case no. 11-5049 united states court of appeals …case no. 1:10-cv-00968-gk, judge gladys kessler...
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Case No. 11-5049___________________________________________________________
UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT
___________________________________________________________
TIMBISHA SHOSHONE TRIBE, et al.,
Appellants,
v.
KENNETH LEE SALAZAR, Secretary of Interior, et al.,
Appellees.____________________________________________________________
On Appeal from the United States District Court for the District of Columbia
Case No. 1:10-cv-00968-GK, Judge Gladys Kessler____________________________________________________________
REPLY BRIEF OF APPELLANTS____________________________________________________________
COUNSEL FOR APPELLANTS
Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959
Robert T. CoulterPhilomena KebecIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
SUMMARY OF REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Taking Cause of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Government’s Taking Concession. . . . . . . . . . . . . . . . . . . . . . . 3
B. The Government’s “Plenary Power” and “Retained Authority”Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. Classifications Harming Indian Tribes Must be Given Strict Scrutiny. . . . . 14
III. Plaintiffs-Appellants have authority to maintain this suit. . . . . . . . . . . . . . . 22
IV. The Preliminary Injunction Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. The District Court Erred in Finding Plaintiffs-Appellants are notLikely to Establish Their Authority to Sue.. . . . . . . . . . . . . . . . . . . 27
B. There is No Available Damages Remedy. . .. . . . . . . . . . . . . . . . . . 21
CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
STATUTORY ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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TABLE OF AUTHORITIESCases
Absentee Delaware Tribe of Oklahoma and The Delaware Tribe of Indians v.United States,21 Ind. Cl. Comm. 344 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6
*Adarand Constructors v. Pena, 515 U.S. 200 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21
Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F. 3d 8 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Askew v. Trs. of the Gen. Assembly of the Church of the Lord Jesus Christ of theApostolic Faith, 644 F. Supp. 2d 584 (E.D. Pa. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
*Babbitt v. Youpee, 519 U.S. 234 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 24
*Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
*Choate v. Trapp, 224 U.S. 665 (1912). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
*Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
* Authorities upon which we chiefly rely are marked with asterisks.
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Columbian Rope Co. v. West, 142 F.3d 1313 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) . . . . . . . . . . . . . . . . . . . . . 12
*Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-8, 15-21
*Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
*Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
*Hodel v. Irving, 481 U.S. 704 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
*Jones v. Meehan, 175 U.S. 1 (1899). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Karcher v. May, 484 U.S. 72 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Kincaid v. Rusk, 670 F.2d 737 (7 Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 26
Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct. Cl. 1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 , 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) . . . . . . . . . . . . . . . . . . . . . 12
Morton v. Mancari, 417 U.S. 535 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Motor & Equip. Mfrs. Ass’n. v. Nichols, 142 F.3d 449 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 n. 8 (D.C. Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Narragansett Indian Tribe v. Nat’l Indian Gaming Comm., 158 F.3d 1335 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
O’Neal v. Cowles Magazines, 225 F.2d 43 (D.C. Cir. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pueblo of Sandia v. Babbitt, 231 F.3d 878 (D.C. Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139 (D.C. Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Schering Corp. v. Shalala, 995 F.2d 1103 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
*Student Loan Mktg. Ass’n., v. Riley, 104 F.3d 397 (D.C. Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Syracuse Broadcasting Corp. v. Newhouse, 14 F.R.D. 168 (N.D.N.Y. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
U.S. Air Tour Ass’n v. FAA, 298 F.3d 997 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
*United States v. Creek Nation, 295 U.S. 103 (1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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*United States v. Dann, 470 U.S. 39 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
*United States v. General Motors Corp., 323 U.S. 373 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
*United States v. Sioux Nation, 448 U.S. 371 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Western Shoshone Identifiable Group v. United States, No. 1:06-cv-00896-EJD, slip opinion (Fed. Cl. Nov. 24, 2009)(reprinted in Addendum II of Brief ofAppellants).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Wright v. R.&L. Mkt., 9 F.R.D. 559 (1949).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Statutes
Western Shoshone Claims Distribution Act, Pub. L. No. 108-270,118 Stat. 805 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 17
25 U.S.C.A. §70u(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25 U.S.C.A. §§ 1291, 1292 (2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Rules
Fed. R. App. P. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Fed. R. App. P. 43(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Fed. R. App. P. 43(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Fed. R. Civ. P. 25(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Fed. R. Civ. P. 8(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Other Authorities
From the Record in Delaware Tribal Bus. Comm. v. Weeks,430 U.S. 73 (1977):
Brief for the Delaware Tribal Business Committee, et al., 1976 WL 181618.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Reply Brief for the Delaware Tribal Business Committee, et al, 1976 WL 181623.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brief for the Secretary of the Interior, 1976 WL 194271.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Reply Memorandum for the Appellants, 1976 WL 194272.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brief for Appellants Opposing Motion to Dismiss, 1976 WL 194377.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brief for Appellees, 1976 WL 194378.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brief for the Absentee Delaware Tribe Business Committee, 1976 WL 194387.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Reply Brief for the Absentee Delaware Tribe Business Committee, 1976 WL 194388.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Jurisdictional Statement of the Solicitor General of the United States, 1976 WL 194437.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SUMMARY OF REPLY
Defendants-Appellants’ Brief asserts, as the government has throughout this
case and in Indian cases generally, essentially unlimited governmental power over
Indian rights and property. But the arguments it presents are most significant not
for any reasoning or authority offered to support its positions – because there is
little to none – but for the concessions made on both of the major issues.
On the taking cause of action, the government makes the extremely
formalistic argument that the group of tribes specifically named in the Act, the
Western Shoshone Identifiable Group, has a vested interest in the award and could
claim a taking, but the Timbisha Shoshone Tribe does not, although it is one of the
tribes making up the Identifiable Group. The government offers no argument or
authority for this form-over-substance position, and in the process concedes the
taking issue.
The government also argues that the Tribe has no vested interest in the
judgment award because Congress “retained” authority to decide on a case by case
basis whether successful claimant tribes should receive any part of the awards
made to them by the Indian Claims Commission (Claims Commission). But the
Supreme Court has already decided this very issue to the contrary, and the
legislative history on this point is very strong against the government’s position.
On the equal protection claim, the government abandons the district court’s
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principal basis and reasoning for refusing to apply strict scrutiny – Indian
classifications are “non-suspect” – and offers an unconvincing substitute.
These arguments, that amount to concessions on the major issues, are
accompanied by the government’s heavy reliance on the Interior Department’s
recent decision giving temporary recognition to a faction of the Tribe whose leader
and many of whose members do not meet the qualifications for membership in the
Tribe set out in the Tribe’s Constitution. Nevertheless, the government argues that
solely because of the Interior Department’s decision, Plaintiffs-Appellants do not
have authority to maintain this suit and that the case is somehow moot. The only
facts before the district court on this issue were in a sworn statement presented by
Plaintiffs-Appellants that supported and attested to their authority to bring this
suit. In any event, the Interior Department’s temporary recognition of an opposing
faction does not deprive the Plaintiffs-Appellants of their authority to maintain
this suit, and the factual issues raised by this argument are not properly before the
Court in this appeal.
This case is about a straight-forward taking of property by Congress without
compensation. The case would present no difficulty but for the fact that the
property (the judgment award) belongs to Indian tribes and but for the argument
that Congress has “plenary power” – essentially extra-constitutional power – to
control, and do as it pleases with Indian tribes and their property. These
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arguments deny the most basic constitutional rights and the rule of law to one
specific race or ancestry – Indians – and should be soundly rejected by this Court.
ARGUMENT
I. The Taking Cause of Action.
A. The Government’s Taking Concession.
The government makes a technical argument about the taking issue that
would seem forgettably silly if it were not also a concession of the Tribe’s taking
claim. The government argues that there is no taking of the Tribe’s property
because the Act does not take explicitly from the Timbisha Shoshone Tribe but
from the “Western Shoshone Identifiable Group”; only the Identifiable Group is
the “owner of the fund” and can claim a taking. Brief of Defendants-Appellees at
27-28. “[P]laintiffs were not the holders of the judgment. The original judgment
was entered ‘for and on behalf of the Western Shoshone Identifiable Group.’” Id.
at 28 (emphasis in original). This is determinative, the government argues, even
though the government agrees that the Tribe is one of the “constituent” tribes of
the Identifiable Group. Id. at 25-26. The government offers no reasoning or
authority for the assertion that ownership rights in the name of a specific group of
entities or tribes confers no ownership rights on the entities or tribes themselves.
Would a fund owned by the “National League teams of Major League Baseball”
confer no ownership right on the Washington Nationals? The government’s
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These factual allegations and all reasonable implications from them must1
be accepted as true for purposes of a motion to dismiss under Rule 12(b)(6). BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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argument seems an unsupportable throwback to the form-over-substance
formalism long discarded by our courts.
There is no genuine doubt that the Timbisha Shoshone Tribe is one of the
Western Shoshone tribes making up the Group. This was alleged as a matter of
fact in the Complaint, para. 17 (JA 15) and has been decided by Chief Judge1
Damich of the Court of Federal Claims in Western Shoshone Identifiable Group v.
United States, No. 1:06-cv-00896-EJD, at *14 of the slip opinion (Fed. Cl. Nov.
24, 2009)(reprinted in Addendum II of Brief of Appellants). Indeed, the
government formally admitted in that case, as it has here, that the Tribe is a
member of the Identifiable Group. JA 177. Chief Judge Damich has held in two
opinions in that case that the award fund is held in trust for the Timbisha
Shoshone Tribe and the other tribes making up the group and that the tribes are
“owners” and “beneficial owners” of the fund despite the fact that none of the
tribes is to receive any part of the award under the Distribution Act challenged
here. Western Shoshone Identifiable Group at *14, *4. That is the meaning of the
sentence in his decision, relied on by the government, saying that his decision that
the Tribe and other tribes have a present ownership interest in the award did not
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“require the Tribal Plaintiffs to have vested interests in the proceeds of the
distribution of the Western Shoshone tribal trust funds.” Chief Judge Damich thus
rejected the government’s argument that the tribes can have no vested interest in
the award unless it is granted by the Distribution Act.
That the Tribe is a part of the Identifiable Group is also clear from the fact
that the Commission’s award was to compensate for the loss of lands that were
and are the homeland of the Tribe, as alleged in the Complaint. The Department
of the Interior has also recognized that the Timbisha Shoshone Tribe is part of the
Group in a report it made to identify the members of the Group. JA 193.
Yet, the government argues that, because the award was made to the
Identifiable Group and not to the Tribe by name, the Tribe has no vested interest
and is, therefore, in the same position as the individuals in LeBeau v. United
States, 474 F.3d 1334 (Fed. Cir. 2007). The government quietly but clearly
concedes that if the award was made to the Tribe, then the award is “tribal
property” and LeBeau does not apply. See Brief of Defendants-Appellees at 26,
fn. 15. The government points out that in Delaware Tribal Bus. Comm. v. Weeks,
430 U.S. 73 (1977), the award was made to two tribes, and this is said to account
for the Supreme Court’s conclusion that the award was tribal property. The award
in Weeks was a single award of money made jointly to the two tribes, denominated
simply as “plaintiffs”. Absentee Delaware Tribe of Oklahoma and The Delaware
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Tribe of Indians v. United States, 21 Ind. Cl. Comm. 344 (1969). The award was
not apportioned or divided in any way by the Commission. Thus, the award in
Weeks was much like that in this case. The sole difference is that in this case the
award was made to a group that was made up of constituent tribes including the
Timbisha Shoshone Tribe. There is no reason why, in this case, the tribes should
have no rights and yet in Weeks they are conceded to own the award.
Even if this did not settle the issue of vested rights, the position of the Tribe
in relation to the judgment award is entirely different from the position of the
individuals in LeBeau in many other respects. Only tribes and identifiable groups
could make claims before the Claims Commission, and awards could be made only
to them, never to individuals. In this case the award was made to the Tribe as a
part of the Identifiable Group. The claim for which the award was made was for
the loss of lands belonging to the Tribe and lands belonging to the other tribes –
not for any wrongs to individuals. The payment of the award barred further claims
by the tribes making up the Group and those claiming under the tribes’ title; that
is, the tribes alone suffer that legal consequence of payment of the award, not any
individual. United States v. Dann, 470 U.S. 39 (1985). The award was paid to the
claimants, the Tribe or tribes making up the Group, and the fund was placed in
trust for them, as the Supreme Court has held (id. at 50) and as the government has
agreed. Brief of Defendants-Appellees at 23, fn. 11. The Supreme Court has said
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The tribes that share a vested interest in the judgment award have various2
legal options for dividing the award if they wish to do so, including a negotiatedagreement, litigation, or seeking appropriate legislation.
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that “property” includes “every sort of interest the citizen may possess.” United
States v. General Motors Corp., 323 U.S. 373, 378 (1945). The claimant tribes
thus acquired a vested right in the award when it became final under the terms of
the Indian Claims Commission Act, whereas individuals could have no such right
and could gain a right to a share of the award only by some later grant or legal act
consistent with the rights of the tribes. This present vested interest in this award
on the part of the tribes has been recognized by the Court of Federal Claims as
discussed above.
To sum up this issue, a Claims Commission award and the Indian Claims
Commission Act do not create any rights at all for individuals. But the Tribe as a
member of the Identifiable Group has a clear right to a just share of the award.
Though it is uncertain exactly how much that share would be, in no event would
the Tribe’s share be nothing. In Weeks, the award was to two tribes, and the fact2
that the award was not apportioned among the tribes by the Commission did not
diminish the Supreme Court’s conclusion that the award is “tribal property.” The
government’s argument has no merit, and in the process, the government has
conceded the taking issue.
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B. The Government’s “Plenary Power” and “Retained Authority”Argument.
Defendants-Appellees also oppose the Tribe’s taking cause of action on the
ground that Congress has “plenary power” in the field of Indian affairs and,
pursuant to this power, has retained for itself the authority to determine who
should receive Indian Claims Commission judgment funds, including the power to
deny the funds entirely to the tribes awarded the judgments. Brief of Defendants-
Appellees at 11-12. This power is inconsistent, the government argues, with a
property right in the fund on the part of the Tribe.
This argument is directly contradicted by Weeks and the many other cases
that hold that Claims Commission awards are “tribal property,” the property of
tribes awarded the judgment. Weeks at 85. See, e.g., Minnesota Chippewa Tribe
v. United States, 315 F.2d 906, 914 (Ct. Cl. 1963); Chippewa Cree Tribe v. United
States, 73 Fed. Cl. 154, 161-62 (2006). The award could not be “tribal property”
if the tribes had no vested interest and Congress were free to withhold the award
or simply take it and give it to others.
The argument of retained congressional authority was addressed at length
and rejected by the Supreme Court in United States v. Dann, 470 U.S. at 45-47.
As the Court discussed in Dann, Congress considered and rejected the possibility
of retaining authority, opting instead for making decisions of the Claims
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9
Commission as final as judgments of the Court of Claims. The practice of
enacting statutes to distribute Claims Commission awards could not, of course,
give Congress any power that the Constitution specifically forbids, and there is no
decisional authority at all to suggest that Congress in distributing an award can
effect a taking (without compensation) of that award from the tribe or tribes to
which the award was made by the Commission.
The government’s reliance on the supposed “plenary power” of Congress is
misplaced, because, despite the “plenary power” notion, the Supreme Court has for
more than 100 years refused to countenance the taking by congressional act of
property or property rights owned by Indian tribes or Indian individuals. Nothing
in the Constitution and nothing in the plenary power doctrine gives Congress
authority to take vested rights, especially federally created rights, from Indian
tribes without compliance with the Fifth Amendment.
It is well settled, even in the field of Indian affairs, that once Congress has
created or recognized a property right, it may not disturb that right without
compliance with the Fifth Amendment. In Jones v. Meehan, 175 U.S. 1 (1899), an
Indian chief was granted a tract of land in fee by treaty, and a subsequent action by
Congress interfering with that title was found invalid because it violated the Fifth
Amendment. Id. at 31. In Choate v. Trapp, 224 U.S. 665 (1912), the Supreme
Court found the tax exemption for an Indian allotment granted by federal law
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10
pursuant to an agreement was a vested right and could not be later disturbed by
Congress without violating the Fifth Amendment. In so deciding, the Supreme
Court adopted the rule of statutory construction that Indian legislation is to be
liberally construed in the Indians’ favor and doubtful expressions are to be
resolved in their favor. 224 U.S. at 675. We will return to these rules of
construction as applied in this Court at p. 12 infra. This long-established rule
giving constitutional protection to federally created rights held by Indians applies
as well to tribes. See, e.g., United States v. Shoshone Tribe of Indians, 304 U.S.
111 (1938). This fundamental principle has been repeatedly reaffirmed by the
Supreme Court. Babbitt v. Youpee, 519 U.S. 234 (1997) (act of Congress
interfering with land rights of Indian allotment owners is unconstitutional); Hodel
v. Irving, 481 U.S. 704 (1987) (same). The Constitution protects tribes’ lands and
other property generally from taking without compensation. Lane v. Pueblo of
Santa Rosa, 249 U.S. 110, 113 (1919); United States v. Creek Nation, 295 U.S.
103, 109-10 (1935) (governmental power over the Creek Nation was not absolute
and did not enable the United States to give the tribal lands to others, or
appropriate them to its own purposes, without rendering, or assuming an
obligation to render, just compensation for them); United States v. Sioux Nation,
448 U.S. 371 (1980).
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The only provisions of the Constitution cited as support for Congress’s3
supposed “plenary power” are the Indian Commerce Clause (“to regulateCommerce . . . with the Indian Tribes”) and the treaty power, which is not actuallya power of Congress. Brief of Defendants-Appellees at 20-21.
11
None of the cases or constitutional provisions cited by the government3
(Brief of Defendants-Appellees at 19-21) in support of Congress’s supposed
power over Claims Commission awards goes so far as to say that Congress can
take the award away from a successful tribal claimant without compensation and
give it to others. Congress created the Indian Claims Commission and mandated
that it decide claims filed by Indian tribes and make money awards to successful
claimants. By so doing, Congress authorized the Claims Commission to create
specific rights in successful tribes by making final judgments in their favor, and
Congress gave those determinations the same effect as a final judgment of the
Court of Claims. 25 U.S.C.A. §70u(a) (1976 ed.). Brief of Appellants, Statutory
Addendum. Having created specific rights on the part of successful claimant
tribes through the Indian Claims Commission Act, Congress was no longer free to
take or interfere with those rights without compliance with the Fifth Amendment.
The Indian Claims Commission Act provides that an award of the Claims
Commission “shall have the effect of a final judgment of the Court of Claims.” 25
U.S.C. A. §70u(a) (1976 ed.). If this statute means anything at all it means that an
award to a claimant is final and creates rights that cannot be disturbed by Congress
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12
without payment of Fifth Amendment compensation. The government’s argument
that Congress can freely take the entire judgment award from the tribal owners and
give it to others makes this statutory provision meaningless.
This Court has recognized the long-established canons of construction for
federal statutes dealing with the rights of Indian tribes. In Cobell v. Norton, 240
F.3d 1081, 1101 (D.C. Cir. 2001), this Court wrote:
The governing canon of construction requires that "statutes are to beconstrued liberally in favor of the Indians, with ambiguous provisionsinterpreted to their benefit." Montana v. Blackfeet Tribe of Indians,471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). Therefore, even where the ambiguous statute is one entrusted to anagency, we give the agency's interpretation "careful consideration"but "we do not defer to it." Muscogee (Creek) Nation v. Hodel, 851F.2d 1439, 1445 n. 8 (D.C. Cir. 1988). This departure from theChevron norm arises from the fact that the rule of liberally construingstatutes to the benefit of the Indians arises not from ordinary exegesis,but "from principles of equitable obligations and normative rules ofbehavior," applicable to the trust relationship between the UnitedStates and the Native American people. Albuquerque Indian Rightsv. Lujan, 930 F.2d 49, 59 (D.C. Cir. 1991); see also County ofOneida v. Oneida Indian Nation of New York State, 470 U.S. 226,247-48, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (Court resolvesambiguity in favor of Indian claims); Pueblo of Sandia v. Babbitt, 231F.3d 878, 880 (D.C. Cir. 2000).
Id. at 1101; see also id. at 1100-01.
This very sound set of principles calls for an interpretation of the Claims
Commission Act that gives terms their usual meaning, not one that takes away or
diminishes the very rights created by the Act. A judgment and an award to a
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13
successful claimant tribe or group of tribes must mean that they are entitled to
compensation in the stated amount and that the award belongs to them. A
determination or judgment that is final is not subject to alteration, and it creates
vested rights, as we discussed in our main Brief at pp. 6-10. The interpretation
offered by the government makes the Claims Commission process practically a
fraud, because, so the argument goes, Congress could deny or take back the
judgment award from a tribe that wins its claim.
The government’s construction of the Claims Commission Act is that a
Claims Commission award made to compensate tribes for the loss of their lands
gives the successful claimants no right at all to the judgment award or to any
compensation for the wrongs proven. Rather, the government argues, the award
was paid into a trust account for an abstract entity (the Identifiable Group) and not
for any of the Western Shoshone tribes, and the claims of all of the tribes were
thereby extinguished and barred by the Claims Commission Act. And yet the
government has no obligation to compensate the tribes in any way. This is a
construction of the Claims Commission Act, particularly of §70u(a), that is
extremely adverse to Indian tribes and thus inconsistent with the canons of
construction quoted above, not to mention the government’s trust obligations and
the rules of reason and equity.
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14
II. Classifications Harming Indian Tribes Must be Given Strict Scrutiny.
Our main brief on behalf of Plaintiffs-Appellants urged reversal of the
district court based on two major equal protection arguments – that strict scrutiny
is appropriate because the Act imposes harm on a group designated in explicitly
racial terms; and that, if rational basis review were applied, expediting payment is
not a legitimate or rational justification for taking property and giving it to others.
The Brief of Defendants-Appellees challenges both arguments, but, significantly,
does not support some of the most significant aspects of the district court’s
analysis, including the key justification for refusing to apply strict scrutiny
adopted by the district court at the urging of the government.
The main rationale adopted by the district court for refusing to apply strict
scrutiny to this explicitly racial classification was the position advanced by the
government below: Indian classifications, though undeniably racial or ancestral,
are “non-suspect.” JA 47-48; see Defendants’ Motion to Dismiss, JA 14-15. Our
Brief of Appellants emphasized that, although there is some authority for such a
position, it is unsupportable and itself amounts to the worst kind of denial of equal
protection by courts – judicial exclusion of a particular race or ancestry from equal
protection of the law and from the minimal requirements of the rule of law.
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The abandonment of the “non-suspect classification” position by the4
government in this case is significant for equal protection law generally and forIndian law and the rights of Indians specifically.
15
We welcome the government’s abandonment of this position. However,4
the government’s new analysis presented in the Brief of Defendants-Appellees
embodies the same position without explicit advocacy of it. Further, the
government now relies almost exclusively on a case, Delaware Tribal Bus. Comm.
v. Weeks, that does not even address the issues raised by the equal protection
claim in this case. And while the government cites and acknowledges the
relevance of Adarand Constructors v. Pena, 515 U.S. 200 (1995) – neither of
which the district court did – it ignores the clear holding and specific language of
Adarand and similar cases.
The government’s new position is that strict scrutiny does not apply to a
“distribution act.” Brief of Defendants-Appellees, at 35-37. “[D]istribution act”
refers, of course, to acts “in the Indian law context” (id. at 35) distributing funds
to Indian tribes or individuals – which brings the government’s position back,
once again and without explanation, to an exception to the usual equal protection
rules for one racial group, Indians. The “non-suspect” exemption of one racial
group from the rules that apply to all others has crept in by a back door.
This is required, the government argues, by Weeks, and application of strict
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16
scrutiny “would require” that Weeks be “overruled” (id. at 35), because, the
government’s logic goes, Weeks dealt with a statute that “mentions ancestry” but
did not apply strict scrutiny. Id. at 35-36. However, the Supreme Court did not
apply or discuss strict scrutiny in Weeks, because in that case there was no claim
of discrimination on the basis of race or ancestry, nor any request or suggestion
that strict scrutiny be applied. And our argument is not that any mention of
ancestry triggers strict scrutiny, but that, as the Supreme Court held in Adarand
and other recent cases, legislation imposing harm (or conferring a benefit) on the
explicit basis of race or ancestry should receive strict scrutiny.
Weeks concerned the different paths taken by various Delaware Indians
after the government’s seizure of their land. Some associated with the Cherokees,
some moved to Oklahoma, some settled in Kansas. The lawsuit arose because the
Kansas Delawares were left out of a distribution act that included other Delawares.
The Kansas Delawares challenged their exclusion as a violation of equal
protection on the ground that it was not rational to include some Delawares and
exclude the Kansas Delawares in the distribution act.
All of the individual and group plaintiffs and defendants in Weeks were
Delaware Indians. The Kansas Delaware Indians did not and could not claim
discrimination against Delaware Indians, and therefore they did not request or
suggest that strict scrutiny be applied. In the Weeks decision, none of the
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In the Weeks record, see particularly Jurisdictional Statement of the5
Solicitor General of the United States, 1976 WL 194437; Brief for AppellantsOpposing Motion to Dismiss, 1976 WL 194377; Reply Memorandum for theAppellants, 1976 WL 194272; Brief for the Absentee Delaware Tribe BusinessCommittee, 1976 WL 194387; Brief for the Secretary of the Interior, 1976 WL194271; Brief for Appellees, 1976 WL 194378; Brief for the Delaware TribalBusiness Committee, et al., 1976 WL 181618; Reply Brief for the AbsenteeDelaware Tribe Business Committee, 1976 WL 194388; Reply Brief for theDelaware Tribal Business Committee, et al, 1976 WL 181623.
17
Supreme Court’s opinions discusses or mentions strict scrutiny or any claim of
discrimination on the basis of race or ancestry, nor do the complaint or the
plaintiffs’ or defendants’ briefs before the Supreme Court. 5
The distribution act in Weeks mentions “ancestry” to define those current
Delaware Indians among the various groupings of Delaware Indians who would
receive funds from the distribution. 25 U.S.C.A. §§ 1291, 1292 (2006) (See
Addendum). This is not a racial or ancestral designation, anymore than
distinguishing African-Americans whose ancestors migrated from Mississippi to
Chicago as opposed to Philadelphia would be; and no harm was imposed or
benefit conferred based on race or ancestry. There was no claim, nor could there
be, of discrimination against Delaware Indians on the basis of race or ancestry.
The distribution act challenged as discriminatory on the basis of race in the
instant case – which the government characterized as “classifying Indians” (JA 47-
48) – specifically imposes harm on the “Western Shoshone Identifiable Group” of
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18
Indian tribes and the “Western Shoshone Indians” by taking their property and
giving it to others. Not all distribution acts are equal. A general rule or holding
that dispenses with strict scrutiny for all distribution acts, as suggested by the
government, would be incoherent and irrational, and would undercut exclusively
Indian equal protection claims.
The government’s reliance on Weeks is misplaced. Nor do the other cases
cited by the government offer support for its position. Narragansett Indian Tribe
v. Nat’l Indian Gaming Comm., 158 F.3d 1335 (D.C. Cir. 1998), concerned
different treatment among Indian tribes and, like Weeks, did not involve a claim of
discrimination on the basis of race or ancestry. The Court specifically noted that
the parties “agree that strict scrutiny does not apply.” 158 F.3d at 1340. U.S. Air
Tour Ass’n v. FAA, 298 F.3d 997 (D.C. Cir. 2002), presented a challenge, like
Morton v. Mancari, 417 U.S. 535 (1974), discussed in our main brief at p. 21, to a
preference for Indians, regarding aircraft overflights of the Grand Canyon; the
Court focused, as in Morton, on the government’s interest in the particular
preference and on whether the preference was a political rather than racial
classification. Neither of these cases presents – as the taking of the Timbisha
Tribe’s property does – a racial discrimination challenge to a statute that imposes
direct, specific harm on a group explicitly described by race or ancestry.
The government did not present any argument in support of the district
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19
court’s other grounds for refusing to apply strict scrutiny – that strict scrutiny is
applicable for explicit Indian classifications only as to state or local measures, but
not federal measures; and that strict scrutiny is not applicable to explicit
classifications for the purpose of identification. Nor did the government argue or
even assert before this Court or the district court that the statute meets the
compelling interest and least restrictive means requirements of strict scrutiny.
The government has argued that the statute satisfies rational basis
requirements, again with misplaced reliance on Weeks. Brief of Defendants-
Appellees, at 32-35. The government interest presented and analyzed is “to avoid
any further delay.” Id. at 32.
Essentially, the government is saying, if we generalize their argument, that a
long time had passed since it gave A ownership rights to specific property, and the
government wished to do something to transfer the property without further delay,
so this Court should rule that it was reasonable and legitimate to give A’s property
to B because B has some connection to A and it’s quicker that way. This would be
transparently inappropriate, if not laughable, if A were a more familiar sort of
entity with the capacity to own property and B were A’s members or others with
an interest in A. If A were, for example, a trust, corporation, or church, the
government would be used to drawing sharp distinctions between them and their
beneficiaries, shareholders, and parishioners, respectively.
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20
Such property distinctions are, of course, important in American law, and
courts spend a lot of their time drawing such distinctions in ownership and other
rights and responsibilities as precisely, fairly, and according to applicable law as
possible. But often the government and the courts have taken the rights and
property of Indians tribes and Indians generally with a nonchalance and lack of
serious focus or attention that would be shocking if applied to others. Indeed,
among the various entities with the capacity to own property, this particular one –
an Indian tribe – has the strongest claim to a strong legal status independent of its
members or constituents. Unlike the other entities just mentioned, Indian tribes
have the status of nations and explicit constitutional legitimacy that includes the
power to enact and enforce their own laws.
No court should, as the district court did in this case, regard the property of
an Indian tribe as loosely or inconsequentially synonymous with the property of
members of the tribe. Taking property from an Indian tribe and giving it to
Indians associated with the tribe is not reasonable or legitimate because it’s
quicker.
This nonchalance with Indian property and rights is also apparent in the
government’s emphasis on Congress’ power with only dismissive consideration of
constitutional limits on that power. In this regard, the government might look to
its favorite case, Weeks, where the Court said:
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21
the plenary power of Congress in matters of Indian affairs does not meanthat all federal legislation concerning Indians . . . is immune from judicialscrutiny . . . [including scrutinizing] to determine whether it violates theequal protection component of the Fifth Amendment. 430 U.S. at 83-85(citations and quotation marks omitted).
Finally, while the government, unlike the district court, acknowledges the
relevance of Adarand and similar equal protection decisions (cited in the Brief of
Appellants, at 16-17), it ignores their central holding and language. The
government even suggests a new category – “primary classification,” seemingly
meaning that a possible nonracial purpose for a racial classification might exempt
it from strict scrutiny – to avoid the clear meaning of Adarand. Brief of
Defendants-Appellees, at 36.
Specifically, Adarand said and held the following (515 U.S. at 223-24, 227
(emphasis added)):
1. “[A]ll racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict scrutiny.”
2. “The standard of review is not dependent on the race of those burdened
or benefitted by a particular classification.”
3. The reason racial classifications must be subject to strict scrutiny is that,
without strict scrutiny, “there is simply no way of determining what classifications
are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial politics.”
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22
4. If there were any categorical exceptions, a racial exception, like the
Indian exception adopted by the district court and the government’s “distribution
act” exception applicable to only one race, would be the least appropriate, because
the standard of review “is not dependent on the race of those burdened or
benefitted.”
Strict scrutiny should not automatically be triggered by every mention of
race or ancestry in legislation, but where harm is imposed (or a benefit is
conferred) on the explicit basis of race or ancestry, strict scrutiny should be
applied. In such a case, if no compelling government interest is established or
even asserted by the government, such legislation should be invalidated.
III. Plaintiffs-Appellants have authority to maintain this suit.
Defendants-Appellees contend that the Tribe and the other Plaintiffs-
Appellants have not demonstrated that they have authority to maintain this suit,
because the Secretary of the Interior gave temporary recognition for 120 days to an
opposing faction of the Tribe. The government contends that the Secretary’s
recognition means that the opposing leader, George Gholson, should be
automatically substituted for the Plaintiffs-Appellants pursuant to Fed. R. App. P.
43(c)(2), and that the appeal should be dismissed as somehow moot.
The government has given a very one-sided and misleading account of the
facts. The Department of the Interior decided, on March 1, 2011, contrary to
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23
applicable law, to recognize an opposing faction for a 120-day period, which has
expired, so that it would conduct a special election for all of the seats on the Tribal
Council. The Timbisha Constitution does not provide for nor sanction such an
election. Nevertheless, the faction temporarily recognized by the Department
conducted such a special election at the behest of the Department. In this election,
persons who are not members of the Tribe and who do not meet the membership
requirements of the Timbisha Constitution were permitted to stand for office and
to vote. No process was provided for contesting the election or for contesting the
qualifications of voters or candidates.
The government’s allegations and the related legal issues are very much in
dispute, and they are being litigated in a separate lawsuit by the Tribe in the
Eastern District of California, Timbisha Shoshone Tribe v. United States
Department of Interior, 2:11-cv-0995 (E.D. Cal.). In that suit, the Tribe challenges
the Department of Interior’s decisions concerning recognition and the
Department’s reliance on a special election not permitted under the Tribe’s
Constitution.
Nothing has occurred that has divested Plaintiffs-Appellants of their
authority and standing to bring this suit. Department of Interior recognition is not
necessary for the Timbisha Tribal Government to function pursuant to its own
Constitution, and recognition is not necessary for a tribal government to sue on its
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24
own behalf, as the district court correctly decided. JA 341-45. See Golden Hill
Paugussett Tribe v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994).
The government’s argument is actually an affirmative defense based on
factual allegations that directly contradict the allegations of the Complaint, paras.
4-10. JA 13-14. Plaintiffs-Appellants have alleged that they are members of the
Tribal Council elected pursuant to the Tribal Constitution or that they are members
of the Tribe, and that the Tribal Council by resolution authorized this suit on
behalf of the Tribe. Of course, in reviewing a dismissal for failure to state a claim,
the allegations of the complaint must be taken as true, and the plaintiff must be
given the benefit of all reasonable inferences from those allegations. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Aktieselskabet AF 21. November
2001 v. Fame Jeans, Inc., 525 F. 3d 8, 17 (D.C. Cir. 2008). See Golden Hill
Paugussett Tribe at 58. See also Askew v. Trs. of the Gen. Assembly of the
Church of the Lord Jesus Christ of the Apostolic Faith, 644 F. Supp. 2d 584, 591
(E.D. Pa. 2009).
The government, with this argument, is attempting to litigate a possible
defense that cannot be properly asserted in this appeal from a dismissal under
Federal of Rule of Civil Procedure 12(b)(6). Such a defense must be raised in an
appropriate pleading, not in a 12(b)(6) motion. Fed. R. Civ. P. Rule 8(c). See
Syracuse Broadcasting Corp. v. Newhouse, 14 F.R.D. 168, 170 (N.D.N.Y. 1953);
USCA Case #11-5049 Document #1317954 Filed: 07/11/2011 Page 31 of 39
25
Wright v. R.&L. Mkt., 9 F.R.D. 559, 560 (1949).
Further, the extra-record documents the government points to in support of
its argument are not properly considered on this appeal from the district court’s
ruling. O'Neal v. Cowles Magazines, 225 F.2d 43, 45 (D.C. Cir. 1955) (refusing
to consider documents not part of the record before the district court). See Fed. R.
App. P. 10(a).
The government’s allegations, even if proven, would not make this case
moot. "An action is moot when nothing turns on its outcome." Schering Corp. v.
Shalala, 995 F.2d 1103, 1105 (D.C. Cir. 1993); Motor & Equip. Mfrs. Ass'n. v.
Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998). However, the government barely
mentions the decisional law about mootness, and certainly does not meet the
“heavy” burden a mootness challenge entails. Reeve Aleutian Airways, Inc. v.
United States, 889 F.2d 1139, 1142-43 (D.C. Cir. 1989). This Court has held “[a]
dispute is not moot unless (1) there is no reasonable expectation that the alleged
violation will recur and (2) ‘interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.’” Id. (quoting County
of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In other words, a federal
court may only refrain from deciding a case on mootness grounds where “events
have so transpired that the decision will neither presently affect the parties' rights
nor have a more than-speculative chance of affecting them in the future."
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26
Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C. Cir. 1998) (citations
omitted). The government has made no showing regarding any element of
mootness analysis as required by this Court.
Rule 43 of the Federal Rules of Appellate Procedure is of no help to the
government’s argument. Rule 43(c) in no way relieves a party of the heavy burden
required to succeed on a mootness challenge, because "substitution [under Rule
43(c)] is merely a procedural device that does not govern the question of
mootness." Kincaid v. Rusk, 670 F.2d 737, 741 (7th Cir. 1982). Indeed, the entire
purpose of the rule, like the civil procedure rule upon which it is modeled, is to
“prevent suits involving public officers from becoming moot due to personnel
changes.” Karcher v. May, 484 U.S. 72, 83 (1987) (emphasis added) (citing
Advisory Committee Notes on 1961 Amdt. to Fed. R. Civ. P. 25(d)(1)); see
Advisory Committee Notes on 1961 Amdt. to Fed. R. Civ. P. 25(d)(1) (“Automatic
substitution under the amended rule, being merely a procedural device for
substituting a successor for a past officeholder as a party, is distinct from and does
not affect any substantive issues which may be involved in the action.”).
Finally, even if the government were correct that Rule 43 requires
substitution of individual defendants based on disputed factual allegations outside
the appellate record, this would do nothing to impair the claims or the standing of
the Tribe itself. Rule 43 speaks only to substitution of “a public officer who is a
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27
party” and in no way affects the capacity of any government entity to sue it its own
name. The government has not contended – and cannot contend – that the Tribe
itself does not have standing to assert its own rights and does not face an injury
that this Court can redress if the Tribe prevails on the merits.
V. The Preliminary Injunction Issues.
Some arguments in the Brief of Defendants-Appellees on the preliminary
injunction issue deserve a brief reply.
A. The District Court Erred in Finding Plaintiffs-Appellants are notLikely to Establish Their Authority to Sue.
The government (id. at 17, fn. 9) misstates the argument on pp. 24 and 25
of our main brief. We argue that the district court erred by assuming facts not in
the record in order to decide a factual issue, by ignoring the evidence before the
court, and by not conducting a hearing to permit the parties to submit evidence.
The government’s claim in that same footnote that Interior’s recognition of
an opposing faction divests Plaintiffs-Appellants of the ability to maintain this suit
is completely false. There is no legal authority whatever to support such an
argument.
B. There is No Available Damages Remedy.
In relation to the denial of a preliminary injunction, the government argues
that an action for damages is actually available to the Tribe. However, the
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28
government ignores the conclusions of this Court in Student Loan Mktg. Ass’n., v.
Riley, 104 F.3d 397 (D.C. Cir. 1997), and the Supreme Court in Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998), that in cases of this sort, a damages
remedy is not available and does not bar equitable relief. This is precisely the sort
of case comprehended by those decisions, because it involves a statute mandating
payments of cash, and there is no possibility that Congress could have intended to
pay compensation.
The government also argues that a damages action is not made impossible
for the Tribe by the sovereign immunity of the other Western Shoshone tribes that
would be “indispensible parties” in any such damages action for the taking of the
judgment fund awarded to all the tribes. The government argues that the United
States could represent the interests of the absent tribes. Brief of Defendants-
Appellees, at 40-1. However, the United States has interests that are absolutely
adverse to those of the tribes. These are the Western Shoshone tribes that were
awarded the judgment fund that the United States is now taking and distributing to
individuals (without compensation to the tribes). Each tribe has a potential claim
against the United States for the taking of its share of the judgment fund. The
United States could not reasonably claim to represent the interests of parties that
hold such potential claims.
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CONCLUSION
Plaintiffs-Appellants respectfully request this Court to reverse the order
granting the motion to dismiss and to remand the case with instructions to issue a
preliminary injunction.
July 11, 2011 /S/
Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006
Philomena KebecIndian Law Resource Center601 E Street, S.E.Washington, D.C. 20003(202) 547-2800
Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959
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CERTIFICATE OF SERVICE
I certify this Reply Brief of Appellants was served on July 11, 2011 by
electronic filing using the Court of Appeals CM/ECF system on the following:
Brian C. TothAppellate SectionEnvironment and Natural Resources DivisionUnited States Department of JusticeP.O. Box 23795Washington, DC 20026-3795Counsel for Appellees
/S/
Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, Montana 59601(406) 449-2006
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Certificate of Compliance with Type-Volume Limitation,Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B) because this brief contains 6,925 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App.
P. 32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using WordPerfect version X3, in New Times Roman 14 point type.
__________/S/__________
Robert T. CoulterAttorney for Plaintiffs-Appellants
Dated: July 11, 2011
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STATUTORY ADDENDUM
25 U.S.C.A. §§ 1291, 1292 (2006)
§ 1291. Disposition of fundsThe funds appropriated by the Act of December 26, 1969 (83 Stat. 447, 453), topay a judgment in favor of the petitioners, the Delaware Tribe of Indians in docket298, and the Absentee Delaware Tribe of Western Oklahoma, and others, indocket 72, together with any interest thereon, after payment of attorney fees,litigation expenses, and such expenses as may be necessary in effecting theprovisions of this subchapter, shall be distributed as provided herein.
§ 1292. Membership roll requirementsThe Secretary of the Interior shall prepare a roll of all persons who meet thefollowing requirements:
(a) they were born on or prior to and were living on October 3, 1972; and
(b) they are citizens of the United States; and
(c)(1) their name or the name of a lineal ancestor appears on the Delaware Indianper capita payroll approved by the Secretary on April 20, 1906, or (2) their name or the name of a lineal ancestor is on or is eligible to be on theconstructed base census roll as of 1940 of the Absentee Delaware Tribe ofWestern Oklahoma, approved by the Secretary.
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