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.

ARGUMENT

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 Dakota.

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 U.S.C. 70.)

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 trial.

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.

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