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.


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.


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.