restricted access Chapter 1 Federal Indian Law Policy:Origins and Legal Development
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 Federal Indian Law Policy: Origins And Legal Development  P.11, n.51. Add the following to the end of the footnote before the period: , rev’d, 559 F.3d 1228 (Fed. Cir. 2009) P.14, n.71. Delete that portion of the footnote from “On remand ” in line 8 through the period at the end of line 21. P.14. Add the following to the text after footnote 71: The Supreme Court applied the same analytical approach in a reversing the Federal Circuit’s determination following remand proceedings in the Navajo litigation that a combination of federal statutes, other than the IMLA, created a money-mandating trust obligation.71.1 71.1 United States v. Navajo Nation, 129 S. Ct. 1547 (2009). On remand, the tribe had been permitted to pursue another breach of trust theory premised on a “network” of treaties, statutes and regulations other than those before the Supreme Court. Its theory was rejected by the Federal Claims court but accepted by the Court of Appeals for the Federal Circuit. Navajo Nation v. United States, 68 Fed. Cl. 805 (2005), rev’d, 501 F.3d 1327 (Fed. Cir. 2007), rev’d, 129 S. Ct. 1547 (2009). The “network” claim was predicated on two treaties, an Executive Order and several statutes including the 1950 Navajo-Hopi Rehabilitation Act, the 1977 Surface Mining Control and Reclamation Act, the 1983 Federal Oil and Gas Royalty Management Act, and regulations implementing the latter two laws. The Federal Circuit found the “network” to be money-mandating on the basis of five considerations: the existence of a trust relationship and trust language; federal control of coal resource planning; federal control of coal mining operations; federal control of the management and collection of coal mining royalties; and federal control of coal leasing and liabilities arising from the leasing arrangements. 501 F.3d at 1340–45; see generally Kimberly C. Perdue, Comment, The Changing Scope of the United States’ Trust Duties to American Indian Tribes: Navajo Nation v. United States, 80 U. Colo. L. Rev. 487, 520–21 (2009) (reasoning that “the Federal Circuit Chapter 1 Federal Indian Law Policy: Origins and Legal Development  2009 Supplement—American Indian Law Deskbook, Fourth Edition evaluated the network as an aggregate, considering the manner in which the network’s elements worked together to assign to the Secretary of the Interior control over coal resource planning, coal mining operations, the management and collection of coal mining royalties, and coal leasing” and that, in contrast to the Court of Federal Claims, “the Federal Circuit concluded that the network collectively established the Secretary of the Interior’s comprehensive control over all aspects of the Nation’s coal resources, and, according to the doctrine that the greater includes the lesser, likewise established the Secretary’s control over the renegotiation of . . . [the] royalty rate”). It thus held that assigning money-mandating status to the “network” was consistent with the involved laws’ purposes and rejected the United States’ argument that the tribe “must allege a violation of a specific rights-creating or dulyimposing statute or regulation and the common law of trusts cannot be applied .” 501 F.3d at 1345. Although the Supreme Court agreed as “[t]hreshold [m]atter” (129 S. Ct. at 1554) that the earlier decision had not analyzed the breach of trust claim under any statute other than the IMLA and thus was unable to “say that our mandate completely foreclosed the possibility that [another] statute might allow for the Tribe to succeed on remand[,]” the Court could say “that our reasoning in [the first Navajo decision]—in particular, our emphasis on the need for courts to ‘train on specific rights-creating or dutyimposing statutory or regulatory prescriptions[]’—left no room for that result based upon the sources of law that the Court of Appeals relied upon” (id. at 1555). It then addressed each of the non-IMLA statutes relied upon by the lower court and found none of them contained a rights-creating or dutyimposing prescription. Id. at 1557–58. The Supreme Court also rejected the Federal Circuit’s more generalized reliance on federal governmental control over Indian-land coal development as a basis for implying a compensable trust obligation, reiterating that the complainant must identify the requisite statutory prescription and explained that if such “prescription bears the hallmarks of a ‘conventional fiduciary relationship,’ . . . then trust principles (including any such principles premised on ‘control’) could play a role in ‘inferring that the trust obligation [is] enforceable by damages.’ ” Id. at...


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