United States v. Tohono O'odham Nation

Brief of the National Association of Home Builders as Amicus Curiae in Support of the Respondent


For more than a century, the federal government has held substantial funds and 2.9 million acres of land in Arizona in trust for the Tohono O'odham Nation. In United States v. Tohono O'odham Nation, No. 09-846 (cert. granted 5/19/2010), the Supreme Court is considering whether the Court of Federal Claims has jurisdiction over the the Nation's claim against the federal government for damages under the Indian Tucker Act for alleged breaches of the government's fiduciary duties to the Nation.

The government asserted the CFC was deprived of jurisdiction because the Nation earlier had filed a separate lawsuit in the D.C. District Court, seeking from the government an accounting of the Nation's trust assets. The government based its motion to dismiss the CFC complaint on 28 U.S.C. § 1500, which deprives the CFC of jurisdiction if "any claim for or in respect to which the plaintiff or his assignee" is pending in another court.

The CFC agreed that the District Court action for an accounting was a "claim for or in respect to which" the Nation had pending, and dismissed the CFC damages action. The Federal Circuit, in a 2-1 opinion reversed, holding that the Nation's CFC complaint seeks different relief than the district court action, and thus § 1500 did not deprive the CFC of jurisdiction. On April 19, 2010, the Supreme Court agreed to review the case.

The Government’s reading of section 1500 traps plaintiffs in many contexts in a jurisdictional "gotcha." This brief focuses on one of those contexts, regulatory takings, to illustrate that the Government's interpretation of section 1500 cannot be correct. The Government's reading of the statute would force private property owners into a quandary: either they must forfeit their ability to challenge the validity of the regulation, or they must risk losing their rights to seek just compensation. Such a construction of the statute, in addition to being inequitable, raises serious constitutional concerns.

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Reference Info:Appellate Brief | Federal, U.S. Supreme Court | United States

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