Substantive Inquiries and Responses. 

Below are questions that were recently asked by competitors and the responses.


1) The fact pattern leads me to believe that the parties to the case at hand are the State of Molokini v. Secretary of the Interior… not including the Native Molokinian Government. Is this a correct presumption?   The Native Molokinian Government is not a party to this action.

2) Did the Native Molokinian Government include their decision to offer membership to adopted children in their constitution?    Yes.

3) How did the OFA recognition process include recognition of the membership for adopted children if it was not in the tribes constitution?   See answer to question 2.

4) If (as the problem states) the Native Molokinian Government's constitution originally included the requirement that "membership consists of individuals who descend from a historical Indian tribe" did the Native Molokinian Government later amend their constitution to reflect the decision to add adopted children after OFA recognition process?"    The problem does not state that the Native Molokinian Government's constitution originally included a requirement that "membership consists of individuals who descend from a historical Indian tribe. See answer to question 2.

5) Do we use current case law for events in the future? i.e. pending legislation would still be pending etc.   Use current case law unless it has been superseded by future law as described in the problem

6) Is Hawaii a PL280 state in the future?    Hawaii is not involved in this problem, and the State of Molokini is not a PL 280 state.

7) Is the IRA to apply to these tribal nations in the future?    The IRA applies to these tribal nations as it would to any other federally recognized Indian tribe recognized through the OFA process or congressional recognition.

8) Were both the Native Molokinian Government and Molokini Nation considered a sovereign nation federally recognized under the provisions of the Indian Reorganization Act of 1934?   See answer to question 7.

9) Is this an assertion or a statement of fact: “the state has conceded that the Native Molokinian Government meets all other criteria for acknowledgement through the OFA process, including classification as an “Indian group” and demonstration of government continuity.”?   It is a statement of fact.

10) Is it an assertion or a statement of fact that the “resulting Native Molokinian body politic” is considered the active tribal government of the Native Molokinian Government? Or something else?   It is a statement of fact.

11) Is it an assertion or a statement of fact that the amendments in the future, year 2013, to the Indian Reorganization Act apply both to 25 USC section 465 and section 467? Is this effectively the Carcieri fix that is currently pending?   It is a statement of fact that the 2013 amendments "fixed" Carcieri by amending the IRA to reaffirm the Secretary's authority to take land into trust for "all federally recognized Indian tribes."

12) Is the 1921 US Congress homesteading legislation analogous to existing legislation? Yes.

13) Is the 1921 Molokinian Homestead Act analogous to existing legislation?   See answer to question no. 12.

14) Were the enrolled qualified Native Molokinians state-recognized after the Native Molokinan Roll Commission completed its work of compiling the roll of qualified Native Molokinans?    The members of the qualified Native Molokinian roll, and their descendants, were acknowledged by the State of Molokini as the indigenous, aboriginal, maoli population of Molokini once the roll was completed, but no formal government-to-government relationship was formed between the Native Molokinian Government and the State of Molokini upon completion of the roll.

15) Can you please confirm that paragraph 1 on page 3 amounts to an amendment to 25 CFR Part 83.3(a)?  Yes.

16)  Can you please clarify paragraph 4 of page 1: ""the United State transferred its trust obligations under the 1921 Molokinian Homestead Act to the new Molokini Government, consistent with the transfer of Federal Jurisdiction to the several states that characterized the period""
- Did this ""transfer"" occur at the same time as Molokini's admission into the Union (similar to Hawaii's Admission Act 73 Stat 4)?
OR,
did the ""transfer"" occur as the result of a separate Act of Congress?

- Did the United States maintain an ownership interest in the land base created by the Homestead Act? Said differently, does the U.S. or the State currently hold legal title to the land based allocated by the Homestead Act? Is the land still held in trust (either by the State or the
US) for the Native Molokinians?
  The transfer occurred at the same time as Molokini's admission into the Union (similar to the Hawai'i AdmissionAct); legal title to the homestead land is held by the State of Molokini and the trust is administered by the State.

17)  Can you please provide the dates that correspond with the proceduralhistory? Including, the current year?  The years and dates of relevant events are stated in the fact pattern; the current year of the proceedings before the U.S. Supreme Court is 2022.

18)  Can you please explain what this means: "the Commission... dissolves as required by Act 200" (Record at 2). Specifically, what part of the Act required the Commission to dissolved and under what circumstances?  After the initial roll of qualified Native Molokinians was completed, there was no other task for the Native Molokinian Roll Commission and thus, pursuant to Act 200, it dissolved.

19) When the State petitioned the Interior Board of Indian Appeals, did it file a request for consideration of the Interior's decision to grant the Native Molokinian Government's petition for acknowledgment through 25 CFR Part 83? Or, did the State only appeal the DOI's decision to take the land into trust?  Please see the second full paragraph on page 4 of the fact pattern.

20)  Footnote 2 on page 4 says that the State has conceded all other criteria for acknowledgment through the OFA process. Does this mean the that State has conceded 25 CFR Part 83.7(g) (or, that the Native Molokinian Government was never terminated by an act of Congress)?  Yes. This means that the state concedes that, at the time the Native Molokinian Government was acknowledged through the OFA process, it had not been terminated by an act of Congress.

21)  How many members of the Native Molokinian Government are adopted?  For purposes of the competition, the number of adopted 18 year-olds (or older) is not important.

22)  Do the elders of the Native Molokinian Government recognized adopted children as descendants?  See the last sentence of page 2 of the fact pattern.

23)  Did the Governor bring suit under the Administrative Procedures Act?  Yes.

If so, did he/she bring two separate claims?--one challenging the OFA decision and another challenging the decision to take land into trust? Or,
just one claim?--taking land into trust?
  It is undisputed that the Governor met all procedural requirements for filing appeals at both the IBIA and federal levels and that the substantive issues are properly before the Court. Providing more detailed information is likely to compromise a competitor's ability and responsibility to determine which legal theories best support the Governor's challenge to the Secretary's decision to take land into trust for the Native Molokinian Government and is beyond the scope of this question and answer resource.

24)  What tribal entity oversaw tribal issues such as membership, adoption, etc between 1921 and 1959 and again from statehood to Act 200? In other words, who did the State authorize and deal with to complete a membership roll?  Please see the last full paragraph on page 1.

25)  We are writing out our "Facts" section of the brief and would like to cite to the problem. Can you recommend a format on citation for facts? We've looked at briefs from past years and have not been able to discern any real standard form. Thank you!  We do not recommend a particular format; use a format that you believe is appropriate.

26)  Did the Native Molokinian Roll Commission consist of Native Molokinians? Exclusively? In addition to others?  This is irrelevant for purposes of the fact pattern; assume that the Roll Commission did its job thoroughly and accurately and that there have been no legal challenges to the Roll CommissionĘ»s work or to the "roll of qualified Native Molokinians" that it compiled.

27)  For teams that submit the brief electronically, how will the ""font, footnotes, binding"" component on the scoresheet be addressed? Will online submission affect the ability to receive the full points as determined by Rule 8.1(d)?  Thank you!  Since the electronic brief is not "bound" we expect the rules to apply to the font and footnotes since electronic submissions will not affect fonts or footnotes. Online submissions do not affect the ability to receive full points since all teams are expected to submit briefs electronically." 

28)  When the problem says on page 1 paragraph 2, "the act itself has been interpreted..." Who makes this interpretation?   The Supreme Court of the State of Molokini and the 9th Cir. Court of Appeals have so stated, the U.S. Supreme Court has never addressed the issue.

29)  What entity or entities oversaw tribal governance and issues from 1959-Act 200 for disbursement, cultural issues, etc? who did the state deal with? Please see the last full paragraph on p. 1.

30) On what date did the Governor challenge the Secretary's decision, in the Interior Board of Indian Appeals, to accept the 50,000 acres into trust?  It is undisputed that the Governor met all procedural requirements for filing appeals at both the IBIA and federal levels and that the substantive issues are properly before the Court.  The Governor filed the appeal to the IBIA on February 1, 2017, well within the time period for filing the notice of appeal.

31)  Is it an assertion or a statement of fact that the State of Molokini's senator enacted the Molokini Nation Reorganization Act to divide the Native Molokinians and frustrate their efforts to achieve self-governance? Can we include this as part of his intent or the intent of the Act?
The Senator from the State of Molokini stated, in her remarks introducing the legislation that eventually became the Molokini Nation Reorganization Act, that she believed the act was necessary in order to ensure that the State of Molokini’s interests were protected and to “check this outrageous jurisdiction and land grab” by the administratively recognized Native Molokinian Government. Although the Senator is widely known as opposing Native sovereignty, these are the only public statements that she has made about the Molokini Nation Reorganization Act.

32)  Which sections of the problem should be cited when included in the statement of the case. I'm guessing the language of the particular acts should be; but should the procedural history also be cited?  Please use your own judgment in deciding how to structure your brief and include whatever you believe is appropriate.

33)  What funds were used to purchase the land and in what name was title taken?  The funds used to purchase the land were Native Molokinian Government funds. At the time of purchase, title was taken by the Native Molokinian Government.

34)  Did the State of Molokini ever acknowledge the roll/members after the referendum vote that included adopted children?  Please see page 3 paragraph 3 of the fact pattern.

35) One what date did the Native Molokinian Government submit its petition to the OFA?  The petition submission date to the OFA is not an issue. Please see footnote 2 on page 4.

36)  Is the cover page meant to be in color as required by the Supreme Court rules for the pdf?  No

37)  I would like some clarification on the fact pattern regarding the OFA amendments to the recognition process. Pg. 3, Para. 1 states that the OFA "substantially amended" the recognition process to include as "Indian Groups" all Native peoples within the asserted territory of the United States....

My question is whether we are to understand that OFA substantially amended the definition of "Indian Groups" only or if we should understand the facts as indicating that all of the terms defined in the CFR which reference "Indians" have been determined by OFA to include Native peoples within the territories. 
All of the terms defined in the CFR which reference "Indians" now include Native peoples within the asserted territory of the United States.

38)  Was the Native Molokinian Government's constitution adopted as an IRA constitution?  No. However, it is undisputed that the Secretary's authority to take land into trust for "all federally recognized Indian tribes" applies equally to tribes with IRA constitutions and tribes with non-IRA constitutions.

39)  Were the 50,000 acres on-reservation or off-reservation lands?  Nothing in the fact-pattern states that the Native Molokinian Government has reservation lands.

40)  What are the complete list of parties to the case on the State of Molokini's side? Is the Dep't of the Interior the only federal party to this case? Is the United States Congress a party to this case? Is the Legislature of Molokini a party to this case?  The complete list of parties to the case on the State of Molokini's side includes the Governor of Molokini and the State of Molokini. The Department of the Interior is the only federal party to this case (i.e., the Secretary of the Interior and other officials within the Department of Interior are the Respondents). Neither the United States Congress nor the Legislature of Molokini is a party.

41)  Where are copies of previous competition briefs posted?  This is the first year National NALSA is requiring electronically submitted briefs and we know of no location where previous competition briefs may be posted.

42)  The problem states that the Native Molokinian Government purchased 50,000 acres of "former Native Molokinian lands." Does that refer to trust land that was transferred under the 1921 Molokinian Homestead Act, or does that refer to land that previously belonged to the Native Molokinians before territorial incorporation?  The 50,000 acres of "former Native Molokinian lands" refers to lands that once belonged to the Native Molokinians before territorial incorporation as part of the U.S.

43)  When and where will the briefs be posted online?  The posting of briefs online is a new rule (Rule 8.2(c)) and we're currently unsure how it will be implemented this year.  The rule currently states that the briefs will be posted on the National NALSA website or the host school's site at some time prior to the start of oral arguments.  More than fifty teams submitted briefs.  As you can imagine, posting more than 50 briefs will consume a lot of memory/space on a server.  We will work with National NALSA to determine how to implement the rule.
 

44)  The problem notes on page 3, paragraph 1, that the process for tribal recognition was "substantially amended and expanded" in 2013. Was that change a legislative one made by Congress, or an administrative change made by the OFA?  An administrative change.

45)  Regarding Q&A #30 above, "On what date did the Governor challenge the Secretary's decision, in the Interior Board of Indian Appeals, to accept the 50,000 acres into trust? It is undisputed that the Governor met all procedural requirements for filing appeals at both the IBIA and federal levels and that the substantive issues are properly before the Court. The Governor filed the appeal to the IBIA on February 1, 2017, well within the time period for filing the notice of appeal." So, does Answer 30 above mean the Quiet Title Act does not apply? (Patchak v. Salazar)   The response to #30 means that the Governor did not miss any filing deadlines or other filing requirements, and that the students should be prepared to argue the merits of the case before the Court (i.e., discuss the substantive issues explicitly raised in (1) and (2) on page 4 of the problem). There is no intent to suggest that competitors cannot also make procedural arguments based on the Quiet Title Act or any other law that the students deem relevant. However, it would be wise, for preparation purposes, to assume that a procedural argument will not prevent the Court from reaching the merits of the case.
 

  Do You Have An Inquiry To Submit?
Please be sure your question hasn't already been asked and that the answer to your question is not in the fact pattern. 
Substantive inquiries will be accepted until February 13. 


 

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