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.
377.)
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
administrative fiat.
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
Commission 575.
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 1972.
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.
p.82-88.)
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.
941 (1912).
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