TITLE: Supporting Efforts to Reform or Repeal 28 U.S.C. § 1500
WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do hereby establish and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and
WHEREAS, it is well-established that a trust relationship exists between the United States Government, as trustee, and Indian tribes, as beneficiaries, and this sacred trust includes the fiduciary duty of the United States Government to properly manage the assets and funds it holds for the benefit of Indian tribes and, when those assets and funds are mismanaged, a fundamental right of an injured beneficiary to sue the United States, as trustee, for damages resulting from a breach of trust; and
WHERAS, Indian tribes, as beneficiaries, are entitled to an accurate accounting of the assets and funds held for their benefit, and to sue the United States, as trustee, for such an accounting; and
WHEREAS, many Indian tribes have pursued claims against the United States for the loss or mismanagement of tribal assets and funds, and for an accurate accounting of these assets and funds, held in trust by the United States; and
WHEREAS, the different nature of relief sought under these claims has necessitated the pursuit of such claims in both the Court of Federal Claims and other federal courts; and
WHEREAS, in United States v. Tohono O’odham Nation, 131 S.Ct. 1723 (2011) the United States Supreme Court held that a federal law, 28 U.S.C. § 1500, prevents a plaintiff from pursuing a claim against the United States in the Court of Federal Claims if the claim shares substantially the same operative facts as a claim pending in another court; and
WHEREAS, the Supreme Court’s decision reversed long-standing Federal Circuit precedent that allowed the Court of Federal Claims to retain jurisdiction over a claim under Section 1500 if a plaintiff sought different relief in the Court of Federal Claims than it sought in another forum; and
WHEREAS, the Supreme Court’s interpretation of 28 U.S.C. § 1500 has led to the dismissal of lawsuits brought by several Indian tribes against the United States, and may otherwise adversely affect the ability of Indian tribes to pursue valid claims against the United States; and
WHEREAS, the Supreme Court’s interpretation of 28 U.S.C. §1500 also restricts Tribes’ abilities to obtain complete relief against the United States in many other contexts where a single factual predicate gives rise to two or more claims against the United states and different courts have jurisdiction over those claims; and
WHEREAS, the Supreme Court observed in its decision that “[i]f indeed the statute leads to incomplete relief” or causes “undue hardship for plaintiffs," citizens are “free to direct their complaints to Congress;” and
WHEREAS, the Committee on Judicial Review for the Administrative Conference of the United States, an independent federal agency dedicated to improving the federal administrative process; is considering a draft recommendation to reform or repeal 28 U.S.C. §1500; and
WHEREAS, it is in the best interest of NCAI to support tribes in holding the United States accountable for the misuse of, or injury to, tribal interests, assets, and funds, and to remove procedural barriers to such accountability.
NOW THEREFORE BE IT RESOLVED, that the NCAI supports the reform or repeal of 28 U.S.C. § 1500 in a manner that would protect the ability of tribal plaintiffs to pursue claims involving substantially the same operative facts against the United States in both the Court of Federal Claims and in other federal courts; and
BE IT FURTHER RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution.
The foregoing resolution was adopted by the General Assembly at the 2012 Annual Session of the National Congress of American Indians, held at the Sacramento Convention Center from October 21-26, 2012 in Sacramento, California, with a quorum present.