SUMMARY OF ARGUMENT
The District Court erred in
granting dismissal of Plaintiff’s claims upon grounds they were barred by
sovereign immunity and a Statute of Limitations. Sovereign immunity and
Statutes of Limitation do not apply where two claims against the United
States were won by the plaintiffs before the Indian Claims Commission and
were reduced to a money judgment. After the judgment was funded by Congress
the money appropriated was entrusted to one of the United State’s agencies,
the Bureau of Indian Affairs, for safekeeping, investment and disbursement.
At all times since the United
State’s role went from that of debtor to trustee, the United States has
failed and refused to account for or disburse the funds of the plaintiff
that were entrusted to it.
The United States has a duty to
account for, safe keep, invest and distribute plaintiff’s money in
accordance with the provisions of the judgment that rendered the award. The
United States assumed the role of fiduciary and trustee. The fiduciary
duties assumed by the United States are current and ongoing. They are not
subject to any defense of sovereign immunity and no Statute of Limitations
barring enforcement of those duties has been tolled.
The nature of the claims
presented to the trial court are such that they are not subject to a defense
of governmental immunity or to any statute of limitations. This court
reviews a district court’s order granting a motion to dismiss de novo. Each
of the two issues raised should be reviewed de novo.
"When ruling on a motion to dismiss, the
district court must accept the allegations contained in the complaint as
true and all reasonable inferences from the complaint must be drawn in favor
of the nonmoving party. Hafley, 90 F.3d at 266. A complaint shall not be
dismissed for its failure to state a claim upon which relief can be granted
unless it appears beyond a reasonable doubt that plaintiff can prove no set
of facts in support of a claim entitling him to relief. Breedlove v.
Earthgrains Baking, 140 F.3d 797, 799 (8th Cir. 1998)." Young v. City of St.
Charles, 244 F.3d 623 (8th Cir. 2001).
An understanding of the history
of the claims is essential to identifying the nature of the claims. This is
not an action for money damages. It is an action asking for an accounting of
funds awarded to the plaintiffs by the Indian Claims Commission.
The first claim had its origin
in a Treaty of 1863. On October 2, 1863, appellant’s ancestors entered into
a Treaty with the United States of America. The Treaty was in response to
the pressure of homesteaders who sought to settle in western Minnesota and
eastern North Dakota. The homesteaders were in violation of federal statutes
that prohibit the taking of lands in which Indians have acquired ownership
rights through long-term use and occupancy. Under the statute (Section 12 of
the Indian Trade and Intercourse Act of June 30, 1834, 4 Stat. 729 -
codified in 25 U.S.C. 177), ownership of aboriginal lands cannot be divested
unless the United States enters into a Treaty with the Indian entity owning
those rights. By the Treaty of 1863 (App. p.92-95) the Little Shell Band
ceded their aboriginal claims to a large acreage in western Minnesota as
well as to a narrow strip along the west side of the Red River in North
By the time of the Treaty, to a
large extent, white settlers had already pushed the Little Shell out of
those lands. The Little Shell concern in 1863 was to preserve their
remaining aboriginal rights in 10-15 million acres of land further west in
what is now North Dakota. By the Treaty of 1863 the Little Shell agreed to
accept payments of money over 20 years along, with other benefits. That
money was never paid to them. In the 1950’s and 1960’s they pursued a claim
before the Indian Claims Commission in which they alleged the non-payment,
but also asserted the consideration that had been agreed to was not just
compensation. The Indian Claims Commission awarded $237,127.82.575. (App.
p.305-328.) At. 85 Stat 158 Congress funded the award. The present action
arises because, once again, the Little Shell never actually received the
funds. In this action they asked the lower Court to order an accounting and
requested the Court assume supervision of their judgment funds.
The second claim has it origin
in an award made to the plaintiffs by the Indian Claims Commission. This
award was based upon the fact the United States of American had never
compensated the Little Shell Band for the taking of about 10 million acres
of land to which their ancestors had gained rights of ownership by centuries
of use and occupancy.
The Treaty of 1863 had only
relieved the homestead pressures upon the Little Shell Band for a few
decades. The homesteaders pushed into the lands the Little Shell had not
ceded in 1863. By 1892 the federal government deemed it necessary to create
a Commission charged with responsibility to negotiate another Treaty by
which the Little Shell Band (and other bands) would give up approximately
ten million acres of land in North Dakota and move onto reservations.
Negotiations with the various
bands were held in 1892. Government representatives offered them a total of
ten cents an acre for ten million acres. The government promised these Bands
they would make installment payments on the money.
Chief Little Shell and his
braves walked out of negotiations with that Congressional Commission and
never returned. They did not believe 10 cents an acres was adequate. They
wanted a larger reservation than what was offered. The Commission staff
proceeded to enter into an agreement with other bands and with individual
Chippewa conscripted to sign. The Little Shell leadership was ignored. An
agreement presented to Congress without Little Shell consent. The Little
Shell protested vehemently to Congress and received no response. They
struggled unsuccessfully for decades to find a redress for this grievance.
Chief Little Shell died in
1901. In the 1930’s and early 1940’s his grandson, Thomas Little Shell,
became a driving force that caused Congress to create an Indian Claims
Commission (60 stat. 1049, 25 U.S.C. 70). The purpose of the Commission was
to hear and resolve Indian land claims like the Little Shell’s. The
existence of the Little Shell claim was expressly acknowledged in the
legislation that created this Commission. (Pub. L 79-726, 60 Stat. 1049, 25
The Little Shell Band filed
claims before the Indian Claims Commission asking they be compensation for
the taking of their land and for the non-payment of the amounts promised in
the Treaty of 1863. Other Bands that had signed the "McCumber Treaty" in
1892 also filed claims asserting that the treaty their ancestors had signed
had not provided fair compensation.
At the outset of that
litigation the government sought unsuccessfully to have the Little Shell
claims dismissed. The government claimed no such entity as the "Little Shell
Band" existed. The Court denied the motion and the Little Shell proceeded to
The claims of the Little Shell
and the various other Bands were consolidated for trial. Judgment was
entered in 1972. After offsets and attorney fees, an award of $47,376,622.93
was made to the claimants. (App. p. 477.)
The government appealed the
judgment. One of the prevailing claimants, the Turtle Mountain Band of
Chippewa, cross-appealed claiming the lower court erred in allowing the
Little Shell Band to have its own separate participation. The Turtle
Mountain Band claimed the Little Shell had been so completely assimilated
into their Band that they no longer existed as a separate, identifiable
entity. They asked that any Little Shell portion of the award be awarded to
the Turtle Mountain Band.
The Court of Claims disagreed
and expressly affirmed the Little Shell’s right to separate participation.
(App. p. 368-370.)
Ten years later, Congress
funded the award. (App. p. 329.) In doing so Congress identified five
entities entitled to share. In spite of the express findings of the Court
that the Little Shell were entitled to participate as a separate,
identifiable, historical entity, Congress did not specifically identify the
Little Shell as one of the five entities entitled to share in the award.
Congress created a new entity that had not participated in the litigation at
all. Congress called this new entity the "Non-member Pembina Chippewa
The award was funded and the
task of distributing it was delegated to the Bureau of Indian Affairs. In
carrying out the Congressional mandate the B.I.A. and its sub-agencies
refused to include the Little Shell Band in the distribution process. The
Little Shell were told they were not a recognized tribe and the B.I.A. had
no authority to deal with them. The Court of Claims, however, had dealt with
"But the Little Shell Chippewa’s need not have
formed a separate band or other organized entity in the 1892-1905 period in
order that an identifiable group of their descendants may bring this claim
separately." Turtle Mountain Band of Chippewa Indians, et al., 203 Ct. Cl.
At all times the funding
statutes and the regulations promulgated to implement the award were
interpreted to exclude participation of the Little Shell as a separate
identifiable entity. From the outset of the disbursement stage the
Commissioner of Indian Affairs advised the Bureau’s Area Directors that the
Little Shell did not exist as a separate entity. He maintained the Indian
Claims Commission did not know what they were doing and that the Court of
Claims on appeal had "blindly followed". (App. p.477.) Follow-through in the
field at the Area Offices and at the Turtle Mountain Agency was totally
consistent with that announced policy. No payments of judgment funds for
either claim have ever been made to the Little Shell Band.
The lower Court found that
plaintiff’s claim based upon the above facts was barred by the doctrine of
sovereign immunity. Whether "sovereign immunity" is a defense to an action
for an accounting of funds entrusted to an agency of the federal government
was one of the threshold issues in Cobell v. Babbitt, 30 F. Supp. 2d 24
(District of Columbia, 1988), affirmed on appeal at 345 U.S. App. D.C. 141,
240 F.3d 1081. Cobell, Id., found no immunity existed because immunity had
been waived by the Administrative Procedures Act, 5 U.S.C. Sec.
703. The lower Court here held appellant could not rely upon that Act
because the six-year statute of limitations had run.
This action is an equitable
action that asks for an accounting of money held in trust by the United
States of America. The entrustment took place years ago. Congress
appropriated the money to satisfy aboriginal land claims made by the lineal
descendants of an historical landowning entity. (App. p.329.)
"An action in a court of the United States
seeking relief other than money damages and stating a claim that an agency
or an officer or employee thereof acted or failed to act in an official
capacity or under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the Unites States… ." 5
But these plaintiffs need not
rely only upon 5 U.S.C. 702. Where the Federal Government has taken control
or accepted monies or properties belonging to an Indian entity, a fiduciary
relationship exists with respect to such monies or properties even though
nothing is said expressly in the authorizing or underlying statute (or other
fundamental document) about a trust fund, or a trust or fiduciary
connection. United States v. Mitchell ("Mitchell II"), 463 U.S. 206, 225, 77
L.Ed. 2d 580, 103 S.Ct. 2961 (1983) (quoting Navajo Tribe of Indians v.
United States, 224 Ct. Cl. 171, 183, 624 F. 2d 981 (1980).
"It is fundamental that an action for
accounting is an equitable claim and that courts of equity have original
jurisdiction to compel an accounting." Klamath and Modoc Tribes v. United
States, 174 Ct. Cl. 483, 487 (1966).
Cobell v. Babbitt, 30 F.Supp.
2d 24 (Dist of Col. 1989), aff’d 345 U.S. App. D.C. 141, 240 F.2d 1081,
involved responsibilities for trust funds as defined in a 1994 statute
relating to management of certain types of Indian Trust Funds. That statute
is not applicable here. But it is clear the funds involved here come within
the purview of both the case law and the common law related to the federal
government’s trust and fiduciary responsibilities to Indians.
In United States v. Dann, 470
U.S. 39 (1985), the Court was concerned that an award won by an Indian
entity in the Indian Claims Commission was placed in trust with the
government but the money never reached the claimants. The aggrieved
plaintiffs asserted that their claim had never been resolved and they wanted
to relitigate the claim. An appeals Court had agreed. The Supreme Court,
however, denied the plaintiffs such right holding that upon deposit of the
funds into trust "payment" had been made and the land claim was
But the Court went on to say
that the final award by the Indian Claims Commission had placed a new
responsibility upon the government with respect to the Tribe:
"The Government was at once a judgment debtor,
owing $26 million to the Tribe, and a trustee for the Tribe responsible for
ensuring that the money was put to productive use and ultimately distributed
in a manner consistent with the best interests of the Tribe. In short, the
Indian Claims Commission ordered the Government qua judgment debtor to pay
$26 million to the Government qua trustee for the Tribe as the beneficiary.
Once the money was deposited into the trust account, payment was effected. …
"In suggesting that significant obstacles to
the distribution of the money remain despite the transfer of the fund into a
trust account, the Court of Appeals failed to recognize the legal strictures
ensuring that the money will be applied to the benefit of the Tribe. We
have, for example, held that the United States, as a fiduciary, is obligated
to make the funds productive and is fully accountable if those funds are
converted or mismanaged. See, e. g., United States v. Mitchell, 463 U.S.
206, 226 (1983); United States v. Sioux Nation of Indians, 448 U.S. 371,
408-409 (1980); United States v. Shoshone Tribe, 304 U.S. 111, 115-116
(1938); Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937). (Emphasis
added.) United States v. Dann, Id.
In the past 15 years the
incompetence and mismanagement of funds that have been entrusted to the
Department of Interior and the Bureau of Indian Affairs has been publicly
exposed time and again. At the time the Court of Claims judgments were
affirmed in this case, Congress had been fully aware of the problem. In 1988
Congress held oversight hearings on Interior’s management of Indian funds.
These hearings led to a report, MISPLACED TRUST: THE BUREAU OF INDIAN
AFFAIRS MISMANAGEMENT OF INDIAN TRUST FUND, H.R.REP. NO 102-449 (1992). This
report harshly criticizes the Interior Department’s handling of Indian trust
funds. The report found
"significant, habitual problems in BIA’s
ability to fully and accurately account for trust fund moneys, to properly
discharge its fiduciary responsibilities, and to prudently manage the trust
In spite of this the Little
Shell’s money was placed in trust with the B.I.A. The Little Shell Band
waited over 100 years for judicial relief from the taking of their
aboriginal lands. They have now waited another 30 years for their award to
be delivered to them. The Executive Branch has failed and refused to honor
the rulings of the Judicial Branch.
In the early 1830’s the Courts
had enjoined the confiscation of Cherokee lands in Georgia. In 1833, in
direct defiance of the U.S. Supreme Court, President Andrew Jackson
"relocated" over 15,000 Cherokee Indians from their treaty lands in Georgia
transporting them to the unsettled, distant and remote territory of
Oklahoma. Over 4,000 of those Indians died in transit. (This is often
referred to as the "Trail of Tears".) Before ordering the removal, President
Jackson is purported to have said, "Justice John Marshall has made his
decision. Now let him enforce it."
Today it appears it is still
the position of the government that it doesn’t matter what the Indian Claims
Commission and the Court of Claims held. The B.I.A. has done what it wishes,
feeling there is nothing that can be done. The government asserts it is
immune from accountability. Contrary to the holding of the Indian Claims
Commission and Court of Claims, the Executive Branch of the United States
government insists to this day the lineal descendants of the Little Shell
Band have no separate rights of their own. When an agency of the federal
government delays performance of its legal obligation, a District Court is
justified in fashioning equitable relief to ensure the vindication of a
plaintiff’s rights" Cobell v. Gale Norton, 345 U.S. App. D.C. 1, 240 F. 3d
The lower Court suggests that
while this action cannot properly be brought against the United States of
America, it might be brought against others. In its Memorandum Opinion the
"In the present case the Plaintiff seeks relief
other than money damages just as in Babbitt, Id. However, Mr. Delorme has
not sued a federal agency or an officer or employee thereof for actions
taken in their official capacity. He has only sued the United States and not
any agency or official. The actions complained of are those of Congress
itself for not naming the Little Shells of North Dakota in the two public
laws which funded the judgment of the ICC." (App. p. 86.)
The Little Shell Band’s
grievance is with the United States of America. They prosecuted their
ancestral claim against the United States in Docket 18A and in Docket 221.
They won. The award was forwarded to Congress for funding. The money was
appropriated in P.L. 92-59 and disbursed. (App. p. 474.) It was entrusted
back to an agency of the United States government, the Bureau of Indian
Affairs, for investment, safekeeping and eventual distribution. No
accounting has ever been made to the Little Shell Band.
The Congress of the United
States has reserved unto itself the total right, responsibility and
obligation to see to it that rights expropriated from aboriginal peoples are
compensated and that the people entitled to receive that compensation
actually do so. If the United States places the money in trust with the
United States and the persons to whom it has entrusted the money steal it,
lose it, divert it or withhold it, the United States has not discharged its
fiduciary obligation of seeing to it that the money is held and disbursed
for the benefit of those entitled. It should not be the obligation of the
persons who won their claim in Court to chase down and collect trust money
that has been misapplied, mismanaged or wrongfully withheld.
Plaintiff brings this action
for an accounting because of not knowing whether the funds placed in trust
with the B.I.A. are safely held and invested or have been lost, stolen or
misapplied. The fiduciary duty owing to plaintiff to safe keep, invest and
disburse the money won before the Indian Claims Commission should be no less
of a duty than was found to exist when the B.I.A. assumed trustee
responsibilities for the income from Indian forest lands discussed in United
States v. Mitchell, 463 U.S. 206; 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983)
where the Court said:
"Our construction of these
statutes and regulations is reinforced by the undisputed existence of a
general trust relationship between the United States and the Indian people.
This Court has previously emphasized ‘the distinctive obligation of trust
incumbent upon the Government in its dealings with these dependent and
sometimes exploited people.’ Seminole Nation v. United States, 316 U.S. 286,
296 (1942). This principle has long dominated the Government's dealings with
Indians. United States v. Mason, 412 U.S. 391, 398 (1973); Minnesota v.
United States, 305 U.S. 382, 386 (1939); United States v. Shoshone Tribe,
304 U.S. 111, 117-118 (1938); United States v. Candelaria, 271 U.S. 432, 442
(1926); McKay v. Kalyton, 204 U.S. 458, 469 (1907); Minnesota v. Hitchcock,
185 U.S. 373, 396 (1902); United States v. Kagama, 118 U.S. 375, 382-384
(1886); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). Because the
statutes and regulations at issue in this case clearly establish fiduciary
obligations of the Government in the management and operation of Indian
lands and resources, they can fairly be interpreted as mandating
compensation by the Federal Government for damages sustained. Given the
existence of a trust relationship, it naturally follows that the Government
should be liable in damages for the breach of its fiduciary duties. It is
well established that a trustee is accountable in damages for breaches of
See Restatement (Second) of
Trusts §§ 205-212 (1959); G. Bogert, Law of Trusts and Trustees § 862 (2d
ed. 1965); 3 A. Scott, Law of Trusts § 205 (3d ed. 1967). This Court and
several other federal courts have consistently recognized that the existence
of a trust relationship between the United States and an Indian or Indian
tribe includes as a fundamental incident the right of an injured beneficiary
to sue the trustee for damages resulting from a breach of the trust. 1 n31
See, e. g., Seminole Nation v. United States, 316 U.S. 286, 295-300 (1942);
United States v. Creek Nation, 295 U.S. 103, 109-110 (1935); Moose v. United
States, 674 F.2d 1277, 1281 (CA9 1982); Whiskers v. United States, 600 F.2d
1332, 1335 (CA10 1979), cert. denied, 444 U.S. 1078 (1980); Coast Indian
Community v. United States, 213 Ct. Cl. 129, 152-156, 550 F.2d 639, 652-654
(1977); Cheyenne-Arapaho Tribes v. United States, 206 Ct. Cl. 340, 345, 512
F.2d 1390, 1392 (1975); Mason v. United States, 198 Ct. Cl. 599, 613-616,
461 F.2d 1364, 1372-1373 (1972), rev'd on other grounds, 412 U.S. 391
(1973); Navajo Tribe v. United States, 176 Ct. Cl. 502, 507, 364 F.2d 320,
322 (1966); Klamath & Modoc Tribes v. United States, 174 Ct. Cl. 483,
490-491 (1966); Menominee Tribe v. United States, 102 Ct. Cl. 555, 562, 59
F.Supp. 137, 140 (1945); Menominee Tribe v. United States, 101 Ct. Cl. 10,
18-20 (1944); Smith v. United States, 515 F.Supp. 56, 60 (ND Cal. 1978);
Manchester Band of Pomo Indians, Inc. v. United States, 363 F.Supp. 1238,
1243-1248 (ND Cal. 1973).
Once a plaintiff has shown that
the government has breached an obligation, the scope of a district court’s
equitable powers to remedy the wrong is broad. Breadth and flexibility are
inherent in equitable remedies. Swann v. Charlotte- Mecklenburg Bd of Educ.,
402 U.S. 1, 15, 28 L.Ed. 554, 91 S.Ct. 1267 (1971) The lower Court also held
sovereign immunity applies because the waiver provided by the Administrative
Procedures Act is time barred. The claims asserted here are for an
accounting of funds entrusted to an agency of the United States government.
Funds so entrusted are subject to an ongoing fiduciary duty requiring they
be accounted for, kept safe, invested and eventually distributed in
accordance with the Court of Claims mandates. United States v. Mitchell, 463
U.S. 206, 77 L.Ed.2d 580, 103 S.Ct. 2961 (1983). The Trust created to hold
these funds has continuing and ongoing fiduciary responsibility. There is
never a trigger date upon which a Statute of Limitations is tolled. There is
no logical argument that after some number of years the Trust dissolves and
the funds belong to the B.I.A.
After deciding to dismiss the
case, the lower Court went on to address the issue of "standing". The Court
said "standing" is not the basis of its decision but plaintiff feels the
issue must be dealt with none-the-less because it appears to be a challenge
to plaintiff’s right to present the issues being presented. The Court
comments that other than the assertions of Ronald Delorme, the hereditary
Chief of the Little Shell, there is nothing in the record to demonstrate
that Chief Delorme represents the Little Shell. The Court asserts it is
questionable at best whether Chief Delorme has standing to act on behalf of
the Little Shell Band.
The record contains a lengthy
affidavit of Chief Delorme that clearly establishes his standing to bring
this lawsuit. (App. p. 293-303.) The record does not contain anything other
than unsupported assertions to refute that sworn statement. A Rule 12 motion
is treated essentially as a Motion for Summary Judgment. In such instance
the Court should accept as true the unchallenged sworn assertions of
plaintiff when the defendant has offered nothing to refute them. If upon
remand there is an accounting ordered and funds are placed under the
supervision of the Court, there will be adequate place and time to sort out
the issue of who is an eligible Little Shell and who is not.
The lineal descendants of the
historical, landowning entity that won an award in the Courts are entitled
to have a share of that award distributed to its members. The B.I.A. has
held and distributed the lawsuit judgment funds as though the Little Shell
do not exist.
Unilateral actions of the
Executive Branch cannot eliminate Indian rights. Turtle Mountain Band of
Chippewa Indians, et. al. v. United States, 203 Ct. Cl. 426. The Little
Shell Band has never been given any right of participation in the lawsuit
award it succeeded in winning after years of litigation. They have been
given no voice in the construction of the rolls that designate who is
eligible to share in the award. They have been given no voice in the
procedures involved in the distribution of funds even thought the Court of
Claims noted expressly it was important each Band be allowed to prescribe
its own membership requirements.
(App. p. 369-370.) They have received no distribution of funds they won as
lineal descendants of the historical landowning entity.
Membership in the Little Shell
Band is not synonymous with being a "Nonmember Pembina Chippewa Descendant".
Chief Little Shell did not require that members of his Band be Pembina or
Chippewa. In like manner not all persons who are "Non-member Pembina
Chippewa Descendants" are lineal descendants of Chief Little Shell’s Band.
The re-defining of who should
be included as a recipient of the Court of Claims award has caused an
inclusion of those who did not win the award and an exclusion of those who
did. In addition, the exclusion of the Little Shell from the process allowed
an unmonitored enrollment campaign to take place that dramatically increased
the number of enrolled members of the Turtle Mountain Band immediately
following the Court of Claims award. This action substantially diluted the
value of a distribution mandated by Congress to be "per capita". Aside from
maximizing the combined total amount of award that would be received by that
reservation’s enrolled members, there were other reasons for the enrollment
campaign. The governing body of the Turtle Mountain Band was given the right
to retain 20% of all its enrolled members’ share of the award for
administrative, economic development and other social purposes. (App. p.
To add insult to injury,
distribution of the share that had been identified as belonging to the
"Non-member Pembina Chippewa Descendants" was made the responsibility of the
Turtle Mountain Band. This included assembling of the roll of names of the
"Non-member Pembina Chippewa Descendants" who would be eligible to share.
Thus the unsuccessful efforts made in Court to preclude the Little Shell
Band from participation in the award were effectively achieved by
The United States wears two
hats in this process. It is first a debtor and secondly a trustee. The
United States courts resolved the debtor issue with awards affirmed by the
Court of Claims. But the United States hasn’t followed with its trustee
responsibilities to see to it that the judgment funds were ever actually
delivered to the benefit of the Little Shell Band.
In the First Cause of Action,
appellant asked the United States to account for funds that were supposed to
be paid pursuant to the Treaty of 1863. Those funds quantified a land claim
and were awarded by the Indian Claims Commission in 1 Indian Claims
In the Second Cause of Action
(App. p.4-14.) appellant asked the government to account for funds owing to
the Little Shell Band for lands taken without just compensation. Those funds
quantified the land claim and were awarded by the Indian Claims Commission
In the Third Cause of Action
the Little Shell Band asked that if the statutes and regulations allowed for
exclusion of the Little Shell Band from participation, those Statutes and
regulations should be declared unconstitutional. To hold that the statutes
could ignore the Court judgments would violate Constitutional principals
related to the separation of powers. The government moved to dismiss the
Complaint. (App. p. 16-54.) Plaintiff filed a return (App. p. 55-56.) with
supporting affidavit of Chief Ronald Delorme (App. p. 292-303). The
government responded (App. p.57-58). Plaintiff responded thereto (App. p.
59-81). The lower Court dismissed the Complaint and denied plaintiff the
right to go forward on any of the causes of action citing the following:
1. The United States has not
waived its sovereign immunity as to any of the claims.
2. The claims are barred by a six-year statute of limitations.
3. Plaintiff failed to establish "standing" to assert the claims. (App.
None of the bases for dismissal
cited by the lower Court should withstand analysis.
As far back as the 1700’s the
Little Shell Band inhabited the woodland areas west of the Great Lakes in
what is now Michigan, Wisconsin, Minnesota and the Dakotas.
A series of treaties and
Congressional enactments declared it to be the general policy of the United
States that only Congress had the power to negotiate treaties whereby
Indians, with their consent, could be divested of their aboriginal rights.
Section 12 of the Indian Trade and Intercourse Act of June 30, 1834, 4 Stat.
729 (codified in 25 U.S.C. 177) proclaimed this policy as follows:
"No purchase, grant, lease or other conveyance
of lands, or of any title or claim thereto, from any Indian nation or tribe
of Indians, shall be of any validity in law or equity, unless the same be
made by treaty or convention entered into pursuant to the Constitution… ."
25 U.S.C. 177
The funding legislation for the
Little Shell’s award in the courts can be interpreted to say it was the
intent of Congress to exclude the Little Shell Band from the award even
though the Little Shell had won their separate claim in Docket No. 221. If
so interpreted the legislation violates the separation of powers established
by the United States Constitution. The plenary power of the United States
over Indians has never been extended by the courts to allow the United
States to appropriate the aboriginal rights of an Indian Band so that it
could give those rights to another. Lone Wolf v. Hitchcock, 187 U.S. 553,
561 (1903). No right that has been conferred upon Indians can be arbitrarily
abrogated by statute. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed.
The United States cannot
appropriate tribal lands and give them to another without rendering just
compensation. Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113, (1919).
Delaware Tribal Business
Committee v. Weeks, 430 U.S. 73 (1977), expressly lays to rest any idea that
issues of Indian rights are solely reserved for the Congress and that the
Courts have no jurisdiction to entertain them. That case holds expressly the
federal power over Indian affairs is rooted in the Constitution. The idea
that Congress has exclusive plenary power over such rights no longer exists
and no longer bars Courts from reaching the merits where constitutional
claims are raised by an Indian tribe.
The issue in this case need not
rise to Constitutional dimensions. Cobell v. Babbitt, 30 F. Supp. 2d 24
(Dist. of Col 1989), aff’d 345 U.S. App. D.C. 141, 249 F.2d 1081, finds
jurisdiction of the Courts in the trust relationship that exists between the
government and Indian tribes. This concept is grounded in the law of trusts,
not in the Constitution, and is now a source of enforceable rights that has
become a major weapon in the arsenal of Indian litigation. See Chambers,
Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan
L. Rev. 1213 (1975), a 1982 Handbook, supra note 3, at 220-21.
Weeks v. United States, 404 F.
Supp. 1325 (W.D. Okla. 1975) and Delaware Tribal Business Committee v.
Weeks, 430 U.S. 73 (1977), relied upon by the government are long and
complex cases and require careful analysis if the true holding is to be
identified. The facts of these cases are vastly different but do recite
important principles of law that are supportive of appellant’s position
Delaware Tribal Business
Committee, Id., makes it clear the power of Congress over Indian affairs may
be plenary in nature but it is not absolute. See, i.e., United States v.
Alcea Band of Tillamooks, 329 U.S. 40, 54 (1951). The case notes that
Congress has plenary power over matters related to Indian affairs but that
does not mean that all federal legislation concerning Indians is immune from
judicial scrutiny. The case notes the fact Congress has plenary powers "has
not deterred the Courts in this day from scrutinizing Indian legislation to
determine whether it violates the equal protection component of the Fifth
Amendment.", citing Morton v Mancari, 417 U.S. 535 (1974).
The Delaware case says the
appropriate standard of judicial review is that the legislative judgment
should not be disturbed as long as the special treatment that appears to
have been given can be rationally tied to the fulfillment of some unique
obligation Congress has toward Indians. Morton, Id.
In Delaware, there was an
explicit finding that the omission of the Kansas Delaware from a
distribution of an Indian Claims Commission award was "rationally tied" to
the fulfillment of a "unique obligation" of the Congress toward the Indians.
In the present case there is no rational basis from which it can be argued
that an exclusion of the Little Shell Band from the proceeds of their own
judgment somehow is tied to some unique obligation of Congress toward
The analysis of the majority in
the Delaware case was as follows:
1. In the Delaware case, only
one tribal entity prosecuted a claim before the Indian Claims Commission.
That entity was "The Delaware Nation". The Court found that entity had
represented all of the Delaware. The Court found the Indian Court of Claims
could only adjudicate claims held by an "Indian tribe, band, or other
identifiable group". In the present, case none of the other plaintiffs
represented the interests of the Little Shell Band. Indeed, one of those
coplaintiffs did everything it could to defeat the Little Shell claim. The
Court found the Turtle Mountain Band did not represent the interests of all
lineal descendants of the Little Shell Band. Consequently the Delaware case
has no factual identity to the present as the Little Shell Band was
expressly found to be a separate identifiable ancestral group with its own
separate right to participate in the litigation.
2. In the Delaware Nation case
the Act authorizing distribution specifically provided that payment would be
made to the Delaware tribe of Indians residing in the Cherokee Nation "as
said tribe shall in council direct." The Court said the language of the Act
emphasized the clear intention of Congress that the money awarded was for
the Delaware tribe as distinguished from being an award to individual
Delaware Indians who had severed their relations with that tribe. Such is
clearly not analogous to the present case. Here the Act expressly created a
"Non-Member Pembina Descendant’s" entity. This is an entity separate and
distinct from the other plaintiffs who were federally recognized Chippewa
3. In the Delaware case, the
Court said it believed Congress deliberately limited the distribution plan
because of substantial problems it perceived would attend if a scheme of
wider distribution were devised. This is also clearly not the case here.
Indeed, if the Act is read to include more persons than the lineal
descendants of the Little Shell Band who prosecuted the claim distribution,
problems are enhanced by the fact that the number of persons entitled to
share is greatly expanded to include anyone who might establish that he or
she is a Pembina descendant regardless of whether his or her ancestors were
ever associated with the Little Shell Band.
In Delaware, the Court said:
"Congress chose to limit distribution of the
award to the Cherokee and the Absentee Delaware’s’ in whose names the
Delaware’s’ claim had been prosecuted before the Indian Claims Commission,
and whom the Commission had found to represent the interests of all the
Delaware’s". (Emphasis added) Delaware Tribal Business Committee v. Weeks,
Here the opposite circumstance
is true. The Turtle Mountain Band did not prosecute the Little Shell claims.
The Turtle Mountain Band and its lawyers became the Little Shell Band’s
adversary during this litigation. The Little Shell Band’s claims were not
based upon the same historical facts as the claims of the Turtle Mountain
Band. Their claims were not coincidental with all "Non-Member Pembina
Chippewa". The Turtle Mountain Band went to Court claiming its ancestors
sold out too cheaply. The Little Shell Band went to Court claiming its
ancestors had never sold out at all.
The legal authority relied upon
by the trial court actually supports the appellant’s position in this case
but we also wish to note the blistering dissent of Justice Stevens in
Delaware Tribal Business Commission v. Weeks, supra. Justice Stevens
examines each of the reasons the majority gave for its decision and proceeds
to demonstrate the fallacy inherent in each reason.
He first points out that the
exclusion of the Kansas Delaware from the distribution plan was a
consequence of a malfunction of the legislative process, not a deliberate
choice of Congress. The same conceivably might be said here. In support of
this he noted that nothing in the legislative history indicated that
Congress was ever made aware that the language of its Act would exclude
persons who were in fact lineal descendants of the aboriginal landowning
Next he noted the majority
found it significant that the Kansas Delaware who were complaining they had
been excluded from participation had terminated their membership in the
tribe. But in response to this reasoning, Justice Stevens pointed out that
the Cherokees, one of the entities that were being allowed to share, had
also terminated their membership, so how could that be a basis of any
Next he noted the majority
found it significant the Kansas Delaware had not participated in a previous
award and the majority somehow felt this was evidence of a trend and they
should not be allowed to participate now. But Justice Stevens pointed out
again the hypocrisy of that since a group known as the Absentee Delaware
were being allowed to share even though they, too, had also been excluded
from that same previous award. Here there is a similar hypocrisy. The Little
Shell of Montana have been allowed to participate as a Band in the award.
In this case the statute need
not be read to exclude the Little Shell. When dealing with Indians,
Congressional enactments are to be liberally construed in favor of the
Indians. Doubtful expressions, instead of being resolved in favor of the
United States, are to be resolved against it. Choate v. Trapp, 224 U.S. 665,
32 S.Ct. 565, 56 L.Ed 941 (1912). The funding legislation here listed four
separate entities that would share the award. These were The Turtle Mountain
Band of Chippewa Indians, The Chippewa Cree Tribe of Rocky Boy’s
Reservation, The Minnesota Chippewa Tribe (White Earth Reservation) and the
nonmember Pembina Chippewa descendants.
If the party designated as the
"Nonmember Pembina Chippewa Descendants" is read to be synonymous with
Little Shell Band, the legislation might be considered as constitutional.
But such a reading would have required that the Little Shell Band be allowed
to participate in determining the eligibility roll, be entitled to challenge
the dilution of the per share award by a large, last minute enrollment at
Turtle Mountain, and be entitled to be involved in the timing, process and
procedure by which the award would be distributed.
As a result of the language
used by Congress to designate the claimants entitled to share, however, the
Department of Interior saw an opportunity to accomplish administratively
what it had been unable to accomplish in courts. The end result has been
that the Little Shell Band as a separate, identifiable, historical "entity"
was never given due process or a voice in the identification of its own
lineal descendants eligible to share in the award. Neither have they been
given any opportunity to challenge the substantial increase in "enrolled
members" of Turtle Mountain tribe after the Indian Claims Commission had
made the award. The statutes, the CFR’s, administrative decisions and the
actual processing of the claim have all been interpreted at all levels of
the Executive Branch to exclude the Little Shell from all participation.
Unlike the other plaintiffs in
the lawsuits with whom the Little Shell were joined for trial, the Little
Shell cause of action included the fact their lands had been taken without
any treaty with the United States. The Little Shell had the strongest claim
of all. Theirs was not just a claim they had been underpaid. They had been
paid nothing at all.
The Commissioner of Indian
Affairs, William E. Hallett, jumped at the language of the Congressional
funding as a justification to exclude the Little Shell as a separate
ancestral entity. In a letter to the Aberdeen Area Office of the B.I.A. on
August 19, 1980 (App. p. 475-491) designed to instruct the Area Directors on
who should share, he wrote:
"Blindly following the Indian Claims
Commission, the Court of Claims in its decision in the subject claims case
of January 23, 1974, refers to the Little Shell Band as plaintiffs in Docket
Nos. 191 and 221 and in a footnote describes the entity as being also known
as the Chippewa Cree Tribe." ….
"We find, as also demonstrated below,
unacceptable the implication, at least, that Chippewa Cree tribal members
are not Pembina or are less Pembina than the individuals forming the "Little
Shell Band". Letter from Charles E. Hallett to Area Directors, August 19,
The historical record is clear
that when the BIA and the Turtle Mountain Band of Chippewa were unable to
convince the Courts that the Little Shell Band was not a distinct ancestral
group entitled to its own separate participation, the Commissioner of Indian
Affairs administratively interpreted and enforced the rights of the parties
in exactly the manner the government and the Turtle Mountain Band had argued
in Court and lost.
The tone of the Commissioner’s
13-page letter to the Area Director makes it clear the Area Director is
expected to ignore the "unacceptable" decision of the Court of Claims
because it had blindly followed the erroneous decision of the Indian Claims
With such instructions from the
top it is little wonder that when Ronald Delorme, present Chief of the
Little Shell Band, inquired as to the status of the Little Shell award he
was told only this:
"The award in dockets numbered 113, 191, 211,
and 246 was made for the 1905 value of Pembina lands west of the Red River
area ceded to the United States by agreement approved by Congress on April
21, 1904, and by the Pembina on February 15, 1905." (App. p. 492.) Letter of
April 6, 1987, Deputy to the Assistant Secretary of Indian Affairs.)
The Assistant Secretary’s above
references to Docket numbers totally excludes Docket # 221, the Little Shell
claim. But the judgment money entrusted to the B.I.A. included that which
was awarded in Docket 221. The Bureau continued to act as though the Little
Shell claim does not exist. The reference to an agreement by which "Pembina"
had ceded lands west of the Red River could not have been a reference to the
Little Shell as they had not ceded anything. In that same letter the
Assistant Secretary expressly rejects the findings made by the Indian Claims
Commission and by the Court of Claims. The Deputy to the Assistant Secretary
for Indian Affairs (Tribal Services) wrote:
"The Bureau’s opinion is that the Turtle
Mountain Band of Chippewa Indians is a tribal successor to the Pembina Band
of the period 1892-1905 and earlier. There is no evidence that the present
members of the Turtle Mountain Band do not derive from ancestors who
themselves derive from the Red River-Turtle Mountain homeland and the Plains
Ojibwa societies associated with that area." (App. p. 492.)
This was exactly the same
argument unsuccessfully made before the Indian Claims Commission and the
Court of Claims.
After Congress funded the
award, the money was deposited in a B.I.A. Trust Account to await
distribution. Rolls of eligible recipients were constructed. A plan for
distribution was created. Neither the Chief of The Little Shell nor his
Grand Council were ever afforded any input into the construction of the
rolls, the application date requirements, the eligibility requirements, the
supporting documentation that would be required, or any other aspect of the
plan that was adopted and carried out.
The B.I.A.’s Superintendent of
the Turtle Mountain Agency called for applications by "Non-member Pembina
Chippewa Descendants". Some Little Shell lineal descendants applied. Some
did not. Eventually, on January 21, 1994, the Agency Superintendent
certified a roll of persons who had applied by a deadline date the Agency
had adopted. (App. p. 501.)
Those found to meet certain
blood quantum requirements and to have submitted satisfactory genealogy
Pembina-Chippewa documentation were declared eligible to share in the award.
"Enrolled members" of the Turtle Mountain tribe did not need to submit
anything. They were deemed eligible by reason of being "enrolled members"
without regard to who they were or where they came from.
The government alleged that
Ronald Delorme, the current Chief, himself applied and participated in a
distribution. The lower Court accepted that assertion and questioned whether
because of it he now had no "standing" to complain. Whether he did or did
not is irrelevant to the prosecution of these claims. As hereditary Chief,
Ronald Delorme represents the ancestral entity that prevailed in Court. The
descendants of that ancestral entity now own the claim. That entity has
never received the compensation awarded to it. As for the claim that Delorme
participated in a distribution, even if true, does not preclude him nor any
of other current member of the Little Shell Band from participating in a
distribution to the Little Shell Band as long as they are no longer members
of the Turtle Mountain Band. (App. p. 499.)
The lineal descendants of the
Little Shell Band do not know today what happened to the award they won.
There is evidence the B.I.A. retains it in whole or in part. Chief Delorme
has obtained copies of spreadsheets that purport to show an initial deposit
of $47,352,407.66 from the Treasury of The United States into a B.I.A. trust
account. (App. p. 474.) With interest or investments this amount appears to
have grown initially to $105,055,350.84 (App. p. 494). By the time
distributions began to be made in 1988 there may have been as much as
$130,920,786.50 held in trust. (App. p. 495).
On the Spread Sheet for January
12, 1994 (App. p. 495), there is an entry reciting $17,858, 352.10 under a
column entitled "Non Member Pembina Lineal Descendants". In this lawsuit
plaintiff seeks an accounting that would show what disposition, if any, has
been made of these funds, what amounts remain, what investments have been
made, what disbursements have been made from these funds, when and to whom
the disbursements have been made.
If there is an accounting, the
lower court should be able to enter an appropriate order taking custody of
the funds that belong to the Little Shell Band and establish a structure for
future safekeeping and distribution of the award to those who are eligible.
The lower Court erred when it
dismissed the Little Shell Band’s claims in response to a Rule 12 F.R.Cv.P.
Motion to Dismiss based upon defenses of Sovereign Immunity, Statute of
Limitation and Standing. None of those defenses are applicable in an action
for an accounting of funds over which the United States has assumed a role
as fiduciary and trustee. The United States’s fiduciary duty to account and
to safe keep, invest and distribute those funds pursuant to a judgment of
the Indian Court of Claims is continuing, ongoing, and current. The lower
Court’s challenge to "standing" is vague, equivocal, and admittedly not a
basis of its decision. Plaintiff presented the basis of his right of
representation of the Little Shell Band’s interest by affidavit and nothing
was submitted by the government to refute the evidence submitted in that
The case should be remanded
with instructions that an accounting by the United States should be ordered
and for such other actions as may be necessary to enforce the Little Shell
Band’s rights to participate in the awards it won before the Indian Claims
Dated this ________ day of January 2003.
IRVIN B. NODLAND, P.C.
Attorney for Plaintiff (s)
P. O. Box 640
Bismarck, ND 58502-0640