Document Type
Article
Publication Date
1992
Publication Information
41 AM. U. L. REV. 753 (1992)
Abstract
The Federal Circuit reviews Indian claims because Congress combined the former Court of Claims, which had jurisdiction over Indian claims, with the Court of Patent and Customs Appeals to create the new Claims Court. The jurisdiction of the Court of Claims also included some patent cases as well as tax, contract, pay suits, takings cases, and congressional reference cases. Congress added the Court of Claims to this mix in part to counter the argument that the two new courts, the Claims Court and the Federal Circuit, would become overly specialized.
Indian claims comprise only a tiny portion of the jurisdiction of the Federal Circuit in terms of numbers of cases. Nevertheless, money judgments in Indian claims often involve millions of dollars. That a small number of cases involving tricky points of law expose the Government to enormous liability should be enough to make anyone pause to consider how well Indian claims are treated by this system. Yet, the fact that Indian claims formed no part of the considerations that impelled the creation of the new courts does not necessarily mean that the new courts serve them ill. In fact, very little has changed about the way Indian cases are litigated in these courts. The thesis of this Article is not that the new system is worse than the old system, but that the system as a whole suffers from structural problems creating a perception among some Indian people and advocates for Indian tribal rights that the Indian claims court system is rigged. That is, it is rigged to favor the Government and to reward financially the small group of attorneys who specialize in these matters without enriching, in any real way, the day-to-day existence of tribal people. Conversely, others paint a somewhat more positive and pragmatic picture of the Indian claims court system as proof that the United States continues to try its best to foster and support Indian tribes. As always, the truth lies somewhere in between. While rejecting the rosy view and recognizing that there are solid grounds for distrust of the system, I argue that a greater understanding of the structural deficits will result in better process decisions by tribal advocates and Indian tribes. I define structural issues as those that the tribal advocate cannot change, such as the fact the claims courts can only award damages. Process issues are those that the advocate and the tribe can affect, including the selection of legal theories, the selection of the appropriate forum, and decisions regarding the appropriate roles of litigation, negotiations, and congressional intervention to resolve disputes between tribes and the Federal Government.
Recommended Citation
Nell J. Newton,
Indian Claims in the Courts of the Conqueror,
41 AM. U. L. REV. 753 (1992).
Available at:
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