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 entity.

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 majority ruling?

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, 1980. Id.

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 Commission.

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