"Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.

Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.

At page 20 of the transcript, Justice Breyer asked the following question:

Your basic point is this: You’re just saying it’s too bad, go to Congress. But you don’t deny the basic point, which is that an Indian tribe may think the Bureau of Indian Affairs has really mismanaged everything and what they would like is some money, and also they want an injunction so they won’t do it again.

And now your view is, it’s true, there is no way they can get that, because they have to go to two different courts, and really in your view they can’t go to two different courts, period."

Get the Story:
Initial Reaction to Tohono O’odham Argument (Turtle Talk 11/1)

Federal Circuit Decision:
Tohono O'odham Nation v US (March 16, 2009)

Related Stories:
Supreme Court to hear Tohono O'odham Nation trust case today (11/1)
Turtle Talk: Supreme Court singling out tribes for damage cases (10/14)
Supreme Court sets November 1 hearing for first Indian law case (09/29)
Supreme Court accepts Tohono O'odham trust law case (4/19)
Tribes working to keep cases away from Supreme Court (3/31)
Federal Circuit ruling in Tohono O'odham trust case (3/16)