History of the
Little Shell Pembina Band since 1863
Aboriginal land ownership rights of Indians cannot be
divested unless there is a treaty with the United States. Appellant here,
the lineal descendants of an aboriginal band of Indians, established rights
to Minnesota and North Dakota lands by centuries of use and occupancy. In
1863 by Treaty they ceded their interest in a large acreage of Minnesota and
a small strip in North Dakota. The consideration promised by the United
States was never paid. Forty years ago they brought an action before the
Indian Claims Commission. They were awarded approximately $237,000. Their
rights in about 10 million acres of ancestral lands in North Dakota were
taken without a Treaty or payment. Other bands with somewhat similar
interests were joined. Plaintiffs were awarded approximately $47,000,000.
Both judgments were funded by Congress and the money entrusted to the Bureau
of Indian Affairs. The Little Shell have never received their portion of
either of these awards. In the court they sought an order requiring an
accounting of their funds. The court dismissed their Complaint based on
sovereign immunity. The issues are lengthy and complex and they request 30
minutes for oral argument.
STATEMENT OF THE CASE
This action involves two separate aboriginal land claims.
One claim is based upon an Indian Claims Commission judgment (Docket 18 A),
which recognized money, was still owing to the Little Shell Band pursuant to
a Treaty of 1863. The judgment award was funded by Congress and placed in
trust with the Bureau of Indian Affairs. The funds have never been paid to
the Little Shell Band. The other claim is based upon an Indian Claims
Commission judgment (Docket 221) that recognized that without just
compensation the United States of America had taken 10 million acres of land
in which the Little Shell Band had an aboriginal interest as a result of its
historical use and occupancy. Congress also funded that judgment and the
money placed in trust with the Bureau of Indian Affairs. Those funds have
never been paid to the Little Shell Band either.
This is an action for an accounting of those funds. The
United States moved to dismiss pursuant to Rule 12 FRCP asserting lack of
subject matter jurisdiction. The United States District Court for the
District of North Dakota granted dismissal upon grounds of governmental
immunity, statute of limitations, failure to state a claim, and was critical
of "standing". Plaintiff appeals.
STATEMENT OF THE FACTS
The Little Shell Band is made
up of lineal descendants of a nomadic, aboriginal group of Indians who in
1863 were led by its great Chief, Ase-anse or Essence (hereafter "Chief
Little Shell"). The Little Shell Band is not a "recognized tribe" as that
term is used for Indian groups who have sought and received formal
recognition by the federal government.
The Little Shell Band as it
existed in 1863 divided into two groups approximately a century ago. Some of
its members were driven by poverty, hunger and government "removal policy"
out of North Dakota to settle permanently in Northern Montana. Today they
refer to themselves as the "The Little Shell Band of Montana". They and
their interests are not involved in this litigation.
The lineal descendants of the
Little Shell Band who bring this action through their hereditary chief live
in various areas of the United States. The governing group, The Grand
Council of 1863, live primarily in north-central North Dakota. They
presented three claims to the lower Court. The dismissal of two claims are
presented here on appeal . A claim for proceeds of a Bond presented to the
lower Court is not pursued here.
The policy of Congress,
reserving for itself exclusive power to negotiate Treaties that would
expropriate aboriginal rights, was affirmed in United States v. Santa Fe
Pacific RR, 314 U.S. 347 (May 1941). In addition, in the Louisiana Purchase
the French extracted a promise from the United States that aboriginal rights
would not be usurped in the area being purchased. Some of the area involved
in this litigation was a part of the Louisiana Purchase:
"The inhabitants of the ceded territory shall
be incorporated in the Union of the United States and admitted as soon as
possible according to the principles of the federal Constitution to the
enjoyment of all these rights, advantages and immunities of citizens of the
United States, and in the mean time they shall be maintained and protected
in the free enjoyment of their liberty, property and the Religion which they
profess." Louisiana Purchase, Part III, October 18, 1800.
In addition, the Act by which
Congress created the Territory of Dakota specifically provided there could
be no impairment of Indian property rights in that territory unless the
Unites States first obtained the consent of Indians having aboriginal rights
therein. Act of March 2, 1861, 12 Stat. 239. Sec 1.
Throughout the 1800’s the
desire for new lands and the idea that it was white man’s "manifest destiny"
to settle the continent resulted in a relentless westward migration by white
settlers into the Indian’s aboriginal lands. It did not matter whether the
government had a treaty with the affected Indians. Throughout the 1800’s the
government frequently stood in blatant violation of its own statutes.
As the white settlers poured
into the West, official government policy sought to encourage removal of
Indian Tribes through a series of "resettlements" and voluntary westward
migrations. Unsettled lands "further west" were offered in exchange for
Indian lands the whites wanted to settle. See e.g., The Indian Removal Act
of 1830, ch CXLVIII, 4 Stat. 411. When official policy didn’t work,
unofficial policy encouraged forcible relocation. Cobell v. Norton, 345 U.S.
App. D.C. 141, 240 F.3d 1081 (Feb 23, 2001).
In the late 1700’s and
throughout the 1800’s a massive white migration had forced these bands out
of their woodland homes in Michigan, Wisconsin and Minnesota and pushed them
farther west into the Dakota Territory and what is now Montana. Eventually
those who moved survived on the Great Plains as hunters, fishers and
trappers.
By the 1860’s thousands of
white settlers had staked out claims in Minnesota and along the Red River in
North Dakota even though there was no treaty divesting the Indians who lived
there of their aboriginal rights to those lands. In 1863 the Homestead Act
was passed. By the 1880’s more than a million white settlers had moved into
the Western Plains.
