Native Alaskan family awarded $4.9 million in damages for trespass

Posted on February 17th, 2011 by Joseph William Singer.
Categories: Trespass, Tribal property.

A federal judge awarded the Oenga family of Barrow, Alaska $4.9 million dollars in damages against the United States because the Bureau of Indian Affairs (BIA) authorized BP oil company to cross the Oenga’s property to obtain access to 3 of BP’s oil fields when the family had only granted permission for access to one of those fields. Judge Awards Alaskan family $5M (U.S. News, Feb. 9, 2001)

While the case is, in some sense, an ordinary trespass case, it is complicated by the fact that the BIA has legally-enforceable fiduciary obligations to protect the property rights of Native Alaskans. The Oengas are Inupiats (Eskimos).

Comments Off

United States supports the U.N. Declaration on the Rights of Indigenous Peoples

Posted on December 17th, 2010 by Joseph William Singer.
Categories: Tribal property.

President Barack Obama announced on December 16, 2010 that the United States would join more than 140 other countries in supporting the United Nations Declaration on the Rights of Indigenous Peoples. That Declaration supports the rights of indigenous peoples to protection of their property, cultures, and religious traditions, as well as guaranteeing self-determination. A detailed statement explaining U.S. support for the Declaration is available here.

Comments Off

US Supreme Court takes cert in tribal tax foreclosure case

Posted on December 3rd, 2010 by Joseph William Singer.
Categories: Tribal property.

In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court ruled that too much time had passed for the Oneida Indian Nation to assert sovereignty over land that was illegally taken from it by the state of New York in the early 19th century. Although the transfer of title from the tribe to the state violated the federal Trade and Intercourse Act, 25 U.S.C. §177, and thus was of no validity whatsoever and although no federal or state statute of limitations barred the tribe’s property claim against the state, the doctrine of laches was applied to deny the tribe sovereign powers over land it had repurchased from a non-Indian owner even though that land had been within its original reservation and those lands had never been taken by the United States – the only sovereign with the power to extinguish tribal title to the land. As a result, although the tribe had reunited title and possession by purchasing the land, the Supreme Court held the land to be subject to state property taxation.

When the tribe refused to pay property taxes on its land, two N.Y. counties brought tax foreclosure actions against the tribe and its lands. The Second Circuit ruled, in Oneida Indian Nation of New York v. Madison and Oneida County, 2010 WL 1659452, that the tribe’s sovereign immunity barred the lawsuit, making it impossible for the counties affirmatively to enforce their right to collect the taxes. The court did not mention an alternative ground for denying the foreclosure action: the Trade and Intercourse Act prohibits any transfer of title to tribal land without the consent of the United States. There is some doubt about whether the Act applies to land held in fee simple but the District Court in the Oneida case held that it did and was an alternative ground for denying the counties the power to proceed with the tax foreclosure case. See Oneida Indian Nation v. Oneida County, 432 F.Supp.2d 285, 292 (N.D.N.Y. 2006).

The Supreme Court took certiorari in the case, Madison County, N.Y. v. Oneida Indian Nation of New York, 2010 WL 2753782, 79 USLW 3062, 79 USLW 3220, 79 USLW 3226 (U.S. Oct 12, 2010), and federal Indian law specialists fear that the Court may choose an alternative ground to overrule the Court of Appeals decision. The Court may find the Oneida reservation to have been implicitly diminished even though no treaty or Act of Congress has formally taken those lands out of the reservation borders. In general, Congress must act explicitly to alter the borders of Indian country especially in a case like this in which Congress never ratified the arrangements by which New York took over Oneida lands.

On Nov 30, 2010, the Oneida Indian Nation wrote to the Supreme Court to announce that the tribe had formally waived sovereign immunity with regard to claims against it for unpaid property taxes. It did not waive other defenses it might have, especially its claims that the taxes were not authorized by state law.

Comments Off

$3.4 billion settlement in Cobell litigation involving federal mismanagement of individual tribal trust lands

Posted on December 9th, 2009 by Joseph William Singer.
Categories: Tribal property.

In the late  19th century, the United States took lands from American Indian nations and transferred them to individual tribal members. Those lands were often managed by the federal government through the Bureau of Indian Affairs (BIA) which would arrange to lease the lands for grazing and mining purposes. The U.S. was supposed to pay the royalties to the Indian owners but often did not do so and over time many records were lost. Twenty years of litigation has ended with a settlement by which the US will pay $1.4 billion to class members (roughly $1000 per person) and in addition establish a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. Read Interior Department press release. Here is the Turtletalk report on the settlement.

Comments Off

A First Nation in Canada allows its members to obtain alienable property rights in communal land

Posted on November 20th, 2009 by Joseph William Singer.
Categories: Tribal property.

The Nisga’a Lisims government (a First Nation located in British Columbia, Canada) approved a law allowing individual Nisga’a citizens to obtain title to previously communally owned land in a form that makes that property freely alienable. Read article

Comments Off

Two Circuits allow global warming lawsuits against power companies

Posted on November 19th, 2009 by Joseph William Singer.
Categories: Environmental law, Nuisance, Tribal property.

A federal court in California refused to allow the Native Village of Kivalina to sue 24 energy and utility companies for causing global warming and causing environmental changes that may well require the entire village to relocate. The court held, in Native Village of Kivalina v. Exxon Mobil Corp., 2009 WL 3326113 (N.D. Cal. 2009), that the question was nonjusticiable because it was impossible to prove causation.

However, both the Second and Fifth Circuits have recently allowed cases to proceed which claim that defendants contributed to global warming and thus caused a public nuisance and/or violated the plaintiffs’ property rights protected by a variety of doctrines, including trespass, negligence, and private nuisance. See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. 2009); Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009).

Comments Off