretary had breached his trust duty to ensure a higher rate of return for the Tribe when, in the process of approving an amendment to a coal lease between the Tribe and Peabody Coal Co., the Secretary had not imposed a royalty rate higher than the 12.5% proposed by the lessee.  The Court held that neither the Indian Mineral Leasing Act (“IMLA”) nor the implementing regulations (nor 25 U.S.C. § 399 nor the Indian Mineral Development Act, 25 U.S.C. §§ 2101, et seq.) contained any provision which “can fairly be interpreted as mandating money damages” for the breach of the alleged trust duty.
 2004Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339 (Fed. Cir. 2004), cert. denied, 544 U.S. 973 (2005).  Beginning in Fiscal Year 1990, all appropriations acts for the Department of the Interior have contained a provision that the statute of limitations on claims concerning the management of Indian trust funds shall not begin to run until the government has furnished the owner of the funds with an accounting of such funds.  The Federal Circuit ruled that this tolling of the statute of limitations provision applied only to claims for the mismanagement of trust funds – – not to claims for mismanagement of non-monetary trust assets such as land or natural resources.  This ruling preserves our statute of limitations defense on claims for mismanagement of Indian lands and natural resources held in trust which are raised in nearly all of the pending tribal trust suits.  The second part of the decision holds, in effect, that a tribe can recover interest upon the award of damages for a resource mismanagement claim but characterizes interest as part of the overall damages.
 2009United States v. Navajo Nation, 129 S.Ct. 1547 (2009).  In the Navajo case remanded by the Supreme Court in 2003, the Federal Circuit held that it could be fairly inferred from “a network of statutes and regulations” that the claim the Secretary had committed a breach of trust by failing to ensure a higher rate of return (under the coal lease) at issue was money- mandating.  The Supreme Court reversed, holding that the finding of a money-mandating duty may not be premised upon the government’s comprehensive control over the particular Indian trust property alone.  Instead, a specific duty or rights-creating statute or regulation must be identified for there to be a money-mandating claim.  Unless the Indian plaintiff has identified such a statute or regulation, “neither the Government’s ‘control’ over [the trust property] or common law trust principles matter.”  Thus, the Court greatly narrowed the reach of its 2003 White Mountain Apache opinion.
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