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SHELDON PETERS WOLFCHILD, et al.,

Petitioners,

VS.

UNITED STATES,

Respondent.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

ERICK G. KAARDALCounsel of RecordWILLIAM F. MOHRMANMOHRMAN ~ KAARDAL, P.A.33 South Sixth Street, Suite 4100Minneapolis, Minnesota 55402(612) 341-1074

Attorneys for Petitioners

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (402) 342-2831

Of Counsel:

SAM S. KILLINGER

RAWLINGS, NIELAND,KILLINGER, ELLWANGER,JACOBS, MOHRHAUSER &NELSON, L.L.P.

522 4th Street, #300Sioux City, Iowa 51101712-277-2373

LARRY B. LEVENTHAL

LARRY LEVENTHAL

& ASSOCIATES

319 Ramsey StreetSaint Paul, Minnesota 55102612-333-5747

RANDY V. THOMPSON

NOLAN, MACGREGOR,THOMPSON & LEIGHTON

710 Lawson Commons -380 St. Peter Street

Saint Paul, Minnesota 55102651-227-6661

ROYCE DERYL EDWARDS, JR.606 South Pearl AvenueJoplin, Missouri 64801417-624-1962

BERNARD J. ROONEY

84 Park AvenueLarchmont, New York 10538914-833-9104

NICOLE NACHTIGAL EMERSONLYNN, JACKSON, SCHULTZ ~

LEBRUN, P.C.P.O. Box 2700Sioux Falls, South Dakota 57101605-332-5999

GARRETT J. HORNHORN LAW OFFICEP.O. Box 886Yankton, South Dakota 57078605-260-4647

KELLY H. STRICHERZP.O. Box 886Yankton, South Dakota 57078605-624-3333

ELIZABETH T. WALKERWALKER LAW LLC112 South Royal StreetAlexandria, Virginia 22314703-838-6284

QUESTIONS PRESENTED

A Court of Appeals for the Federal Circuit de-cision illuminates post-Carcieri conflicts with theEighth Circuit, Ninth Circuit, the Federal Circuititself and the Supreme Court regarding federal courtsubject matter jurisdiction over Indian claims ofstatutory violations against the United States. On theone hand, decisions such as Carcieri v. Salazar,U.S. __., 129 S.Ct. 1058 (Feb. 24, 2009) reflect thatsubject matter jurisdiction exists over federal gov-ernment statutory violations on matters involvingtribal governments recognized after the 1934 IndianReorganization Act. Carcieri is in accord with NinthCircuit decisions that an Indian tribe’s sovereigntydoes not prevent the federal government from ex-ercising superior federal sovereign powers. UnitedStates v. Yakima Tribal Court, 806 F.2d 853, 861 (9thCir. 1986). On the other hand, the Federal Circuitand the Eighth Circuit deny federal court subjectmatter jurisdiction to enforce federal statutory obliga-tions and legal rights to individual Native Americanbeneficiaries when post-1934 IRA non-tribal commu-nity governments are involved. Wolfchild v. United

States, 559 F.3d 1228 (Fed. Cir. 2009); Smith v.Babbitt, 100 F.3d 556 (8th Cir. 1996).

1. After Carcieri, whether federal court subject mat-ter jurisdiction exists over Native American bene-ficiary claims of purported federal governmentviolations of the 1934 IRA or other applicablefederal statutes when post-1934 IRA non-tribalcommunity governments are involved.

ii

o

QUESTIONS PRESENTED - Continued

Whether the Federal Circuit’s holding of "statu-tory use restrictions" in Congressional Appropria-tion Acts establishing statutory obligations onthe United States, but no "trust," departs fromapplicable statutory interpretation and trustprinciples set forth in United States v. Mitchell,463 U.S. 206 (1983) and its progeny.

Whether the Federal Circuit’s holding that a1980 Congressional Act terminated a trust im-permissibly conflicts with the First Circuit’sdecision in Passamaquoddy Tribe v. Morton, 528F.2d 370 (lst Cir. 1979) in that the FederalCircuit failed to consider the 1934 IRA’s ex-tension of all Native American trusts under 25U.S.C. § 462 and failed to apply the "clear andunambiguous requirement" for a trust termina-tion act.

ooo111

LIST OF PARTIES

A list of parties has been provided to the Clerk ofCourt for the Supreme Court under a separate filingdue to the numerous Petitioners represented (in

excess of 10,790 individuals).

CORPORATE DISCLOSURE STATEMENT

The Petitioners are not and do not represent anongovernmental corporation.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................i

LIST OF PARTIES .................................................iii

CORPORATE DISCLOSURE STATEMENT ........iii

JURISDICTION .....................................................1

STATUTORY PROVISIONS INVOLVED ............. 2

STATEMENT OF THE CASE ................................2

A. The Underlying Facts ..................................8

1. An Indian conflict resulted in harshCongressional reaction, but to thosewho remained loyal to the UnitedStates, promises of land ........................8

2. The 1934 IRA Preserved 1886Mdewakanton Rights and Allowed theCreation of Post-1934 IRA Non-tribalCommunity Governments, But theCommunities’ Constitutions Subse-quently Jeopardized 1886 MdewakantonRights to 1886 Lands ............................11

(a) The 1936 post-1934 IRA non-tribalcommunity governments ..................11

(b) The 1969 post-1934 non-tribal IRAcommunity ........................................14

3. The United States holds lands in trustfor the post-1934 IRA non-tribal Com-munities .................................................15

V

TABLE OF CONTENTS - Continued

Page

B. The U.S. Court of Federal Claims Pro-ceedings ........................................................17

In Wolfchild I, the trial court findsCongressional Appropriation Acts createda trust and that the United Statesbreached that trust ....................................17

C. Proceedings on Appeal .................................19

The Federal Circuit reverses the lowercourt ...........................................................19

REASONS FOR GRANTING THE PETITION .....21

I. The Federal Circuit’s "Statutory UseRestriction" Derived from AppropriationActs Creates a Substantive EnforceableRight, But Without a Legal Forum forAdjudication, Contrary to Carcieri andNinth Circuit Decisions That Provide ForSubject Matter Jurisdiction .........................21

II. The United States Initially EnforcedIts Obligations to Individual 1886 Mdewa-kanton, But Later Abandoned ThoseObligations in Lieu of Post-1934 IRACommunities and Excluded 1886 Mdewa-kanton From Benefits Derived From the1886 Lands ...................................................26

III. The Federal Circuit’s Statutory Interpre-tation of the Appropriation Acts Contra-dicts Supreme Court Precedent in MitchellI, Mitchell II, White Mountain Apache,Navajo I, Navajo II and Carcieri ................. 31


Page

IV. The Federal Circuit’s Statutory Interpre-tative Approach on the Second CertifiedQuestion Contradicts the Plain MeaningRule, Carcieri, 25 U.S.C. § 462, Passama-quoddy’s ’~Plain and Unambiguous" Re-quirement and Established CongressionalPractice Regarding Indian Trust Termi-nation ...........................................................40

CONCLUSION .......................................................45

APPENDIX INDEX

Wolfchild v. United States, 559 F.3d 1228 (Fed.Cir. 2009) ..........................................................App. 1

Wolfchild v. United States, 78 Fed.C1. 472(2007) .............................................................. App. 76

United States Court of Appeals for the FederalCircuit Order, dated June 11, 2009 ............. App. 112

Solicitor Memorandum to Assistant Com-missioner of Indian Affairs, dated April 15,1938 .............................................................. App. 117

Prairie Island Indian Community in MinnesotaConstitution, dated June 12, 1936 .............. App. 120

Lower Sioux Indian Community in MinnesotaConstitution, dated May 25, 1936 ............... App. 128

Shakopee Mdewakanton Sioux Community ofMinnesota Constitution, dated November 28,1969 .............................................................. App. 136

Indian Land Certificate, dated December 13,1979 .............................................................. App. 139

vii


Page

Lanny Ross vs. Shakopee Mdewakanton SiouxCommunity, Court of the ShakopeeMdewakanton Sioux Community decision,dated July 17, 1992 ...................................... App. 143

Appropriation Act of June 29, 1888, ch. 503, 25Stat. 217 at 228 ............................................ App. 154

Appropriation Act of March 2, 1889, ch. 412, 25Stat. 980 at 992 ............................................ App. 154

Appropriation Act of August 19, 1890, ch. 807,26 Stat. 336 at 349 ....................................... App. 155

Act of December 19, 1980, Pub. L. No. 96-557,94 Stat. 3262 (relevant provisions) ............. App. 157

1934 Indian Reorganization Act, Pub. L. 73-383,48 Stat. 983 (1934) (relevant provisions) .... App. 159

Vlll

TABLE OF AUTHORITIES

Page

CASES

Bristol-Myers Squibb Co. v. Royce Lab., 69 F.3d1130 (Fed. Cir. 1995) ...............................................37

Canadian Lumber Trade Alliance v. UnitedStates, 517 F.3d 1319 (Fed. Cir. 2008) ....................37

Carcieri v. Salazar, ~ U.S. __., 129 S.Ct.1058 (Feb. 24, 2009) ........................................ passim

Duncan v. United States, 229 Ct. C1. 120, 667F.2d 36 (1981) .............................................. 33, 38, 39

Joint Tribal Council of the Passamaquoddy Tribev. Morton, 528 F.2d 370 (C.A. Me. 1975) ..........40, 44

Shakopee Mdewakanton Sioux (Dakota) Com-munity v. Babbitt, 107 F.3d 667 (8th Cir.1997) ........................................................................16

Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996),cert. denied sub nora., Freezor v. Babbitt, 522U.S. 807 (1997) ........................................ 5, 22, 29, 31

United States v. Gonzales, 520 U.S. 1, 117 S.Ct.1032, 137 L.Ed.2d 132 (1997) .................................34

United States v. Mitchell, 445 U.S. 535 (1980)("Mitchell I") .......................................... 21, 31, 32, 39

United States v. Mitchell, 463 U.S. 206 (1983)("Mitchell H") .................................................. passim

United States v. Navajo Nation, 537 U.S. 488(2003) ("Navajo I") ............................................31, 32

ix

TABLE OF AUTHORITIES - Continued

Page

United States v. Navajo Nation, __ U.S. __,129 S.Ct. 1547 (Apr. 6, 2009) ("NavajoH") ..................................................... 7, 31, 32, 33, 34

United States v. White Mountain Apache Tribe,784 F.2d 917 (9th Cir. 1986) .....................................5

United States v. White Mountain Apache Tribe,537 U.S. 465 (2003) ......................................... passim

United States v. Yakima Tribal Court, 806 F.2d853 (9th Cir. 1986) ..............................................5, 25

Wolfchild v. United States, 62 Fed. C1. 521(2004) ("Wolfchild I"), rev’d, 559 F.3d 1228(Fed. Cir. 2009), rehearing en banc denied,(Jun. 11, 2009) ........................................... 8, 9, 17, 18

Wolfchild v. United States, 68 Fed. C1. 779(2005) ("Wolfchild H") ................................... 8, 10, 19

Wolfchild v. United States, 78 Fed. C1. 472(2007) .......................................................................19

Wolfchild v. United States, 559 F.3d 1228 (Fed.Cir. 2009) ......................................................... passim

FEDERAL STATUTES

25 U.S.C. § 462 ...................................................passim

25 U.S.C. § 463 .......................................................2, 11

25 U.S.C. § 465 .......................................................2, 20

25 U.S.C. § 476 ...............................................12, 26, 42

25 U.S.C. § 479 .......................................................2, 42

X


Page

25 U.S.C. § 564 ...........................................................45

25 U.S.C. § 677 ...........................................................45

25 U.S.C. § 691 ...........................................................45

25 U.S.C. § 741 .............................................................8

25 U.S.C. § 980 ...........................................................45

28 U.S.C. § 1292 .........................................................19

65 Stat. 250 .................................................................45

70 Stat. 893 .................................................................45

70 Stat. 937 .................................................................45

70 Stat. 963 .................................................................45

Act of Feb. 16, 1863, 12 Stat. 652 ................................8

Act of Dec. 19, 1980, Pub. L. 9-557, 94 Stat.3262 .................................................................passim

Act of June 29, 1888, ch. 503, 25 Stat. 217 ........passim

Act of Mar. 2, 1889, ch. 412, 25 Stat. 980 ..........passim

Act of Aug. 19, 1890, ch. 807, 26 Stat. 336 ........passim

Pub. L. 73-383, 48 Stat. 984 (1934) IndianReorganization Act .......................................... passim

RULES

U.S. Sup. Ct. Rule 10 ....................................................2


Page

OTHER AUTHORITIES

Ross v. SMS(D)C, I Shak. 86 (July 17, 1992) ............30

A Practical Treatise on the Law of Trust, vol. 1,24 (Thomas Lewin, Frederick Lewin andJames H. Flint, 1st Am. ed., Charles H.Edson 1888) .............................................................37

A Treatise on the Law of Trusts and Estates,vol. 1, 68 (Jarias Ware Perry, 4th ed., LittleBrown, 1889) ...........................................................38

76 Am. Jur. 2d Trusts § 36 (2008) ..............................37

Restatement (Third) of Trusts § 63(3) (2003) ............44

Felix Chen, Basic Memorandum on theDrafting of Tribal Constitutions 5 (David E.Wilkens, ed. U. of Okla. Press 2006) ......................27

Blank Page

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writcertiorari issue to review the judgment below.

of

OPINION BELOW

The opinion of the United States Court of Ap-peals for the Federal Circuit, sitting as a three-judgepanel, is reported at 559 F.3d 1228 (Fed. Cir. 2009)and is reprinted in the Appendix to the petition atAppendix 1. The court reversed and remanded thedecision of the United States Court of Federal Claimsreported at 62 Fed. C1. 521 (2004) at Appendix 161.

JURISDICTION

The date of the Court of Appeals for the FederalCircuit decision was March 10, 2009 at Appendix 1.

A timely petition for rehearing and en banc re-view was denied on the following date: June 11, 2009.A copy of the order denying rehearing and en bancreview appears at Appendix 112-15.

An extension of time to file the petition for a writof certiorari was granted to and including November6, 2009 on August 20, 2009, in Application No. 09A192.

The jurisdiction of this Court is invoked under 28U.S.C. § 1254(1).

2

STATUTORY PROVISIONS INVOLVED

Pertinent provisions of the 1888, 1889, and 1890Appropriation Acts: Act of June 29, 1888, 25 Stat. 217at 228; Act of Mar. 2, 1889, 25 Stat. 980 at 992; Act ofAug. 19, 1890, 26 Star. 336 at 349. The AppropriationActs are reprinted at Appendix 154-56. Relevantprovisions of the original Indian Reorganization Act

of 1934, as amended, 25 U.S.C. §§ 462, 463, 465, and479 are reprinted at Appendix 159-60. The Act of Dec.19, 1980, Pub. L. 9-557, 94 Stat. 3262 is reprinted atAppendix 157-58.

STATEMENT OF THE CASE

This petition places squarely before the Courtseveral issues of national importance arising froma split in circuit court decisions. With the FederalCircuit’s holding in Wolfchild v. United States,1 this

petition presents a confluence of conflicting courtdecisions from not only the United States Court ofAppeals for the Federal Circuit, the Eighth Circuit,and Ninth Circuit,2 but also with the Supreme Court.3

In light of this Court’s recent holding in Carcieri v.

559 F.3d 1228 (Fed. Cir. 2009), App. 1.

U.S. Sup. Ct. Rule 10(a).

U.S. Sup. Ct. Rule 10(c).

Salazar4 and the circuit splits, the Federal Circuit’sWolfchild decision highlights an apparent fundamen-tal legal and jurisdictional shift of federal courtjurisdiction and Indian trust law.

First, the consequences of the Federal Circuitdecision and resulting circuit splits dramaticallychange the legal framework in holding the UnitedStates accountable for legal violations and injusticesregarding Native Americans. It places all NativeAmericans in the untenable position of losing federalcourt forums to litigate federal obligations to themand other statutory claims or abuses by post-1934Indian Reorganization Act5 communities. In short, ifthe purported governmental violations involve post-1934 IRA non-tribal community governments, whenthe lands are held in trust for those IRA communities,affected Native Americans have no federal courtremedy.

Second, with the Federal Circuit’s disregard ofthe Supreme Court’s holding in Carcieri, the Circuit’sdecision affects Native American rights nationwide inmatters involving federal holdings of trust lands. Inthe instant matter, the United States purchased landsand held them for the use of a statutorily-defined"band" of Native Americans - the 1886 Mdewakanton.

4 Carcieri v. Salazar, __ U.S. __, 129 S.Ct. 1058 (Feb. 24,

2009).

~ Pub. L. 73-383, 48 Star. 984 (1934) ("1934 IRA").

4

The United States later abrogated those obligationsand now holds the same lands in trust to anothergroup of Native Americans - Indian communitiescreated after the passage of the 1934 IRA. Those post-1934 IRA non-tribal community governments excludethe original Congressionally-intended beneficiariesfrom any benefits to or derived from the lands held intrust for them. The Federal Circuit decision suggests- in contradiction of the IRA, 25 U.S.C. § 462 - thatthe Department of Interior does not need expressstatutory authorization before replacing NativeAmerican beneficiaries on Indian trust lands.

Third, both the Federal Circuit and the EighthCircuit suggest that, if the United States’ obligationsto a definitive class of Native Americans affectpresent-day post-1934 IRA non-tribal communitygovernments, the federal courts have no subjectmatter jurisdiction to adjudicate the federal claims ofthe affected class because of the "Indian sovereignty"of the post-1934 non-tribal community governments.

In this case, the benefits derived from lands ap-propriated for an identified band of 1886 Mdewakan-ton Indians and their descendants presently go onlyto members of post-1934 IRA non-tribal communitygovernments - to the exclusion of all other 1886Mdewakanton who Congress originally intended. TheFederal Circuit and Eighth Circuit decisions, asapplied, leave these excluded Native American bene-ficiaries with no judiciable remedy for statutoryclaims or violations under the 1934 IRA because ofthe lack of federal subject matter jurisdiction.

5

Fourth, the Federal Circuit and Eighth Circuitsuggest a judicial reluctance to assert subject matterjurisdiction, despite claims solely against the UnitedStates, if the judgment would require some redistri-bution of wealth of post-1934 IRA non-tribal com-munities to include the Congressionally-intendedbeneficiary class. To the contrary, federal courtsshould not rely on purported "Indian sovereignty" ofpost-1934 IRA non-tribal community governments tojudicially excuse the United States from complyingwith and enforcing all applicable federal laws.

After Carcieri, do federal courts have subjectmatter jurisdiction over Indian claims against theUnited States for violations of the IRA, CongressionalActs, and other applicable federal statutes when post-1934 IRA non-tribal community governments are in-volved? Carcieri suggests the federal courts have suchsubject matter jurisdiction. The Eighth Circuit deci-sion in Smith v. Babbitt~ states the opposite. TheFederal Circuit decision appears to fall in line withSmith v. Babbitt. But, the Ninth Circuit in twodifferent types of cases, United States v. YakimaTribal Court7 and United States v. White MountainApache Tribe,~ have found subject matter jurisdictionto enforce federal statutory obligations involvingNative American tribes.

6 Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996), cert. denied

sub nom., Freezor v. Babbitt, 522 U.S. 807 (1997).7 806 F.2d 853, 861 (9th Cir. 1986).

8 784 F.2d 917, 919 (9th Cir. 1986).

6

The Federal Circuit found, for the first time ever,Native American non-trust "statutory use restric-tions" as possible substantive rights, but withoutproviding a legal forum for adjudication as appliedwhen post-1934 IRA non-tribal community govern-ments are involved.

Fifth, the Federal Circuit’s decision renouncedsettled principles of statutory interpretation govern-ing Indian trust law creation. The Circuit requiredCongressional Acts to include explicit words such as"trust" or "reservation" to create trust obligations.The Federal Circuit’s decision has now created a newrestriction on Congress’ ability to create trusts notacknowledged by this Court.

Sixth, the Federal Circuit also rejected settledprinciples of statutory interpretation governing Indiantrust law termination. The court did not properlyapply the Plain Meaning Rule to a Congressional Actpassed in 1980, construing it as a trust terminationAct. The Act did not contain the words expressing apurpose to terminate Indian trust beneficiary rights.The Federal Circuit decision did not consider andapply provisions of the IRA, specifically 25 U.S.C.

§ 462, which continues the terms of all Indian trustsin perpetuity unless Congress "directs" otherwise.

The Federal Circuit did not apply the "plain andunambiguous" requirement followed by the First Cir-cuit when determining whether a Congressional Actterminates an Indian trust. In light of the FederalCircuit’s decision, what statutory interpretative

principles now apply to interpreting Congressionalacts purporting to terminate Indian trust beneficiaryrights?

Finally, with the Federal Circuit’s demand thatCongressional Acts have specific language such as"trust" or "reservation" to create trust obligations be-tween Native Americans or Native American tribesand the United States, has the statutory interpreta-tive principles of the Supreme Court been evis-cerated, undermined, or modified beyond Mitchell II~

and its progeny, including this Court’s most recentpronouncement under Navajo II?1°

The implications of the doctrinal shift by theFederal Circuit’s decision are far reaching. The fed-eral jurisdictional conundrum for Native Americans,

and the Circuit’s restrictive framework and mis-application of Indian trust law interpretation repre-sents the need for a definitive resolution by thisCourt.

9 United States v. Mitchell, 463 U.S. 206 (1983) ("Mitchell

H").lo United States v. Navajo Nation, __ U.S. __, 129 S.Ct.

1547, 1552 (Apr. 6, 2009) ("Navajo H").

8

A. The Underlying Facts11

1. An Indian conflict resulted in harshCongressional reaction, but to thosewho remained loyal to the United States,promises of land.

After an 1862 Sioux uprising in Minnesota, Con-gress in 1863 passed an Act that "abrogated andannulled" all treaties between the federal governmentand Minnesota Sioux Indians and "forfeited to theUnited States" "... all lands and rights of occupancywithin the State of Minnesota ....,,1~ The federal

government removed all Sioux from Minnesota withthe exception of about 200 Mdewakanton Sioux whohelped rescue whites during the 1862 uprising.

The reward for rescuing whites included "eightyacres in severalty to each individual of the before-named bands who exerted himself in rescuing whitesfrom the late massacre of said Indians [as] an inheri-tance to said Indians and their heirs forever." The 80-acre parcels described in the 1863 Act were never setaside and the 200 or so loyal Mdewakanton remainedwithout land in Minnesota for 25 years.

Finally, through Appropriation Acts in 1888,1889, and 1890 ("Appropriation Acts"), Congress

11 The trial court’s opinions contain a thorough canvass of

the complex factual and legal background of this case. See Wolf-child I, 62 Fed. C1. at 526-35, App. 161 and Wolfchild v. UnitedStates, 68 Fed. C1. 779, 782-83, 785-94 (2005) ("Wolfchild H’).

1~ Act of Feb. 16, 1863, 12 Stat. 652.

9

authorized the Secretary of the Interior to purchaseland and other needed items for the loyal Mdewakan-ton in such a manner as the Secretary deemed bestand to ensure that each Indian beneficiary receive"an equal amount in the value of the appropriation":

[ ... ] thousand dollars, to be expended bythe Secretary of the Interior as follows ...And all of said money which is to beexpended for lands ... shall be so expendedthat each of the Indians in this paragraphshall receive, as nearly as practicable, anequal amount in the value of the appro-priation.13

Interior used $15,529.22 of the $40,000.00 ofappropriated moneys to purchase "lands" inMinnesota - "the 1886 lands."14

The lands are acknowledged by all parties to becurrently held in trust by the United States.

The Acts identified the Mdewakanton Indians forwhom "each Indian" would receive the benefit of theland purchased as the 1886 Mdewakanton:

For the support of the full and mixed bloodIndians in Minnesota heretofore belonging tothe Medawakanton (sic) band of Sioux In-dians, who have resided in said State since

13 App. 154-55.14 The appropriated lands are "commonly called the ’1886

lands’ to reflect the effective date of the census that defined thebeneficiaries." Wolfchild I, 62 Fed. C1. at 528, App. 179.

10

the twentieth day of May, eighteen hundredand eighty-six, or who were engaged inremoving to said State, and have since re-sided therein, and have severed their tribalrelations.., as may be deemed best for theseIndians or family thereof... 15

A May 20, 1886 census published in September1886 (prior to enactment of the Appropriation Acts),later supplemented in 1889, identified the Mdewa-kanton beneficiaries of the Appropriation Acts. TheU.S. Court of Federal Claims found the 1886 censusas the "presumptive starting point for indentifyingthe loyal Mdewakanton and their descendants"1~ - the

"1886 Mdewakanton."

Interior purchased the 1886 lands in three dif-ferent Minnesota locations and implemented a landassignment system for individual 1886 Mdewakanton.The assignments, made through land certificates,stated the 1886 lands as "held in trust by the Secre-tary of the Interior for the exclusive use and benefit ofsaid Indian... [and] subject to [re]assignment by theSecretary of the Interior to some other Indian whowas a resident of Minnesota on May 20, 1886 or a

15 App. 155; Act of Aug. 19, 1890, ch. 807, 26 Stat. 336 at

349. The two previous Appropriation Acts, used the same date ofMay 20, 1886, but the language to identify the 1886Mdewakanton differed slightly: The 1888 and 1889 Actsidentified the Mdewakanton as "full-blood." Act of June 29, 1888,ch. 503, 25 Stat. 217 at 228; Act of Mar. 2, 1889, ch. 412, 25 Stat.980 at 992, App. 154-55.

~6 Wolfchild II, 68 Fed. C1. at 787 n. 10.

11

legal descendant of such resident Indian.’’17 Interior’sland assignment system remained essentially in placefor approximately 90 years until 1980 - being oftenreferred to by Interior as an implementation of its"trust" obligations to the 1886 MdewakantonJ8

2. The 1934 IRA Preserved 1886 Mdewa-kanton Rights and Allowed the Creationof Post-1934 IRA Non-tribal CommunityGovernments, But the Communities’Constitutions Subsequently Jeopardized1886 Mdewakanton Rights to 1886Lands.

(a) The 1936 post-1934 IRA non-tribalcommunity governments.

When Congress enacted the Indian Reorganiza-tion Act in 1934, it preserved "existing periods of trustplaced upon any Indian lands ... until otherwisedirected by Congress."t~ The IRA further providedthat if the Secretary restores surplus lands to "tribalownership" the pre-existing "rights or claims of anypersons to [such] lands ... shall not be affected bythis Act.’’2° Recognizing an opportunity, 1886 Mdewa-kanton leaders sought to bring all 1886 Mdewa-kanton under one political government, despite the

17 E.g., JA2011 ("JA" refers to Federal

appendix submissions).18 Wolfchild, 559 F.3d at 1248, App. 45.19 25 U.S.C. § 462.29 25 U.S.C. § 463.

Circuit joint

12

fact the Secretary of the Interior purchased the 1886lands in three separate Minnesota locations.

Interior denied the suggested governance asimpractical resulting in the creation of three separatenon-tribal political governmental entities, two in1936, and one in 1969 - the Prairie Island IndianCommunity (1936), the Lower Sioux Indian Commu-nity (1936), and the Shakopee Mdewakanton SiouxCommunity (1969) (the "Communities"). "Non-tribal"refers to the fact that the Mdewakanton could not berecognized as a "historical tribe" due to both 1863 Actand Appropriation Acts’ requirements to sever tribalrelations.21

IRA provisions, however, allowed non-tribal Na-tive Americans to form political governments based

on "residence on reservation land.’’22 Here, the terri-torial provisions of the Lower Sioux and Prairie

Island Constitutions find the 1886 lands, reserved forthe exclusive use of the 1886 Mdewakanton, as theCommunities’ original land base.

Interior guided, drafted, and approved the Com-munities’ constitutions’ content. The two 1936 consti-tutions followed the IRA "trust" directives. The 1969constitution did not.

21 App. 117-19; JA4656; JA4659-60.

22 25 U.S.C. § 476 (prior to amendments in Pub. L. 100-581,

Stat. 2938-39 (1988) which contained relevant savings clause at§ 103).

13

For instance, the 1936 community constitutionsincorporated and continued Interior’s land assign-ment system preserving the 1886 Mdewakanton de-scendants’ right to "receive an equal amount in thevalue of" as the Appropriation Acts directed:

¯ "Nothing ... [would]be construed todeprive any Minnesota MdewakantonSioux of any vested right;"~3

¯ That land assignments be made only to"the Mdewakanton Sioux residing in theState of Minnesota on May 20, 1886, andtheir descendants’’~4 whether residentsor not within the geographic politicalboundaries of each Community;~5

As highlighted by the Federal Circuit, an InteriorSolicitor’s 1974 opinion letter concluded that the 1886lands were best viewed held by the United States in

trust for 1886 Mdewakanton, with Interior’s Secre-tary "possessing a special power of appointmentamong members of a definite class" and with theauthority to grant an interest in the form of either atenancy at will or a defeasible interest in the land.~

A 1978 Interior memorandum confirmed the 1886Mdewakanton descendants as beneficiaries of the

2~ JA1952-57; JA1989-97.

~4 JA1955; JA1995.

~ Id. Act of Mar. 2, 1889, 25 Stat. at 992, and Act of Aug.19, 1890, 26 Stat. at 349, App. 155.

26 Wolfchild, 559 F.3d at 1248, App. 46.

14

1886 lands, not the post-1934 IRA non-tribal com-munity governments:

It should be stressed that none of the threeCommunity governments, organized underthe Indian Reorganization Act and operatingunder Constitution and bylaws, has anyright, title or interest in these lands. Theland is held for the benefit of a specific classof people and their descendants.27

(b) The 1969 post-1934 non-tribal IRAcommunity.

In 1969, the Department of the Interior, at thecenter of organizing the Shakopee Community, al-lowed for the Community’s malformation through theacceptance of both 1886 Mdewakanton and non-1886Mdewakanton as charter and community members.Interior accepted the status of the non-1886 Mdewa-kanton, knowing the land base for the Communityrested entirely on 1886 lands - lands that were forthe exclusive use of 1886 Mdewakanton and theirdescendents. Consequently, the Shakopee constitu-tion would have no provisions to protect the rights ofthe 1886 Mdewakanton and their descendants’ rightsto 1886 lands.

Eventually, all three Communities closed mem-bership to other 1886 Mdewakanton depriving them

27 JA399-400.

15

of receiving acquired benefits derived from the 1886and other acquired lands.

Ironically, but for the 1886 Mdewakantons pre-viously awarded lands and use thereof through theAppropriation Acts, and the subsequent 90-year Inte-rior governance over land use to those people, thenow recognized post-1934 IRA non-tribal communitygovernments would not exist. Yet, over 90% of theoriginal 1886 Mdewakanton Congressionally-intendedbeneficiaries are now excluded by the Communitiesbecause Interior refuses to comply with its statutoryobligations under the Appropriation Acts.

So The United States holds lands in trustfor the post-1934 IRA non-tribal Com-munities.

In 1980, Congress passed an act requiring allright, title and interest in the United States in lands"which were acquired and are now held by the UnitedStates for the use or benefit of certain MdewakantonSioux Indians under the [Appropriations Acts], arehereby declared to hereafter be held by the UnitedStates... in trust for the [Communities]."28

After enactment of the 1980 Act, Interior stoppedmaking land assignments to 1886 Mdewakanton.Simultaneously, the Communities excluded from

28 Pub. L. 9-557, 94 Stat. 3262 (1980) (emphasis added),

App. 157.

16

membership and from the benefits derived from the

1886 lands,29 all 1886 Mdewakanton who were notalready community members. Thus, although theUnited States appropriated the 1886 lands for 1886Mdewakanton for their use and benefit (now num-bering over 10,700 people) the United States holdsthe lands in trust for three communities of about 5%of the intended beneficiaries who now exclusivelyreceive all benefits from the 1886 lands. Adding insultto injury, the 1886 land benefits also go to non-1886Mdewakanton whomInterior permits to beCommunity members.

Even Interior has asserted the illegitimacy ofnon-1886 Mdewakanton being members of the com-munity governments and voting.3° Despite Interior’sstated knowledge of non-1886 Mdewakanton beingimpermissibly on 1886 Lands, Interior has donenothing in the last 12 years to remove the non-1886Mdewakanton from the 1886 Lands.

The Wolfchild litigation is a result of Interior’sintentional policies and actions.

29 As reported in 1976, Interior holds moneys derived from

1886 lands in an Interior trust account for eventual distributionto the 1886 Mdewakanton. The Federal Circuit remanded thecase for further proceedings on that claim. App. 74-75.

3o See Shakopee Mdewakanton Sioux (Dakota) Community

v. Babbitt, 107 F.3d 667, 669-70 (8th Cir. 1997).

17

The U.S. Court of Federal Claims Pro-ceedings

In Wolfchild I, the trial court findsCongressional Appropriation Acts cre-ated a trust and that the United Statesbreached that trust.

In November 2003, the petitioners, the 1886

Mdewakanton lineal descendants, filed an actionunder the Tucker Act and Indian Tucker Act in theU.S. Court of Federal Claims. The petitioners alleged,in part, that the Appropriations Acts created a trustand that the government breached its fiduciary dutiesto them. The government moved to dismiss thecomplaint for lack of jurisdiction, asserting that theAppropriations Acts did not create money-mandatingfiduciary duties, and even if they did, the post-1934IRA non-tribal community governments had sover-eign power to determine membership and benefitsnotwithstanding the Appropriation Acts and IRA. ThePetitioners filed a cross-motion for partial summaryjudgment.

In 2004, the U.S. Court of Federal Claims deniedthe United States’ motion to dismiss and granted thePetitioners’ motion for partial summary judgmentthat the Appropriations Acts created a trust for the

benefit of the 1886 Mdewakanton and that the UnitedStates breached that trust.31 Relying upon White

31 Wolfchild I, 62 Fed. C1. at 526-35, App. 166-93.

18

Mountain Apache,32 the court concluded that the

"agreement between the loyal Mdewakanton and thegovernment includes all the features of a trust.’’3~ TheCourt further found an Interior "uniformly consistentpractice’’~ over 90 years reinforced the view thatMdewakanton residents in Minnesota or in the actualprocess of moving to Minnesota on May 20, 1886, andtheir descendants, are trust beneficiaries to landsacquired under the Appropriation Acts.~5

The lower court also found the passage of a 1980Act in which the government held lands in trust forthe Communities merely gave greater control overthe use of the lands and eliminated two classes ofmembers established by the Communities’ constitu-

tions. The Court concluded the 1980 Act did notterminate the created trust: "[t]he 1980 Act does notstate as its purpose that the trust for the Mdewa-kanton would be terminated.’’36

The government subsequently moved for recon-

sideration - later denied. The court in Wolfchild H af-firmed its previous decision~7 noting "the governmentwould [rather] introduce an element of confusion and

White Mountain Apache, 537 U.S. 465,476 n. 3 (2003).

Wolfchild I, 62 Fed. C1. at 540-41, App. 206-07.

Id. at 542, App. 214.

Id. at 543, App. 215-16.

Wolfchild H at 794.

19

obfuscation where there was none in the contempor-aneous actions of the Department [of the Interior]."38

Nevertheless, in 2007, the U.S. Court of FederalClaims granted the United States’ motion for certi-fication for interlocutory appeal on two issues:

(1) Whether a trust was created in con-nection with and as a consequence of the1888, 1889, and 1890 AppropriationsActs for the benefit of the loyal Mdewa-kanton and their lineal descendants,which trust included land, improve-ments to land, and monies as the corpus;and

(2) If the Appropriations Acts created such atrust, whether Congress terminated thattrust with enactment of the 1980 Act.39

C. Proceedings on Appeal

The Federal Circuit reverses the lowercourt.

The Federal Circuit, permitting the interlocutoryappeal under 28 U.S.C. § 1292, reversed the lowercourt’s decision and remanded for further proceed-ings. Without reference to U.S. Supreme Court Indiantr~st law doctrine, the Federal Circuit did not find

38 Id. at 787.

39 Wolfchild v. United States, 78 Fed. C1. 472, 480 (2007),

App. 96.

20

the Appropriation Acts creating a "trust" per se, but"merely appropriating funds subject to a ’statutoryuse restriction.’"~° The Circuit concluded that "even ifwe construed the Appropriation Acts as creating atrust relationship by implication or by operation oflaw, we would hold that the 1980 Act terminated thattrust."~1

The Federal Circuit described the 1980 Act asone that "simply provides for the long term disposi-tion of the property purchased pursuant to theAppropriation Acts, an issue left unresolved byCongress both in those Acts and during the ensuing90 years."42 But, the Circuit dismissed the UnitedStates Supreme Court’s limitation of the federalgovernment’s trust authority under the IRA’s § 465 inCarcieri "to those members of tribes that were underfederal jurisdiction at the time the IRA was enacted’’~3

- disregarding the Petitioners’ argument to Carcieri’srelevancy to the issues then before the FederalCircuit.44

40 Wolfchild, 559 F. 3d at 1240, App. 27.41 Id. at 1257, App. 68.42 Id. at 1258 n. 13, App. 70.43 Carcieri, 129 S.Ct. at 1065.

" Wolfchild, 559 F.3d at 1251 n. 8, App. 53.

21

REASONS FOR GRANTING THE PETITION

I. The Federal Circuit’s "Statutory UseRestriction" Derived from AppropriationActs Creates a Substantive EnforceableRight, But Without a Legal Forum forAdjudication, Contrary to Carcieri andNinth Circuit Decisions That Provide ForSubject Matter Jurisdiction.

In the Federal Circuit’s analysis of the firstcertified question before it - whether the 1888, 1889,and 1890 Appropriation Acts created a trust - thecourt added to the Supreme Court lexicon of trustlaw, a new sub-category - "statutory use restriction."Simultaneously, the Circuit held that the Appropria-

tion Acts did not create a trust because the words"trust’’4~ or "reservation" were not in the statutorytext4~ - thereby avoiding Mitchell I and its progeny:

"[w]hile the legal issue [regarding whetherCongress created a trust] is complex anduntangling the historical materials is diffi-cult, we conclude that the [1888, 1889, and1890] Appropriation Acts are best inter-preted as merely appropriating funds subjectto a statutory use restriction .... ,,47

The Circuit’s decision means that Interior has ap-parent fiduciary obligations to the 1886 Mdewakanton

4~ Id. at 1238, App. 20-21.

~ Id. at 1253, App. 58-59.~7 Id. at 1240, App. 27.

22

as to the statutory use restriction on the 1886 Lands,and thus any deprivation of benefits related to those

lands vis-a-vis the Communities. But, the courtrefused to provide the petitioners with a legal forumfor its legal arguments due to an apparent lack ofsubject matter jurisdiction. The Circuit’s decision sug-gests that a Congressional 1980 Act48 extinguished allof Petitioners’ rights because the United States nowholds the 1886 lands in trust exclusively for the post-1934 IRA non-tribal community governments.

Similarly, an Eighth Circuit decision in Smith v.Babbitt49 found 1886 Mdewakanton descendants ju-risdictionally barred from pursuing statutory rem-edies in federal court against the United States:

Careful examination of the complaints andthe record reveals that this action is an at-tempt by the plaintiffs to appeal the Tribe’smembership determinations. It is true thatappellants allege violations of IGRA, ICRA,IRA, RICO, and the Tribe’s Constitution.However, upon closer examination, we findthat these allegations are merely attempts tomove this dispute, over which this courtwould not otherwise have jurisdiction, intofederal court.5°

4s App. 157.49 100 F.3d 556 (8th Cir. 1996).5o Smith, 100 F.3d at 559.

23

Because the Eighth Circuit decision conflatedcommunity political membership issues with claimsof breached federal statutory obligations, the affected1886 Mdewakanton were jurisdictionally barred frompursuing claims against Interior in the U.S. DistrictCourt to enforce statutory rights of beneficial inter-ests derived from 1886 lands held in trust by theUnited States.

Meanwhile, the Federal Circuit’s "statutory userestriction" means Interior has apparent fiduciaryobligations to ensure benefits, which heretofore havegone to the Communities, now must go exclusively to1886 Mdewakanton descendants. The Circuit, forinstance, found Interior "recognized, of course, thatCongress intended the 1886 Mdewakanton to be thespecific beneficiaries of the Appropriation Acts ...[and] ... adopted a policy designed to promote Con-gress’s intent by assigning lands to individuals fromwithin the group of 1886 Mdewakantons and subse-quently to individuals from within the class of thedescendants of those Mdewakanton."~1

The Federal Circuit further acknowledged In-terior’s role in fulfilling its obligation to the 1886Mdewakanton: "[c]ontemporaneous documents makeclear that the Secretary of the Interior consideredhimself bound by the terms of the statutes to re-serve the usage of the 1886 lands ... [and] heldthe property for the use and benefit of individuals


24

selected from a defined class.’’52 But the Circuit,without analysis to Supreme Court precedent of trustprinciples in Mitchell and its progeny,53 later ex-plained that: "[c]onsistent with the principle thatthere is a ’general trust relationship between theUnited States and the Indian people’... InteriorDepartment officials often characterized the 1886lands as being held in trust for the 1886 Mdewa-kantons and their descendants, even though theywere not a tribe of Indians, but rather were viewed asa group of individuals who had severed their tribalrelations and were in need of assistance."54

The Federal Circuit recognized cognizable andenforceable fiduciary obligations under the Appro-priation Acts to allow the pursuit of remedies in thefederal courts against the United States for violatingthose duties. But, like the Eighth Circuit, the Circuitfound that if Interior’s obligations to a definitive classof Indians affect present-day post-1934 IRA non-tribalcommunity governments, the federal courts have nosubject matter jurisdiction to adjudicate the affectedbeneficiary class’s claims.

In other words, since the benefits derived fromthe 1886 lands presently go to only members of thepost-1934 IRA non-tribal community governments, tothe exclusion of all others who Congress intended, the

Id. at 1243, App. 33.

Mitchell II, 463 U.S. at 225.

Wolfchild, 559 F.3d at 1248, App. 45.

25

excluded Indians have no judicable remedy because ofthe lack of federal subject matter jurisdiction.

On the other hand, the Ninth Circuit recognizesthat when federal obligations are to be enforced,there exists federal subject matter jurisdiction. InUnited States v. Yakima Tribal Court55 and UnitedStates v. White Mountain Apache,~6 the Ninth Circuitheld that United States sovereignty - includingfederal court subject matter jurisdiction - overridestribal sovereignty in matters involving federal statu-tory obligations. Therefore, if the Appropriation Actscreate a federal obligation, the Petitioners are en-titled to subject matter jurisdiction to adjudicate theirclaims against the United States even though theclaims may implicate benefits from lands held intrust by the government for post-1934 IRA non-tribalcommunity governments.

806 F.2d 853 (9th Cir. 1986)

784 F.2d 917 (9th Cir. 1986).

26

II. The United States Initially Enforced ItsObligations to Individual 1886 Mdewa-kanton, But Later Abandoned ThoseObligations in Lieu of Post-1934 IRACommunities and Excluded 1886 Mdewa-kanton From Benefits Derived From the1886 Lands.

The IRA57 was intended to standardize a processfor historical land-owning tribes to formally organ-ize federally-recognized governments. But, the 1886Mdewakanton were not a "historical tribe" because ofthe 1863 Act’s renouncement of the Mdewakanton asa tribe and the Appropriation Acts’ requirement forseverance of tribal relations. Thus, the 1886 Mdewa-kanton "were not privileged to organize as a tribeover various reservations ....,,58 However, under IRA,

§§ 16 and 19, an additional process existed for a non-tribal group of Indians such as the 1886 Mdewakan-ton descendants to organize a government based on"residence on reservation land.’’~

Thus, the only basis of the 1886 Mdewakantonforming a political organization lay with the 1886Mdewakanton "residing on reservation land" - which,in turn, rested on the 1886 Mdewakanton’s legalrights to the 1886 lands. Hence, the names of the

57 Pub. L. 73-383, 48 Stat. 984 (1934) ("1934 IRA").~8 JA4656; JA4659-60.~9 25 U.S.C. § 476 (prior to amendments in Pub. L. 100-581,

Stat. 2938-39 (1988) which contained relevant savings clause at§ 103).

27

organizations are "communities" - reflecting they aresomething less than historical land-owning tribes.6°

Accordingly, in 1936, Interior recognized the Low-er Sioux Indian Community and the Prairie IslandIndian Community. These communities, however, didnot have traditional tribal powers of assigning reser-vation land, condemning member’s land or regulatingthe inheritance of land.61 Further, the Lower Siouxand Prairie Island constitutions incorporated Inte-rior’s 1886 land assignment system to ensure the1886 lands exclusively benefited the 1886 Mdewa-kanton:6~

The land within the territory of the LowerSioux Community which was purchased bythe United States for the MdewakantonSioux residing in the State of Minnesota onMay 20, 1886, and their descendants, may beassigned to any Minnesota MdewakantonSioux entitled thereto .... 63

Interior, not Lower Sioux or Prairie Island, deter-mined who would benefit from the 1886 lands andreside in the respective communities.

6o See Felix Cohen, Basic Memorandum on the Drafting of

Tribal Constitutions 5 (David E. Wilkins, ed., Univ. of Okla.Press 2006).

61 JA4660; JA1952; JA1990.

~2 JA1952; JA1990; JA4660.

63 App. 129.

28

In 1969, 35 years after the enactment of the 1934IRA, Interior again played the major role in theShakopee Mdewakanton Sioux Community’s constitu-tion’s adoption. Interior approved the Shakopee Con-stitution despite the absence of 1934 IRA prescrip-tions to preserve existing United States’ obligationsand trusts to a recognized band of Indians - the 1886Mdewakanton. Among 1886 Mdewakanton whochartered the Shakopee Community and Constitutionand became members were non-1886 Mdewakanton.

The Shakopee Constitution was diametricallyopposite to the Prairie Island and Lower Sioux Com-munities’ constitutions regarding membership, and,significantly, regarding the preservation of 1886lands for the 1886 Mdewakanton. For years after-ward, Interior reviewed land assignments at Shako-pee and insisted on proof of lineal descendency of1886 Mdewakanton; but, from the start, land assign-ments were controversial and difficult for Interior’sBureau of Indian Affairs regional office to manage:

Land assignments on 1886 Mdewakantonlands will be issued only to persons who canprove descendency from the 1886 Mdewa-kanton residents... However, no action willbe taken at this time to cancel or disturb anyexisting assignments as a result of thispolicy statement.64

~ JA04719.

29

By the time of the 1980 Act’s passage, in whichthe United States would then hold 1886 lands in trustfor the three communities, Interior was well aware ofthe need to verify the 1886 descendancy for landassignments. Interior instead supported a policy thatleft the land assignments to the three post-1934 non-tribal community governments whose membershiphad been corrupted by the actions of Interior. Interiorallowed land and the benefits derived from the 1886Lands to be shared among those without 1886Mdewakanton descendancy.

The United States knew of and approved theindiscretion of Shakopee to allow non-1886 Mdewa-kanton to enjoy benefits of and derived from the 1886lands to the exclusion of others. Interior’s complicityis affirmed in 1983: "[T]he [1983] Enrollment Ordi-nance contains the name of 33 individuals ... Theseindividuals are to be considered members of theShakopee Mdewakanton Sioux Community regard-less of their blood degree.’’6~

Thus, Interior allowed and affirmed its approvalof the inclusion of non-lineal Mdewakanton amonglineal descendants of 1886 Mdewakanton.6~

With Interior’s complicity and approval, Commu-nities’ policies led to the complete exclusion of 1886Mdewakanton denying them any benefits to or from

JA04747.

See also, Babbitt, 107 F.3d at 669-70.

3O

1886 lands. By 1988, Shakopee closed its membershipto the current members including the non-1886Mdewakanton. Prairie Island and Lower Siouxfollowed Shakopee’s example.

In conjunction with Interior’s complicity, theShakopee Community Court, created in about 1988,while admitting to genealogical controversies, itrefused to assert jurisdiction to exclude the non-1886Mdewakanton or to include the 1886 Mdewakanton:

Suffice it to say that the files of the federalcourts and federal agencies ... are litteredwith records of disputes which had, at theirbase, understandable desires on the part ofsome to participate in the Community’s re-sources, justifiable fears that such partici-pation would be denied by others, andprofound doubts that there was any forumwhich had jurisdiction to respond.67

Thus, even the Shakopee Community Court is inaccord with the Federal Circuit and Eighth Circuitdecisions denying Petitioners’ jurisdiction to enforcefederal obligations over 1886 lands. But, under Car-cieri and the Ninth Circuit decisions, federal courtsubject matter jurisdiction exists over claims of statu-tory violations by Interior - presumably even thoseinvolving a post-1934 Act non-tribal community gov-ernment.

67 Ross v. SMS(D)C, 1 Shak. 86, 87 (July 17, 1992), App.144.

31

This Court should consider, after Carcieri, thatfederal courts have subject matter jurisdiction to hearIndian statutory violation claims against the UnitedStates. The Eighth Circuit decision in Smith v. Bab-bitt - and now the Federal Circuit decision - haveraised substantial doubts if federal court subjectmatter jurisdiction exists.

III. The Federal Circuit’s Statutory Inter-pretation of the Appropriation ActsContradicts Supreme Court Precedent inMitchell I, Mitchell II, White MountainApache, Navajo I, Navajo II and Carcieri.

The Federal Circuit reversed the trial court onthe first certified question regarding the Appropria-tion Acts imposing a statutory duty on the Secretaryof Interior regarding Mdewakanton beneficiaries:

[ ... ] And all of said money which is to beexpended for lands [by the Interior Secre-tary] ... shall be so expended that each ofthe Indians in this paragraph shall receive,as nearly as practicable, an equal amount inthe value of the appropriation.6s

Lands were purchased under the Appropriation Actsthat are currently held in trust by the United States.The Federal Circuit denied the Appropriation Actscreated a "trust" and in its stead adopted a "statu-tory use restriction" as a substitute to statutory

App. 154-55.

32

interpretative analysis regarding the application ofIndian trust law - all in direct conflict with SupremeCourt precedent regarding statutory interpretation.

The Federal Circuit provided a one-sentence,forty-two word textual analysis to shift the legalframework in determining the legal responsibilitiesand liabilities between the federal government andNative Americans:

That clause, which the record materials sug-gest was added because of complaints thatthe funds from an earlier appropriation weredisproportionately distributed, provides suchminimal direction that it is plainly insuffi-cient to convert what would otherwise be anappropriation into a trust.69

The Federal Circuit’s one-sentence analysis vio-lated Supreme Court statutory interpretative princi-ples governing Native American trust cases:

¯ The "Substantive Source of Law" doc-trine ("Navajo i,,)70 and ("Navajo//");

¯ the "Plain Meaning Rule" (Carcieri);

¯ "The Word ’Trust’ In the Law Is NotNecessary to Create an Indian Trust"doctrine ("Mitchell I") and ("MitchellH"); and


7o United States v. Navajo Nation, 537 U.S. 488 (2003).

33

¯ The Fair Inference Rule of Mitchell H(also applied in United States v. WhiteMountain Apache. )71

First, the Federal Circuit’s decision contradictswith the principles of statutory construction ex-pressed in Navajo H:

In Navajo I, we reiterated that the analysismust begin with "specific rights-creating orduty-imposing statutory or regulatory pre-scriptions." 537 U.S., at 506, 123 S.Ct. 1079.If a plaintiff identifies such a prescription,and if that prescription bears the hallmarksof a "conventional fiduciary relationship,"White Mountain, 537 U.S., at 473, 123 S.Ct.1126, then trust principles (including anysuch principles premised on "control") couldplay a role in "inferring that the trustobligation [is] enforceable by damages," id.,at 477, 123 S.Ct. 1126. But that must be thesecond step of the analysis, not the startingpoint.72

The Federal Circuit found a "statutory use restric-tion" suggesting either a substantive right or duty-imposing prescription, but stopped its analysis there.The court avoided further trust analysis as it relatesto a conventional fiduciary relationship although the

7~ United States v. White Mountain Apache Tribe, 537 U.S.

465 (2003); See also, Duncan v. United States, 667 F.2d 36 (Ct.C1. 1981).

7~ Navajo Nation II, 129 S.Ct. at 1558.

34

Appropriation Acts contain specific Congressionaldirectives: "each of the Indians in this paragraphshall receive, as nearly as practicable, an equalamount in the value of the appropriation."73 TheFederal Circuit violated the statutory interpretativeapproach dictated by Navajo H.

Second, put another way, the Federal Circuit’sone-sentence analysis ignored the Plain MeaningRule most recently applied in Carcieri:

This case requires us to apply settled prin-ciples of statutory construction under whichwe must first determine whether the statu-tory text is plain and unambiguous. UnitedStates v. Gonzales, 520 U.S. 1, 4, 117 S.Ct.1032, 137 L.Ed.2d 132 (1997). If it is, wemust apply the statute according to itsterms.TM

The Circuit avoided interpreting the Appropria-tion Acts’ plain language that the Secretary of theInterior was to ensure each Indian beneficiary "shallreceive, as nearly as practicable, an equal amount invalue of this appropriation." Without analyzing thetext, the Federal Circuit concluded the statute pro-vided "minimal direction" and there was no trust dutyon the Secretary of the Interior to the Petitionersregarding the "lands" purchased.

App. 154-55.

Navajo Nation II, 129 S.Ct. at 1558 (citations omitted).

35

Third, the Federal Circuit’s decision contradictsMitchell H and White Mountain Apache. The Su-preme Court in Mitchell H held that the word "trust"is not necessary in a law to create statutory trustobligations on the United States. 7~

The Federal Circuit, to the contrary, requiredmore than what Mitchell H demands. The Courtrequired the word "reservation" or "trust" expressedwithin the Acts.

As the Mitchell H Court stated, "[a]ll of the nec-essary elements of a common-law trust are present: atrustee (the government), a beneficiary (the Indianallottees), and a trust corpus (Indian timber, lands,

and funds)." Id. at 225. But, the Federal Circuit failedto recognize that all the necessary elements of acommon law trust are present in the Wolfchild case: atrustee (Secretary of the Interior), beneficiaries (peti-tioners) and a trust corpus (1886 lands).

The Federal Circuit’s decision also contradictsWhite Mountain Apache. In White Mountain Apache,the Court held under the fair inference rule that a1960 Congressional Act at issue created fiduciary

duties on Interior:

The 1960 Act goes beyond a bare trust andpermits a fair inference that the Governmentis subject to duties as a trustee and liable in

75 Mitchell II, 463 U.S. at 225-26; see also, Carcieri, at 129

S.Ct. at 1063-64.

36

damages for breach .... [T]he fact that theproperty occupied by the United States isexpressly subject to a trust supports a fairinference that an obligation to preserve theproperty improvements was incumbent onthe United States as trustee .... "One of thefundamental common-law duties of a trusteeis to preserve and maintain trust assets."76

The Federal Circuit did not apply the fair inferencerule.

In summary, because the Appropriation Actsplace an express statutory duty on the Secretary ofthe Interior to ensure that 1886 Mdewakanton bene-ficiaries "shall receive, as nearly as practicable, anequal amount in value of this appropriation" - thereis more evidence of statutory intent of a trust obli-gation than the minimal requirements of Mitchell Hand White Mountain Apache require and somethingmore than a "statutory use restriction." Therefore,the Federal Circuit’s analysis not only contradictsMitchell H and White Mountain Apache, but repre-sents a major shift in interpretation of statutes andin application of trust principles to Native Americanstatutes.

The doctrinal shift is further evidenced by theFederal Circuit’s decision not to apply its own pre-sumption that "Congress is knowledgeable about

76 White Mountain Apache Tribe, 537 U.S. at 474-77

(footnotes and citations omitted).

37

existing law pertinent to legislation it enacts.’’77 Thispresumption and deference to the common law gov-erning the statutory enactments at the time of pas-sage, requires the application of the then known trustlaw to ascertain whether Congress intended to createa trust. This presumption is consistent with trustlaw:

In construing an inter vivos trust, the pro-visions of the trust are to be governed by thelaw existing at the time of its creation, notthe law and public policy in effect at the timethe construed words will take effect, absent acontrary intention within the instrumentitself.TM

This requires an analysis of Congress’ presump-tion of knowledge. In this case, the Federal Circuitdid not do the required analysis. The applicable trustlaw at the time of enactment is essential to statutoryinterpretative analysis in Indian trust law cases. Forexample, A Practical Treatise on the Law of Trust, vol.

1, 24 (Thomas Lewin, Frederick Lewin and James H.Flint, 1st Am. ed., Charles H. Edson 1888) finds inthe creation of a trust that a person,

77 See, e.g., Canadian Lumber Trade Alliance v. United

States, 517 F.3d 1319, 1343 (Fed. Cir. 2008), quoting Bristol-Myers Squibb Co. v. Royce Lab., 69 F.3d 1130, 1136 (Fed. Cir.1995) (internal quotation omitted).

78 76 Am. Jur. 2d Trusts § 36 (2008) (citations omitted)

(emphasis added).

38

[N]eed only make his meaning clear as to theinterest he intends to give, without regard-ing the technical terms of the common law inlimitation of legal estates.., provided wordsbe used which thought not technical are yetpopularly equivalent, or the intention other-wise sufficiently appears upon the face of theinstrument.79

Congress used the popular equivalent of "trust"language when it created an express statutory dutyon the Secretary of the Interior that the Indian bene-ficiaries "shall receive, as nearly as practicable, anequal amount in value of this appropriation." TheFederal Circuit’s absence of analysis regarding Con-gressional presumptive knowledge of trust law at thetime of enactment reflects a lapse in statutory trustanalysis.

The Federal Circuit decision further conflictswith the principles espoused in its predecessor UnitedStates Court of Claims in Duncan v. United States.s°

The Duncan court explained that: "it is difficult to seewhy Congress should have to do more to create anIndian trust than a private settlor would have to doto establish a private trust.’’81 Under Duncan, if an

79 Id. at 147-48 (emphasis added). See also, id. at 70, 71

n. 1; A Treatise on the Law of Trusts and Estates, vol. 1, 68(Jarias Ware Perry, 4th ed., Little Brown, 1889).

8o Duncan v. United States, 229 Ct. C1. 120, 667 F.2d 36

(1981).81 667 F.2d at 42 n. 10.

39

appropriation act text would create a private trust,then the same text in public law creates a trust, too.Thus, if a private person who accepted an expressduty to ensure that certain beneficiaries "shall re-ceive, as nearly as practicable, an equal amount invalue of this appropriation" is a trustee, then theSecretary of the Interior is also a trustee by the samelanguage found in the Appropriation Acts. The Fed-eral Circuit’s one-sentence analysis contradicts Dun-can’s principle that "Congress should not have to domore than a private settlor to create a trust."

Ultimately, the Federal Circuit’s statutory inter-pretative approach towards Congressional Acts shiftsaway from 30 years of Supreme Court precedent inNative American trust cases: Mitchell I, Mitchell II,Navajo Nation I, White Mountain Apache, NavajoNation H and Carcieri. The Supreme Court shouldgrant review to ultimately determine whether theFederal Circuit’s doctrinal shift espoused in Wolfchildhas eviscerated, modified, or undermined this Court’sinterpretative analysis of Indian trust law.

4O

The Federal Circuit’s Statutory Interpre-tative Approach on the Second CertifiedQuestion Contradicts the Plain MeaningRule, Carcieri, 25 U.S.C. § 462, Passama-quoddy’s "Plain and Unambiguous"Requirement and Established Congres-sional Practice Regarding Indian TrustTermination.

The Wolfchild Federal Circuit decision is con-trary to Carcieri, 25 U.S.C. § 462, and ultimately asthe decision pertains to trust terminations as foundin Passarnaquoddy Tribe.8~ In the first instance, theCircuit found Carcieri not relevant to the questionsbefore it.83 Simply, the Federal Circuit held that thepost-1934 IRA non-tribal community governments arethe exclusive beneficiaries of the lands purchasedunder the 1888, 1889 and 1890 Appropriation Acts.But, the Circuit’s holding is contrary to Carcieri andtherefore Carcieri is relevant.

Carcieri relates to the legal identity of the PrairieIsland, Lower Sioux, and Shakopee Communities un-der the 1934 IRA. The legal basis under the 1934IRA for the federally-recognized community govern-ments was the 1886 Loyal Mdewakanton residing on

s2 Joint Tribal Council of the Passamaquoddy Tribe v.

Morton, 528 F.2d 370, 380 (C.A. Me. 1975).s3 The court did acknowledge Petitioners’ notification of

Carcieri, but dismissed its relevancy in a footnote. Id. at 1251,n. 8, App. 53. Carcieri was issued two weeks before the Circuit’sissued decision.

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reservation lands - the 1886 lands. Furthermore, thisstatutorily-defined class of beneficiaries is a "band"-not a "tribe" - of Loyal Mdewakanton. This "band"was found by Interior to be under federal jurisdictionin 1934.

Thus, if there were any "ownership interests" inthe 1886 lands, it was those of the 1886 Mdewakan-ton and their descendants in 1934, not the politicalgovernments created 2 or 35 years later. The FederalCircuit concluded that:

[A]s of the time of the 1980 Act, those landswere being held by the Department of theInterior for use by the 1886 Mdewakantonsand their descendants pending an ultimatelegislative determination as to how theownership interests in the lands should beallocated. That determination came in 1980,when Congress provided that legal title inthe lands would be held by the UnitedStates, which would hold the lands in trustfor the three communities.~

The Federal Circuit’s conclusion is antithetical tothis Court’s holding in Carcieri. The Circuit’s deci-sion, not to apply the Carcieri reasoning as it appliesto the 1934 IRA, goes directly to whether the instantPetitioners or other Native Americans and NativeAmerican tribes will have federal courts to adjudicatetheir claims. As Carcieri explained:


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[F]or purposes of [IRA] § 479, the phrase"now under Federal jurisdiction" refers to atribe that was under federal jurisdiction atthe time of the statute’s enactment. As aresult, § 479 limits the Secretary’s authorityto taking land into trust for the purpose ofproviding land to members of a tribe thatwas under federal jurisdiction when the IRAwas enacted in June 1934. Because therecord in this case establishes that theNarragansett Tribe was not under federaljurisdiction when the IRA was enacted, theSecretary does not have the authority to takethe parcel at issue into trust.85

Thus, Carcieri suggests that the MinnesotaMdewakanton post-1934 IRA non-tribal communitygovernments established in 1936 (two) and in 1969(one) are not "Indian tribes" under § 476. Here, theMdewakanton Communities do not have a legal iden-tity independent, separate and apart from the 1886Mdewakanton under the IRA. Consequently, there isnothing in the 1980 Act’s references to each of theMdewakanton Communities to suggest Congressionalintent to exclude 95% of the 1886 Mdewakanton fromthe subject matter of the Appropriation Acts - the1886 lands and benefits derived therefrom - to allow5% of the 1886 Mdewakanton and non-1886 Mdewa-kanton to receive 100% of the 1886 lands and itsbenefits.

85 Carcieri, 129 S.Ct. at 1061.

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Carcieri reinforces this point. The Federal Circuitwas required, in light of Carcieri, to determinewhether the Communities have a legal identityindependent, separate and apart from the petitioners,who as original beneficiaries under the AppropriationActs did in fact have a legal identity under the 1934IRA. Instead, the Circuit found the 1980 Congres-

sional Act as an alteration of the ownership status of1886 lands:

whereby the United States would hold legaltitle to the lands and each of the com-munities would hold equitable title to theportions of the 1886 lands allocated to it.86

But, Carcieri required the Federal Circuit to answerwho is the ultimate beneficiary of the "lands" afterthe 1980 Act. The Federal Circuit refused to do so -finding Carcieri not relevant. The Federal Circuit’sdecision not to apply Carcieri and failure to answerthis question - leaves a legal quagmire for the trialcourt to resolve.

Importantly, 25 U.S.C. § 462, part of the 1934IRA, continued all Indian land beneficiary rightsunless terminated by Congressional enactment:

The existing periods of trust placed upon anyIndian lands and any restriction on aliena-tion thereof are extended and continued untilotherwise directed by Congress.

86 Wolfchild, 559 F.3d at 1255, App. 62-63.

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Another important question under 25 U.S.C.§ 462 in this case is whether Congress is required to"plainly and unambiguously" terminate Indian bene-ficiary rights. The Federal Circuit did not apply a"plain and unambiguous" legal standard in deter-mining whether the 1980 Act was a trust terminationact.

The Federal Circuit’s failure to apply the "plainand unambiguous" legal standard contradicts long-standing precedent of the U.S. Court of Appealsregarding statutory trust termination: "[A]ny with-drawal of trust obligations by Congress [with Indians]would have to have been ’plain and unambiguous’ tobe effective."87 Passamaquoddy’s legal standard is

consistent with 25 U.S.C. § 462 which extends allNative American trust beneficiary rights in perpe-tuity and requires Congress to provide "directions" toterminate Indian trust beneficiary rights.

Moreover, Passamaquoddy’s legal standard isconsistent with the law of trusts which provides thatany termination or modification of a trust must bedone by "clear and convincing evidence."Ss The pri-mary concern is that beneficiaries receive adequatenotice of enactment of the trust termination act beforeenactment of the trust termination act - presumablyso they can lobby against it.

~ Joint Tribal Council of the Passamaquoddy Tribe, 528F.2d at 380 (emphasis added).

s8 Restatement (Third) of Trusts § 63(3) (2003).

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As the U.S. Court of Federal Claims recognized,absent in the 1980 Act is Congressional use of the"plain and unambiguous" language to terminate thegovernment’s trust obligations to the Indian benefi-ciaries as found in earlier trust termination acts.s9

The petitiongranted.

CONCLUSION

for writ of certiorari should be

Respectfully submitted,

ERICK G. KAARDAL

Counsel of RecordWILLIAM F. MOHRMAN

MOHRMAN ~ KAARDAL, P.A.

33 South Sixth StreetSuite 4100Minneapolis, Minnesota 55402(612) 341-1074

Attorneys for Petitioners

89 See 25 U.S.C. § 677 (Ute Tribe); 25 U.S.C. § 564 (KlamathTribe); 25 U.S.C. § 741 (Paiute Tribe); 25 U.S.C. § 691 (certaintribes and bands of Indians located in western Oregon); 70 Stat.893 (Wyandotte Tribe); 70 Stat. 937 (Peoria Tribe); 70 Stat. 963(Ottawa Tribe); 65 Stat. 250 (Menominee Tribe); and 25 U.S.C.§ 980 (Ponca Tribe).

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