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Indian Nations Law Update - May 2011

May 09, 2011

Supreme Court Rules on Court of Federal Claims Jurisdiction in Breach of Trust Case
The Supreme Court ruled April 26th in the case of United States v. Tohono O'Odham, 2011 WL 1543329, that tribes claiming that the federal government breached its fiduciary duty cannot sue for monetary damages in the Court of Federal Claims (CFC) while also seeking an accounting and other equitable relief in a federal district court.

The Court ruled that 28 U.S.C. § 1500, which bars a suit in the CFC "for or in respect to" a claim pending elsewhere, applies where the two lawsuits are "based on substantially the same operative facts," even if they seek different relief. The Court held that the Tribe's fiduciary breach action in the district court was sufficiently similar to the CFC case to bar the latter: "The two actions both allege that the United States holds the same assets in trust for the Nation's benefit. They describe almost identical breaches of fiduciary duty -- that the United States engaged in self-dealing and imprudent investment, and failed to provide an accurate accounting of the assets held in trust, for example. Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect."

The Court rejected the Tribe's argument that forcing it to choose a single forum would be unfair: "There is no merit to the Nation's assertion that the interpretation adopted here cannot prevail because it is unjust, forcing plaintiffs to choose between partial remedies available in different courts. The hardship in this case is far from clear. The Nation could have filed in the CFC alone and if successful obtained monetary relief to compensate for any losses caused by the Government's breach of duty. It also seems likely that Indian tribes in the Nation's position could go to district court first without losing the chance to later file in the CFC, for Congress has provided in every appropriations Act for the Department of Interior since 1990 that the statute of limitations on Indian trust mismanagement claims shall not run until the affected tribe has been given an appropriate accounting."

Justice Kennedy authored the majority opinion, which Roberts, Scalia, Thomas and Alito joined. Justice Sotomayor filed a separate opinion concurring in the judgment, in which Justice Breyer joined. In their view, the two suits filed by the Tribe not only were based on the same operative facts but overlapped in the relief they sought, making it unnecessary to hold, as the majority did, that the preclusive effect of Section 1500 applies solely based on the circumstance that the two suits are based on the same operative facts. Justice Ginsburg dissented, opining that the Nation's CFC action should be stayed pending resolution of the district court action.

HUD Announcing FY 2011 Indian Community Development Block Grant Availability
HUD has published the FY 2011 Notice of Funding Availability (NOFA) for the Indian Community Development Block Grant (ICDBG) program. The ICDBG Program is a set-aside portion of the larger Community Development Block Grant Program. Single-purpose grants may be used for a broad range of housing, infrastructure and economic development purposes targeted primarily for the benefit of low and moderate income persons, including housing rehabilitation, land acquisition to support new housing construction, roads, water, sewer and community buildings, as well as commercial, industrial and agricultural projects. ICDBG funds may be used for new construction of residential housing only as a last resort for relocation of displaced persons or for projects carried out by community-based development organizations. ICDBG funds can, however, be used for homeownership assistance to low and moderate-income households, including (1) subsidizing interest rates and mortgage principal amounts for low-and moderate-income homebuyers, (2) financing the acquisition by low-and moderate-income homebuyers of housing that they occupy, (3) providing down payment assistance to low-and moderate-income homebuyers, and (4) paying reasonable closing costs (normally associated with the purchase of a home) incurred by a low-or moderate-income homebuyer. The total approximate amount of funding available for the ICDBG program for FY 2011 is $64,870,000, including $3,952,080 reserved for Imminent Threat Grants.

ICDBG applications must be received by Grants.gov no later than 11:59:59 p.m. eastern time on June 15, 2011. Godfrey & Kahn has assisted tribes in preparing applications for ICDBG funds. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

New ADA Regulations Impose Requirements for ATMs
On September 15, 2010, the U.S. Department of Justice ("DOJ") issued a final rule amending the regulations under the Americans with Disabilities Act ("ADA") that govern places of "public accommodation, including casinos. The DOJ has issued new guidelines to implement the regulations, which essentially adopt the ADA Accessibility Guidelines that were issued by the DOJ in 2004. These guidelines cover automated teller machines ("ATMs"), along with a myriad of other facilities in public accommodations.

While tribes are expressly excluded from the employment-related provisions of Title I of the ADA, a federal appellate court has ruled that tribes are subject to the public accommodation provisions of Title III. Although tribal sovereign immunity protects tribes from lawsuit brought by private parties. the U.S. Department of Justice has enforcement authority.

The ADA regulations require public accommodations to implement so-called "auxiliary aids" at ATMs unless doing so would result in an "undue burden." Auxiliary aids include communication-related elements for handicapped people, such as speech-enabled capabilities and touch-readable keypads to assist visually impaired consumers. Existing ATMs must be retrofitted to meet the new standards for communication-related elements, unless doing so would be an undue burden. While the compliance date in the regulations is March 15, 2011, the DOJ has publicly stated that compliance will not be required until March 15, 2012. For more information, the bulletin published by G&K's financial institutions team at

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