After passage of the Act creating the Indian Claims Commission, the lineal descendants of Chief Little Shell hired a lawyer, Lawrence C. Mills of Chicago, Illinois to represent their interests. At that time Louis Delorme was Chief of the Little Shell Grand Council of 1863. He was the father of the plaintiff-appellant herein. Mills sought compensation for the government’s taking of the Little Shell’s ancestral lands. The lawsuit filed was filed as Docket No. 221 before the Indian Claims Commission (App. p. 295-296.)

Those Pembina who had agreed to settle on the Turtle Mountain Reservation and had become enrolled members of the federally recognized Turtle Mountain Band also filed a separate lawsuit. They hired the Wilkenson Law Firm of Washington D.C. to represent them. Their claim was based upon an assertion that the 10 cents an acre that had been paid to their ancestors under the McCumber Treaty was unconscionable. Other Pembina affected by the unconscionable amount also filed their own separate lawsuits. These included the Red Lake Band, the White Earth Band in Minnesota and the Rocky Boy of Montana.

The Indian Claims Commission joined all the lawsuits for trial because it felt the factual evidence as to the value of the lands at the time they were "taken" and the evidence establishing the rights of those Bands would all be based on similar or identical evidence.

At the commencement of the lawsuit great effort was made by the government to convince the Indian Claims Commission that the Little Shell's case should be dismissed. The assertion was that the Little Shell were so assimilated into the Turtle Mountain Tribe that they had lost their identity as a separate entity. The government insisted that the Little Shell claim was totally incorporated within the claims being made by the Turtle Mountain Tribe. This is an assertion that persists to this day in spite of the fact it was soundly rejected by the Indian Claims Commission and the Court of Claims on appeal. The Indian Claims Commission said:

"Since the Commission allowably found that the ancestral Turtle Mountain Band divided because of Little Shell's protest against the McCumber negotiations, and since the present Turtle Mountain Band does not claim to represent all of the present Little Shell members, the later group is entitled to separate representation as a claimant on behalf of the original Turtle Mountain Band. As we held in McGhee, the ancestral group ‘owns’ the claim, and the present day Indian groups are before the Commission only on behalf of the ancestral entity. 122 Ct. Cl. at 386-88. The conclusion reached in McGee is that an officially organized group of descendants of the ancestral entity, and an identifiable but unorganized group of descendants, are both entitled to separate representation in the proceedings before the Commission. Id, See also Cherokee Freedmen v United States, 195 Ct Cl. 39, 45 (1971). This principle is controlling here and authorized the separate participation by the Little Shell plaintiffs whom the Commission could permissibly deem, in view of the band's genesis and history, as an ‘identifiable group’". Turtle Mountain Band of Chippewa Indians, et al., v. The United States, 203 Ct. Cl. 426 (App. p.370.)

The litigation lasted ten years. The Committee awarded $52,527,337.97. After attorney fees and set-offs the claim was established at $47,376,622.93. (App. p.355.) The government appealed the judgment to the Court of Claims. The Turtle Mountain Band cross-appealed. In their cross-appeal the Turtle Mountain Band took up the earlier fight the government had tried to make and attempted to have the Little Shell Band ousted as one of the successful claimants. They wanted to be the sole recipient of the lawsuit proceeds and have total control over its distribution. They wanted to make all decisions about who qualified to receive a share of the award. They asked the Court of Claims on appeal to find that the Little Shell had been so assimilated into the Turtle Mountain Band that it did not exist as a separate entity. The argument was soundly rejected by the Appeals Court. The Court of Claims said:

"In attacking this holding, [by the Indian Claims Commission] the Turtle Mountain Band first attempts to swallow the Little Shells by contending that most, or the great majority, are Turtle Mountain members. But we do not understand the Turtle Mountain Band to concede that all of the Little Shell Bands are Turtle Mountain members, and the Little Shells deny that that is so. This being the case we cannot mechanically conclude that the Little Shell petitioners are barred from separate participation." (emphasis added.) Turtle Mountain Band of Chippewa Indians, et al., Id., (App. p. 369-370.)

Before the Court of Claims the Turtle Mountain Band also attacked the Little Shell’s rights as a separate and distinct entity upon the ground they were not "organized". They asserted that only that part of the Turtle Mountain Indians that had achieved official federal "recognition" by the Secretary of Interior was entitled to be the exclusive representatives of all the plaintiffs in the action. The idea that only Indians that are a part of a "recognized band" was carried forward at the Agency Superintendent level.
20 years later when distributions begin this same notion still govern governmental action. Agency Superintendent Dorene Bruce wrote to a Little Shell legal counsel as follows:

"There are no program funds available for the Little Shell band of North Dakota nor will there be until this group becomes Federally recognized. The Bureau of Indian Affairs does not have the authority to set aside funds for Little Shell of North Dakota." (App. p. 304.)

But the Court of Claims had clearly rejected any notion that the Band had to be an "organized Band" or one that had been federally recognized in order to be entitled to its own separate share. (App. p. 370.)

Echoing the Indian Claims Commission, the Court of Claims said:

"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. Since the Commission allowably found that the ancestral Turtle Mountain Band divided because of Little Shell’s protest against the McCumber negotiations, and since the present Turtle Mountain Band does not claim to represent all of the present Little Shell members, the latter group is entitled to separate representation as a claimant on behalf of the original Turtle Mountain Band. As we held in McGhee the ancestral group ‘owns’ the claim and present-day Indian groups are before the Commission only on behalf of the ancestral entity. 122 Ct.Cl. at 386-88. The conclusion reached in McGhee is that an officially organized group of descendants are both entitled to separate representation in proceedings before the Commission. Id, See also Cherokee Freedmen v United States, 195 Ct. Cl. 39, 45 (1971). This principle is controlling here and authorized the separate participation by the Little Shell plaintiffs whom the Commission could permissibly deem, in view of the band’s genesis and history, as an ‘identifiable group’". (Emphasis added).
(App. p.368.)

After losing in the Court of Claims on appeal the Turtle Mountain Band’s lawyers advised their clients they should not appeal to the United States Supreme Court. Obviously the lawyers decided it would be wise to keep the Little Shell Band in the litigation because their claims were better, more ancient and more legally compelling than those of the other claimants. (App. p.371-373.)

It took another ten years before Congress conducted hearings to fund the award in Senate Bill 1735. (App. p. 374-473.) The Little Shell were not financially able to attend those hearings. (Letter from Mary Wilson, on behalf of the Little Shell Band of North Dakota, Hearing on S. 1735 before the Select Committee on Indian Affairs, United States Senate, Ninety-Seventh Congress, Second Session, June 17, 1982. App. p.435)

The Chairman of the Turtle Mountain Band, representatives of the BIA and the Secretary of Interior’s office did attend. Before Congress the Turtle Mountain Band continued its fight to exclude the Little Shell from participation in the award. They argued for a structure that would accomplish what they had been denied by the Court of Claims. Their Chairman proposed a committee, appointed by his tribe, to screen all persons claiming to be of Pembina Descendancy to meet a 1/4th blood quantum requirement for eligibility to share in the award. Id. Statement of Richard J. Lafromboise, Chairman of the Turtle Mountain Band of Chippewa Indians. Id.

John W. Fritz, Deputy Assistant Secretary for Indian Affairs, also took up the cause of devising a plan that would exclude the Little Shell. He stated in his testimony at the Senate hearings of S. 1735 (App. p. 380-383) as follows:

"There are factions of Pembina Chippewa who continue to assert that they are fully representative of the historic Pembina Band that should be the sole beneficiaries of the award funds. Usually referring to themselves as the Little Shell Band, they are principally located in North Dakota in the Turtle Mountain Reservation area."

Continuing on he said:

"[proposed] S. 1735 nowhere contains the identification ‘Little Shell Band’ and this we find to be consistent with our recommendations. The appellation Little Shell is of no value in establishing Pembina ancestry." Id, Testimony of John W. Fritz.

Next came testimony from Ken Scott, Assistant Secretary of Indian Affairs for the Department of Interior, who echoed the words of Mr. Fritz:

"The appellation Little Shell is of no value in establishing Pembina ancestry." Id.

Because of this official stance by the Executive Branch, to this day the Little Shell have never been allowed to share in the award money won.

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