United States Court Of Appeals For The Eighth Circuit

Transcription

1 United States Court Of Appeals For The Eighth Circuit No Sheldon Peters Wolfchild; Ernie Peters Longwalker; Scott Adolphson; Morris Pendleton; Barbara Buttes; Thomas Smith, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Redwood County; Paxton Township; Sherman Township; Honner Township; Renville County; Birch Cooley Township; Sibley County; Moltke Township; John Goelz, III; Gerald H. Hosek; Allen J. Kokesch; Jacalyn S. Kokesch; Paul W. Schroeder; Karen J. Schroeder; Chad M. Lund; Amy M. Lund; Rockford L. Crooks; Janie K. Crooks; UT School District; Episcopal Diocese of Minnesota; Michael R. Rasmussen; Lee H. Guggisberg Trust UWT; Patrick T. Hansen; Nancy S. Hansen; Kelly M. Lipinski; Cynthia Johnson; Mitchell H. Unruh; William Schmidt; Norma Schmidt; Prouty Properties LLC; Robert D. Rebstock; Lori A. Rebstock; Allan D. Eller; Elmer C. Dahms; Barbara L. Dahms; Marlene A. Platt, RT; Eugene A. Engstrom; Enid Guggisberg; Melvin W. Maddock; Kerry D. Maddock; Thomas J. Heiling; Keefe Family Farm LLC; Larry Lussenhop; Jon Lussenhop; TJ & CC Properties LLC; Dennis A. Auslam; Michelle D. Auslam; Dale R. Hanna; Nancy Hanna; Harold Guggisberg; Sandra Clarken; Julie Anna Guggisberg; Steven R. Helmer; Dawn R. Helmer; George F. Schottenbauer; John Goeltz; Alice Goeltz; Francis Goeltz; Edward J. Gaasch; Simmons Valley Trust; John C. Simmons; Mary J. Simmons; John (L.) Hogan; Timothy H. Kerkhoff; Theresa J. Kerkhoff; Sherman Acres LLC; Kenneth Larsen; Henry G. O'Neil; Judith A. O'Neil; Charles D. Neitzel; Scott A. Olafson; Kimberly A. Olafson; Kim M. Cunningham; John H. Reynolds; Jeanne A. Reynolds; Douglas Scherer; Brenda Scherer; Willard Scherer; Eugenie Scherer; Bruce Robert Black; Lila L. Black; Neil and Donna Berger Family; Charles Case; Lyle Black Living Trust; Lower Sioux Indian Community; Doe Nos , Defendants-Appellees. APPELLANTS PRINCIPAL BRIEF

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv SUMMARY OF THE CASE... 7 CORPORATE DISCLOSURE STATEMENT... 8 JURISDICTIONAL STATEMENT... 9 STATEMENT OF ISSUES STATEMENT OF THE CASE I. The 1862 uprising of the Minnesota Sioux Indians begins with United States breach of its treaty obligations to the Minnesota Sioux A. The United States response to the uprising overreaches causing harm to Loyal Mdewakanton Sioux who sought to uphold their treaty obligations Congressional overreaction leaves Loyal Mdewakanton poverty-stricken and homeless Congress responds to its own overreaching reaction to the 1862 uprising with the passage of the 1863 Act Any question of the 1863 Act beneficiaries is answered by the United States 2012 administrative action identifying source documents for the Mdewakanton Band members White hostility stops the tribal Mdewakanton Band from taking possession of their land II. The Mdewakanton Band is under federal jurisdiction in 1934 and today A. The federal government, as recently as 2012 affirmed the Mdewakanton Band as under federal jurisdiction in 1934 without regard to the status of the Lower Sioux Indian Community The Appellants as lineal descendants remain as members of the Mdewakanton Band i

3 2. The Appellee Lower Sioux Indian Community is not a tribe, but rather an administrative non-tribal subgroup subject to a corporate charter with limited powers as delegated by the Department The Mdewakanton Band reservations were not terminated in the Termination Era of Federal Policy ( ) III. The pre-enactment legislative history of the 1980 Act includes the Department s inaccurate representations of the Mdewakanton Band and its subgroup communities to Congress A. The United States repurchase of 1863 Act lands contradicts the unrepealed 1863 Act and calls in question what if any lands were transferred in trust for Lower Sioux Indian Community under the 1980 Act B. The Defendants continue to occupy and possess the Mdewakanton Band reservation in Redwood, Renville and Sibley Counties C. The county property records show Appellee Lower Sioux Indian Community and the other Appellees holding possession of the lands subject to the 1863 Act SUMMARY OF ARGUMENT ARGUMENT I. The standard of review for a Rule 12 dismissal is de novo II. The statutory canons favoring American Indians apply to the Mdewakanton Band III. The tribal Mdewakanton Band which constitutes the proposed Plaintiffs Class is represented by the Appellants in this litigation IV. The Mdewakanton Band s claim to right of possession under the 1863 Act to a 12 square mile reservation survive the LSIC s assertion of tribal sovereign immunity A. The non-tribal subgroup communities cannot use tribal sovereign immunity to usurp the tribal Mdewakanton Band and its reservation lands B. The 1994 amendments, codified at 25 U.S.C. 476 (f) and (g), are vague and ambiguous and do not apply to the communities which are non-tribal ii

4 subgroup communities of and subordinate to the tribal Mdewakanton Band C. Tribal sovereign immunity does not apply because LSIC is not a tribe with tribal sovereign immunity D. Tribal sovereign immunity does not apply to protect subgroup communities of a tribe from suit by the tribe V. The lower court erred by dismissing the First Amended Complaint on defenses of no private cause of action and an equitable bar A. Oneida I and Oneida II apply to the First Amended Complaint and uphold Indian land claims against defenses of no private cause of action and against defenses of limitations, abatement, ratification or doctrine of nonjusticiability B. Sherrill s non-rigid equitable bar does not apply to the First Amended Complaint The lower court decision impermissibly conflates the Appellants substantive rights with remedial questions The lower court s application of an equitable bar effectively repealed the 1863 Act violating Congress exclusive Article I power to enact laws The claims of the plaintiffs in the Sherrill and post-sherrill cases are legally distinguishable from the claims in the First Amended Complaint Applying the equitable bar at the Rule 12 motion stage was premature under the circumstances of this case The lower court erred by applying the equitable bar to the legal claim for trespass money damages CONCLUSION iii

5 TABLE OF AUTHORITIES Cases Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8 th Cir. 2009) Canadian St. Regis Band of Mohawk Indians v. New York, 146 F. Supp. 2d 170 (N.D.N.Y. 2001) Canadian St. Regis Bank of Mohawk Indians v. New York, No. 5:82-CV-0783, 2013 WL (N.D.N.Y. July 23, 2013)... 58, 61, 63 Carcieri v. Salazar, 555 U.S. 379 (2009)... passim Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005)... 60, 64 City of Sherrill, N. Y. v. Oneida Indian Nation of New York, 554 U.S. 197 (2005)... passim County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985)... passim Crooks v. SMS(D)C, 1 Shak. A.C. 140 (1998) Ewert v. Bluejacket, 259 U.S. 129 (1922) Fannie v. Chamberlain Mfg. Corp, Derry Div., 445 F. Supp. 65 (W.D. Pa. 1977) Johnson v. City of Shelby, Miss., 135 S. Ct. 346 (2014) Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823) Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me.) Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F. 2d 370, 380 (C.A. Me. 1975) Kaufhold v. Caiafa, 872 F. Supp. 2d 374 (D.N.J. 2012) Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) Lower Sioux Indian Cmty. in Minnesota v. United States, 231 Ct. Cl. 1037, 1037 (1982) McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980) Narragansett Tribe of Indians v. Murphy, 426 F. Supp. 132 (D.R.I. 1976) Narragansett Tribe of Indians v. Southern R.I. Land Dev. Co., 418 F. Supp. 798 (D.R.I. 1976) Native American Mohegans v. U.S., 184 F.Supp.2d 198 (D.Conn. 2002) Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)... passim Oneida Indian Nation of New York v. Cnty. of Oneida, 617 F.3d 114 (2d Cir. 2010). 58, 60, 62 Onondaga Nation v. New York, 500 F. App'x 87 (2d Cir. 2012) iv

6 Onondaga Nation v. State Of N.Y., No. 5:05-CV-0314 LEK RFT, 2010 WL , (N.D.N.Y. Sept. 22, 2010) Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct (2014) Ross v. SMS(D)C, 1 Shak. T.C. 86 (1992) Shakopee Mdewakanton Sioux (Dakota) Cmty v. Babbitt, 906 F. Supp. 513 (D. Minn. 1995) Shenandoah v. United States Dept. of Interior, 159 F.3d 708 (2d Cir. 1998) Short v. United States, 661 F.2d 150 (Ct. Cl. 1981)... 10, 37, 38, 41 Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996) Smith v. SMS(D)C, 1 Shak. A.C. 62 (1997) Stockbridge-Munsee Cmty. v. New York, 756 F.3d 163 (2d Cir. 2014)... 58, 61, 62 Taxi Connection v. Dakota, Minn. & E.R.R. Corp., 513 F.3d 823 (8th Cir.2008) U.S. v. 2, Acres of Land, More or Less, Situate in Corson County, S.D., 160 F. Supp. 193 (D.S.D. 1958) U.S. v. Drummond, 42 F. Supp. 958 (W.D. Okla. 1941) United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986) Wampanoag Tribal Council of Gay Head v. Town of Gay Head, No. 74-cv-5826 (D. Mass.) Western Pequot Tribe of Indians v. Holdridge Enters. Inc., No. H76-cv-193 (D. Conn.) Wolfchild v. Redwood Cnty., No. CIV MJD/FLN, 2015 WL (D. Minn. Mar. 5, 2015) Wolfchild v. United States, 559 F.3d 1228 (2009)(Wolfchild VI)... 16, 30, 33 Wolfchild v. United States, 731 F.3d 1280 (Fed. Cir. 2013)(Wolfchild X)... 12, 20 Wolfchild v. United States, 62 Fed. Cl. 521 (2004)(Wolfchild I) Wolfchild v. United States, 72 Fed. Cl. 511 (2006)(Wolfchild III)... 40, 46 Wolfchild v. United States, 77 Fed. Cl. 22 (2007)(Wolfchild IV) Wolfchild v. United States, 78 Fed. Cl. 472 (2007)(Wolfchild V) Wolfchild v. United States, 96 Fed. Cl. 302 (2010)(Wolfchild VII)... 14, 15, 30 Wolfchild v. United States, 101 Fed. Cl. 54 (Fed. Cl. 2011)(Wolfchild VIII)... passim Zephier v. United States, 134 S. Ct. 1516, 188 L. Ed. 2d 463 (2014) Statutes 25 U.S.C , 50, U.S.C v

7 25 U.S.C U.S.C U.S.C passim 25 U.S.C U.S.C U.S.C Other Authorities A. Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, (1998) Act of Dec. 19, , 32 Act of Feb. 16, , 15, 16, 17 Act of June 18, , 45 Act of Mar. 3, Cohen s Handbook of Federal Indian Law (2005 ed.)... 25, 30 Cong. Globe, 38th Cong., 1st Sess (1864) Federal Register, Vol. 77, No. 190 (October 1, 2012)... 20, 23 H.R.Rep. No (1980) Literary Texts and the Roman Historian, David Potter, at 12, quoting Cic. De. orat (Routledeg 2005) S.Rep. No (1980) Rules Federal Rule of Civil Procedure 12(b)(1) Federal Rule of Civil Procedure 12(b)(6) vi

8 SUMMARY OF THE CASE The Appellants, members of the tribal Mdewakanton Band, seek the right of possession to 12 square miles of lands under the 1863 Act which the Secretary of the Interior designated for the Mdewakanton Band forever. The lower court dismissed the First Amended Complaint on the grounds of tribal sovereign immunity, lack of a private cause of action and the Sherrill equitable bar. The Mdewakanton Band represents the only tribe with the right to possess the 12 square miles under the 1863 Act. The Mdewakanton Band was recognized at the time Congress enacted the 1934 Indian Reorganization Act and exists today; whereas, its three post-1934 subgroup communities, including Appellee LSIC, were established in 1936 and A private cause of action exists for the Appellants because Oneida I and Oneida II provide federal common law claims of ejectment and trespass for American Indian land claims. The Sherrill equitable bar does not apply to the 1863 Act. Since the 1863 Act grants the Mdewakanton Band an immediate right to possession of the land, the lower court s equitable bar is effectively a repeal of the 1863 violating Congress Article I legislative prerogative. Further, the Sherrill and post-sherrill cases are distinguishable because the Mdewakanton Band has never transferred its right to possession under the 1863 Act. We respectively request 30 minutes for oral argument. 7

9 CORPORATE DISCLOSURE STATEMENT Under Federal Rule of Appellate Procedure Rule 26.1 and Local Rule 26.1A, each of the named Appellants is an individual and is not a corporate entity. Appellants, other than Sheldon Peters Wolfchild and Morris Pendleton, do not have a current interest in any corporation nor are otherwise affiliated with any corporate entity regarding this appeal. Wolfchild and Pendleton are current members of the federal non-profit membership corporation called Lower Sioux Indian Community. 8

10 JURISDICTIONAL STATEMENT The United States District Court for the District of Minnesota issued a final judgment on March 5, The district court acknowledged federal question jurisdiction of the underlying action under 28 U.S.C Under 28 U.S.C. 1291, the court of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States. Appellants counsel filed the Notice of Appeal on March 19,

11 STATEMENT OF ISSUES I. Whether claims under the 1863 Act made by the Appellants to possess a 12 square mile reservation granted to the Mdewakanton Band should survive the Lower Sioux Indian Community s assertion of tribal sovereign immunity. Apposite Cases: Carcieri v. Salazar, 555 U.S. 379 (2009). Short v. United States, 661 F.2d 150 (Ct. Cl. 1981). Apposite Statutes: Act of Feb. 16, 1863, 12 Stat. 652 (1863 Act) Act of Mar. 3, 1863, 12 Stat. 819 Indian Reorganization Act of 1934, Pub. L , 48 Stat. 984 (1934), 25 U.S.C (IRA) Act of Dec. 19, 1980, Pub. L , 94 Stat. 326 (1980 Act) II. Whether there exists one tribal Mdewakanton Band who with its three sub-group communities has the right to possession under the 1863 Act to lands specifically identified for the Mdewakanton Band by the Secretary of the Interior in Apposite Cases and Statutes: same as those provided above as to issue I. 10

12 III. Whether, under Oneida I, Oneida II, Sherrill and post-sherrill decisions, Appellants have a private cause of action in federal common law claims of ejectment and trespass without application of an equitable bar. Apposite Cases: Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)(Oneida I). County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985)(Oneida II). City of Sherrill, N. Y. v. Oneida Indian Nation of New York, 554 U.S. 197 (2005)(Sherrill). 11

13 STATEMENT OF THE CASE This case is ingrained in the intertwined, inextricable relationship between the American Indian and the United States. The question to resolve is whether promises made to a small group of American Indians created obligations on the part of the United States that remain in effect. 1 It is the legal history that provides the foundation of the Appellants claims. We are guided by Cicero s oratorio: [W]ho does not know that the first law of history is that one should not dare to say anything false, then that he should fail to say something is true. 2 The central factual premise that remains uncontroverted is that an 1863 Act of Congress, which currently grants the right of possession because it has never been repealed, has the core phrase [t]he land so set apart... shall not be aliened or devised, except by the consent of the President of the United States, but shall be an inheritance to said Indians and their heirs forever. 3 The Act arose from a Congressional recognition that not all Mdewakanton Band members and other Dakota Indians took arms against white settlers in Minnesota during an uprising in 1862, but that a few hundred of them sought to save the white settlers. Their subsequent impoverishment 1 Wolfchild v. United States, 731 F.3d 1280, 1295 (Fed. Cir. 2013) (Wolfchild X) (Reyna, J., dissenting), cert. denied, 134 S. Ct. 1516, 188 L. Ed. 2d 463 (2014) and cert. denied sub nom. Zephier v. United States, 134 S. Ct. 1516, 188 L. Ed. 2d 463 (2014). 2 Literary Texts and the Roman Historian, David Potter, at 12, quoting Cic. De. orat (Routledeg 2005). 3 Act of Feb. 16, 1863, 9, 12 Stat. at

14 demanded the mercy of the federal government who acted to ensure lands were made available to them while those hostile to the white settlers were banished from Minnesota. In 1865, the Secretary of the Interior identified and set aside 12 square miles in Minnesota for the Mdewakanton Band. However, the impoverished Mdewakanton Band was prevented from possession of those identified lands because of continued white hostility against the Indians, even though the 1863 Act and its right of possession for the Mdewakanton Band remained intact. With Congress 1934 enactment of the Indian Reorganization Act (IRA), the Mdewakanton Band continued to reside in Minnesota and remained under federal jurisdiction. In 1937 and later 1969, three Mdewakanton Band sub-group communities in three different Minnesota locations would arise under the IRA, none of which, as the federal government recognizes, constitutes a tribe. 4 The communities, including the Lower Sioux Indian Community created in 1937 by a federal corporate charter (with specific provisions to sue and be sued), 5 would in the 1980 s close membership and thus, remain, as they always were, sub-groups of the Mdewakanton Band. 4 Opinion of the Solicitor dated April 15, 1938, vol. 1, 813, The Lower Sioux Indian Community Corporate Charter is not part of the record on appeal, but Appellants have brought a simultaneous motion to take judicial notice of the document. 13

15 The Mdewakanton Band is a tribe with right to possess the 12 square mile reservation under the 1863 Act. Regardless of what the Lower Sioux Indian Community may believe it is, it is not a tribe under Carcieri 6 federal jurisdiction at the time of the 1934 IRA enactment. Rather, the LSIC is a non-tribal subgroup of the Mdewakanton Band. It is uncontroverted that the Mdewakanton Band legally preceded the LSIC and the other two communities. I. The 1862 uprising of the Minnesota Sioux Indians begins with United States breach of its treaty obligations to the Minnesota Sioux. In August of 1862, individuals from each of the four bands of the Minnesota Sioux revolted against the United States in response to its failure to furnish the money and supplies promised in exchange for the Sioux lands under previous treaties with the Minnesota Sioux. 7 In the course of that uprising, certain Sioux killed more than 500 settlers and damaged substantial property, thereby breaching the 1851 and 1858 treaties. 8 6 Carcieri v. Salazar, 555 U.S. 379, 391 (2009). 7 Wolfchild v. United States, 96 Fed. Cl. 302, 313 (2010) (Wolfchild VII), rev'd in part, 731 F.3d 1280 (Fed. Cir. 2013). 8 Id. 14

16 A. The United States response to the uprising overreaches causing harm to Loyal Mdewakanton Sioux who sought to uphold their treaty obligations. 1. Congressional overreaction leaves Loyal Mdewakanton poverty-stricken and homeless. After defeating the Sioux, the United States annulled its treaties with them, which had the effect of, among other things, voiding the annuities that had been granted and were then being paid to the Sioux as part of the terms of the 1837 and 1851 treaties and eliminating any possibility of compensation under the 1858 treaty. 9 A portion of the remaining unexpended annuities was appropriated for payment to those settlers who had suffered damages as a result of the uprising. 10 The United States also confiscated the Sioux lands in Minnesota 11 and later directed that the Sioux be removed to tracts of land outside the limits of the then-existing states. 12 The Mdewakanton Sioux, however, had been loyal to the United States during the uprising by either not participating in the revolt or affirmatively acting to save the settlers. 13 Nonetheless, Congress acted with a broad brush, declaring the Sioux's treaties void and annuities and allocation of land forfeited and failing to except the Loyal Mdewakanton, whose annuity was valued at approximately $1,000, Those 8 Id. 10 Act of Feb. 16, 1863, 2, 12 Stat. at Act of Feb. 16, 1863, 1, 12 Stat. at See Act of Mar. 3, 1863, ch. 119, 1, 12 Stat Wolfchild VII, 96 Fed. Cl. at Id. 15

17 Sioux who observed their pledge under the 1851 and 1858 treaties to maintain peaceful relations with the citizens of the United States were rendered poverty-stricken and homeless. 15 Many of the loyal Sioux had lost their homes and property but could not return to their tribe... or they would be slaughtered Congress responds to its own overreaching reaction to the 1862 uprising with the passage of the 1863 Act. Notwithstanding the broad termination of the Sioux treaties, Congress did later attempt to provide for the loyal Mdewakanton by including a specific provision for them in the Act of February 16, 1863 (1863 Act). The Act authorized the Department to set apart lands for the Loyal Mdewakanton: [T]he Secretary of the Interior is hereby authorized to set apart of the public lands, not otherwise appropriated, eighty acres in severalty to each individual of the before-named bands who exerted himself in rescuing the whites from the late massacre [by] said Indians. The land so set apart... shall not be aliened or devised, except by the consent of the President of the United States, but shall be an inheritance to said Indians and their heirs forever. 17 As the Federal Circuit found in the earlier Wolfchild litigation, the provision that the land would be an inheritance to said Indians and their heirs forever[,] clearly would have created an inheritable beneficial interest in the recipients of any land conveyed under the statute Wolfchild v. United States, 559 F.3d 1228, 1232 (2009)(Wolfchild VI). 16 Cong. Globe, 38th Cong., 1st Sess (1864). 17 Act of Feb. 16, 1863, 9, 12 Stat. at Wolfchild VI, 559 F.3d at

18 Significantly, paragraph 9 of the 1863 Act, while terminating all treaties with the Minnesota Sioux, allowed for a tribal Mdewakanton Band to statutorily continue in Minnesota. The 1863 Act provides that the lands would be held in severalty and be an inheritance to said Indians and their heirs forever. 19 Accordingly, under the 1863 Act, the Secretary was authorized to recognize the tribal Mdewakanton Band and grant it right to possession of reservation lands. 20 In 1865, the Secretary followed this Congressional directive by using his authority to set apart a 12 square mile reservation 21 for the Mdewakanton Band. 22 The Secretary of the Interior in a letter dated Marcy 17, 1865, authorized Revd. S.D. Hinman, Missionary to designate twelve sections in a reasonably compact body and I will direct the local land offices to reserve the same from settlement or sale as soon as they are notified of Mr. Hinman s selection. 23 In response, Reverend Hinman responded to the Secretary s directive by identifying 12 sections of land and by writing the 12 sections down on the Secretary s same letter of March 17, The 12 sections Reverend Hinman wrote down were in Redwood, Renville and Sibley Counties 19 Act of Feb. 16, 1863, 9, 12 Stat. at Id. 21 The word reservation as it is used in the First Amended Complaint and in this brief does not mean that title in the lands would be re-vested in the United States as trustee for the Mdewakanton Band. 22 Five documents, First Amended Complaint Exhibits 1 through 5, show that the Secretary of the Interior transferred possession of the 12 square mile reservation to the tribal Mdewakanton Band on March 17, First Amended Complaint Ex

19 (Minnesota): Sections 1, 2, 3, 11 and 12, T. 112 N., R. 35; Section 35, T. 113 N., R. 35; Section 5, 6, 7, 8 and 9, T. 112 N., R. 34; Section 31, T. 113 N., R The Secretary initialed Reverend Hinman s selection thereby setting the 12 sections apart and granting right of possession under the 1863 Act to the tribal Mdewakanton Band forever. 25 Six days later, on March 23, 1865, the Commissioner of Indian Affairs wrote to Rev. Hinman confirming the decision of the Secy of the Interior already in your hands will be sufficient to authorize you to proceed to collect and establish the friendly Sioux upon the lands designated by you in your letter of the 17 th instant. 26 The Commissioner also noted that Supt. Thompson has been authorized to expend a sum not exceeding eight hundred dollars for plowing land and for the purchase of farming tools and seeds for the Indians in question. 27 In a letter written on the same date, March 23, 1865, Rev. Hinman confirmed to Bishop Whipple that upwards of 10,000 acres of land [are] set apart for Taopi & friendly Sioux located at Redwood and including our dear little church Id. 25 Id. 26 Id., Ex Id. 28 Id., Ex

20 3. Any question of the 1863 Act beneficiaries is answered by the United States 2012 administrative action identifying source documents for the Mdewakanton Band members. The proposed Plaintiffs Class is described in the 2014 First Amended Complaint based on beneficiary status under the 1863 Act: Each of the above-named Plaintiffs and the Plaintiffs Class members have a beneficial interest in the 12 square mile reservation as part of a class of lineal descendant(s) of an individual of the before-named [Dakota] bands who exerted himself [or herself] in rescuing the whites from the late [1862] massacre [by] said Indians. The Plaintiffs and Plaintiffs Class members are specifically-named beneficial heirs in the statutory phrase shall be an inheritance to said Indians and their heirs forever, found in the Act of February 16, 1863, which legally established the Loyal Mdewakanton as having exclusive title, occupancy and use and the right of quiet enjoyment to the 12 square mile reservation as Loyal Mdewakanton. 29 The Appellants agree with the Department s 2012 identification in the Federal Register of certain source documents to be used to identify 1863 Act beneficiaries: This position would counsel toward the use of additional source documents that reflect individuals not listed in the 1886 and 1889 censuses who had been loyal or friendly and therefore in the class that Congress intended to benefit. These other sources might include: Indian Camp Census, Report No. 156 in Report of U.S. Commissioner of Indian Affairs, 1863 Camp Release Census 1863, Stephen Riggs Family Papers, Box 1, Minnesota Historical Society Congressional Globe, 37th Cong., 3D Session at 514..Sibley Sioux Scout List Sibley Expedition, May 28, 1863, Sibley Papers, Minnesota Historical Society Collections, 10: Report of the Secretary of the Interior Payroll to Soldiers and Scouts (S.H. 29 First Amended Complaint 6. 19

21 Elrod Scout and Soldier List) (National Archives and Records Administration 1891 Samuel Brown Scout List Census White hostility stops the tribal Mdewakanton Band from taking possession of their land. Despite the Secretary s setting apart and transferring right of possession to the 12 square miles of Minnesota lands to the Mdewakanton Band, Rev. Hinman, in an undated letter written to Bishop Whipple, cited white hostility as preventing the Mdewakanton Band relocating to its reservation lands: The Sec. of the Interior, at our request, withdrew from sale, by Ex. Order, 10,000 acres for this purpose & located it at & near the old Lower Sioux Agency. Gen. Pope refuse[d] to let these Indians locate there, but Gen. Grant overruled Pope and ordered Sibley to allow the settlement to be made as we attempted. This was however prevented by the feeling at New Ulm and on the border generally consequent upon a recent cold blooded murder by the renegade Indians near Mankato. This 10,000 acres was being withheld from sale for some years, but finally restored for sale. 31 The white hostility reached the Secretary of the Interior through a report dated April 29, 1866, confirming Rev. Hinman s own assessment: Action was taken by the department, about one year ago, to select for them eighty acres of land each upon the 30 Federal Register, Vol. 77, No. 190, p (October 1, 2012). As to the Mdewakanton Band tribal roll process engaged there, the Department held administrative hearings, made substantial progress and filed periodic reports. The Department ceased the Mdewakanton Band tribal roll process after the Federal Circuit s reversal in Wolfchild X. 31 First Amended Complaint Ex

22 old reservation, but the feeling among the whites is such as to make it impossible for them to live there in safety. 32 II. The Mdewakanton Band is under federal jurisdiction in 1934 and today. The Appellant-Plaintiffs and proposed Plaintiffs Class are the lineal descendant members of the Mdewakanton Band 33 who were prevented from settling on the reservation lands set apart by the Secretary in The Mdewakanton Band has been federally identified 34 after the 1862 uprising in many ways: by the 1863 Acts; by the 1865 Secretary s setting aside of a 12 square mile reservation; by the Appropriation Acts; by the purchase of reservation lands in about 1890 and 1937; by the recognition of three subgroup communities under the 1934 Indian Reorganization Act (IRA); by the creation and maintenance of pre-1980 tribal trust accounts; 32 First Amended Complaint Ex The Department was ordered by the CFC to establish a tribal roll of Mdewakanton Band claimants in See Wolfchild v. United States, 101 Fed. Cl. 54, 92 (Fed. Cl. 2011), as corrected (Aug. 18, 2011) (Wolfchild VIII). 34 The statutorily-identified group has gone by many names in previous litigation including the friendly Sioux, Loyal Mdewakanton, the 1886 Mdewakanton and the Minnesota Mdewakanton Dakota Oyate. Oyate means people in the Dakota language. In an August 20, 2012 decision, the Department referred to this group as the Mdewakanton Band of Sioux in Minnesota. App. 92. Thus, in this brief, the group of 1863 Act beneficiaries, the proposed Plaintiffs Class, is referred to as the Mdewakanton Band. 21

23 by enactment of the 1980 Act; by transfer of additional lands into trust for the sub-group communities as recently as Significantly, it was the members of the Mdewakanton Band who voted on November 17, 1934 to accept the IRA. 35 The proposed Plaintiffs Class is the Mdewakanton Band identified by the Department since the 1863 Act and consists of all 1863 Act beneficiaries and of its three subgroup communities and members. 36 A. The federal government, as recently as 2012 affirmed the Mdewakanton Band as under federal jurisdiction in 1934 without regard to the status of the Lower Sioux Indian Community. 1. The Appellants as lineal descendants remain as members of the Mdewakanton Band. Recently, the Department, consistent with the Supreme Court decision in Carcieri land-into-trust transfer requirements, announced in an August 20, 2012 Notice of Decision that [p]rior to 1934, the tribe was officially known as the Mdewakanton Band of Sioux in Minnesota who entered into several treaties with the federal government. Departmental correspondence contemporaneous with the IRA shows irrefutably that the Mdewakanton Band was under federal jurisdiction when the Act was passed App First Amended Complaint App

24 In 2011, the Department began identifying the members of the Mdewakanton Band. The Department was ordered by the U.S. Court of Federal Claims during the earlier Wolfchild litigation, to establish a tribal roll of Mdewakanton Band claimants. 38 In response, the Department used administrative criteria to create a list of lineal descendants similar to existing lists referred to as the 1886 Censuses could alone provide. 39 In the Federal Registrar, the Department referenced the following documents as evidence of beneficiary status under the Appropriation Acts: (1) 1886 McLeod Census; (2) 1889 Henton Supplemental Census; (3) 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll); (4) Certificates assigning 1886 lands; (5) Birch Cooley Censuses prepared by Robert Henton; and (6) 1899 roll prepared by Inspector McLaughlin. 40 These source documents are different than those used by the Department to determine 1863 Act beneficiaries, yet they serve a similar end. These source documents identify the members of the Mdewakanton Band as recognized by the federal government in See Wolfchild VIII, 101 Fed. Cl. 54, 92 (Fed. Cl. 2011), as corrected (Aug. 18, 2011). 39 Federal Register, Vol. 77, No. 190, p (October 1, 2012). 40 Id. 41 Id. 23

25 2. The Appellee Lower Sioux Indian Community is not a tribe, but rather an administrative non-tribal subgroup subject to a corporate charter with limited powers as delegated by the Department. The 1934 IRA fundamentally altered the way in which the federal government dealt with Indian groups. 42 The IRA permitted [a]ny Indian tribe, or tribes, residing on the same reservation... to organize for its common welfare 43 It also preserved all powers vested in any Indian tribe or tribal council by existing law. 44 Section 19 of the IRA stated, in part, [t]he term Indian as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction The Supreme Court in Carcieri held the Department can only hold trust lands for tribes under federal jurisdiction at the time of enactment of the 1934 IRA; the Supreme Court interpreted the definition of Indian in section 19 to be restricted to recognized Indian tribe now under Federal jurisdiction with the now referring to the date of enactment of the IRA on June 18, The Mdewakanton Band in this case was under federal jurisdiction on June 18, But, the subgroup communities, Lower Sioux Indian Community (LSIC) and Prairie Island Indian 42 Act of June 18, 1934, ch. 576, 48 Stat. 984 (also known as the Wheeler Howard Act) (codified as amended at 25 U.S.C ). Notably, 25 U.S.C. 461 bars allotment of tribal land in severalty. 43 Id., 16, 48 Stat. at Id. 45 Id., 19, 48 Stat. at U.S. at See, e.g., App. 92,

26 Community (PIIC) approved by the Department in 1936 were not under federal jurisdiction on June 18, On November 17, 1934, the Mdewakanton Band members gathered as one and voted 94-2 to accept the IRA. 49 At the time, there were 271 eligible Mdewakanton Band voters. 50 Voter eligibility did not depend on having an 1886 land assignment created as a result of lands purchased under Congressional appropriation acts in 1888, 1889 and In fact, less than one-half of the eligible voters had 1886 land assignments. 51 The other one-half of eligible voters did not have land assignments. 52 In response to the vote of the Mdewakanton Band, the Department deliberated on the legal status of the Mdewakanton Band. 53 Officials recognized that the 1886 Lands were a legal reservation for the Mdewakanton Band. 54 First, Felix Cohen 55 stated in November 23, 1935 correspondence that a consensus had been reached on Mdewakanton Band organization between the Indian Office and the Solicitor s Office that the 1886 Lands had been set apart as a reservation for the Mdewakanton Band. 56 The November 23, 1935 memorandum 48 Id. 49 App Id. 51 Id. 52 Id. 53 App , , Id. 55 See Cohen s Handbook of Federal Indian Law (2005 ed.) at (contributions of Felix Cohen). 56 App

27 recognized the 1886 Lands as a reservation. 57 Four days later, Commissioner John Collier would confirm the reservation status of the 1886 Lands for the Mdewakanton Band. 58 His November 27, 1935 correspondence to Mr. Joe Jennings of the Pine Ridge Agency states the 1886 Lands are a reservation for the Mdewakanton Band. 59 Soon thereafter, Assistant Solicitor Charlotte T. Westwood and Chief J.R. Venning wrote a memorandum that the 1886 Lands were set apart for the Mdewakanton Band as a reservation. 60 Consistently, because the Mdewakanton Band existed with property rights at the time of the 1934 IRA, the Department approved its three non-tribal communities Lower Sioux Indian Community (LSIC) and the Prairie Island Indian Community (PIIC) in 1937, and the Shakopee Mdewakanton Sioux Community (SMSC) in 1969 based on residence on reservation land, as subgroups of and subject to the Mdewakanton Band and with only Department-delegated powers to serve the Mdewakanton Band. 61 Accordingly, the April 15, 1938 Department of the Interior Solicitor Opinion stated that [n]either of these two Indian groups [LSIC and PIIC] constitutes a tribe but each is being organized on the basis of their residence upon reserved land The 57 App App Id. 60 App App Opinion of the Solicitor dated April 15, 1938, vol. 1, 813, ). 26

28 group may not have such of those powers as rest upon the sovereign capacity of the tribe but may have those powers which are incidental to its ownership of property and to its carrying on of business and those which may be delegated by the Secretary of the Interior. 62 The legal basis for LSIC and PIIC being permitted to organize under the IRA in 1937 and SMSC in 1969 was not that they were tribes. Instead, the legal basis was Indians residing on same reservation. The Department relied on that nontribal language in the IRA to federally recognize LSIC and PIIC in 1936 and to federally recognize SMSC in The residing on same reservation language in the IRA was repealed in 1988 with a savings clause for pre-existing non-tribal communities. 63 In 1937, both PIIC and LSIC incorporated their communities as perpetual federal non-profit membership corporations. The LSIC Corporate Charter shows that LSIC is not an historical tribe with sovereign powers, but a federal corporation with delegated powers to serve the Loyal Mdewakanton lineal descendants. The LSIC Corporate Charter states: 62 Id. 63 Act of June 18, 1934, ch. 576, 48 Stat. 984 (also known as the Wheeler Howard Act) (codified as amended at 25 U.S.C ). Public Law , title I, Sec. 101, Nov. 1, 1988, 102 Stat deleted from section 16 the residing on same reservation text, but had a savings clause at Sec. 103: Nothing in this Act is intended to avoid, revoke or affect any tribal constitution, bylaw or amendment ratified and approved prior to this Act. 27

29 Whereas, the Lower Sioux Indian Community of the Lower Sioux Reservation in Minnesota is a recognized Indian Tribe organized under a constitution and by-laws ratified by the Community on May 16, 1936 and approved by the Secretary of the Interior on June 11, 1936, pursuant to section 16 of the Act of June 18, 1934 (48 Stat. 984) [as Indians residing on a reservation], as amended by the Act of June 15, the aforesaid community is hereby chartered as a body politic and corporate of the United States of America under the corporate name The Lower Sioux Indian Community. 3 The Lower Sioux shall be a membership corporation 64 The PIIC Corporate Charter in paragraph 1 states the same for PIIC. 65 The LSIC and PIIC Corporate Charters also contain a waiver of sovereign immunity in paragraph 5 of each document: Corporate Powers 5. The Community, subject to any restrictions contained in the Constitution and laws of the United States, or in the Constitution and By-laws of the said community, shall have the following corporate powers already conferred or guaranteed by its constitution and bylaws: (i) To sue and to be sued in courts of competent jurisdiction within the United States; but the grant or exercise of such power to sue and be sued shall not be deemed a consent by the Community or by the United States to the levy of any judgment, lien or attachment upon the property of the Community other than income or chattels specially pledged or assigned. 66 Finally, according to the April 15, 1938 Solicitor Opinion, the subgroup communities organized under the Mdewakanton Band do not have the powers 64 Motion for Judicial Notice of Lower Sioux Indian Community Corporate Charter, Kaardal Dec. (May 7, 2015), Ex. A. 65 Id., Ex. B. 66 Id., Exs. A and B. 28

30 associated with historical sovereign tribes but only temporarily delegated powers. 67 Consistently, under the 1938 Solicitor s Opinion, the communities do not have - even in light of 25 U.S.C. 476(f) and (g) if it applies to the communities at all - more powers than the inherent powers of a tribe listed in the 1934 Solicitor s Opinion. 68 For example, since the 1934 Solicitor s Opinion states that a historical tribe s enrollment and property determinations must be consistent with existing acts of Congress governing the enrollment and property rights of members, the communities enrollment and property determinations must be similarly federally compliant. 69 The subgroup communities evolved, but not the membership and certainly not into two classes of members as indicated in the 1980 Act Committee Reports. 70 The number of non-mdewakanton Band members at the reservations by the year 1980 had not grown. As of 1979, more than 95 percent of the enrolled members of the three communities were lineal descendants of the 1886 Mdewakanton. At that time, the Lower Sioux Indian Community had 152 members (139 of whom were lineal descendants of the 1886 Mdewakanton), the Prairie Island Indian Community had 109 members (106 of whom were lineal descendants of the 1886 Mdewakanton), and the SMSC had 96 members (94 of whom were lineal descendants of the App Opinion of the Solicitor dated April 15, 1938, vol. 1, 813, (as available online at Thorpe.ou.edu/sol_opinions/p html). 68 Id. 69 Opinion of the Solicitor dated October 12, 1934, vol. 1, S.Rep. No (1980); H.R.Rep. No (1980). 29

31 Mdewakanton) The Mdewakanton Band reservations were not terminated in the Termination Era of Federal Policy ( ). The federal government adopted a policy of tribal termination from 1943 through No termination plan for the Mdewakanton Band and its reservations in Minnesota was successfully implemented. 73 III. The pre-enactment legislative history of the 1980 Act includes the Department s inaccurate representations of the Mdewakanton Band and its subgroup communities to Congress. Prior to enactment of the 1980 Act, 74 which provided for the United States to hold lands in trust for the subgroup communities, the Department made representations to Congress regarding the pre-enactment history of the Mdewakanton Band that can best be described as inaccurate. 75 The Department s principal representation, which is wholly contradicted by existing documents, was that the Department created in about 1937 with purchased IRA lands, new reservations for new historical tribes. When in fact the Department actually had not done so according 71 Wolfchild VI, 559 F.3d at 1235 n See generally Cohen s Handbook of Federal Indian Law (2005 ed.) 1.06 (Termination ( )). 73 Id. 74 The 1980 Act refers to Act of Dec. 19, 1980, Pub. L , 94 Stat Wolfchild VII, 96 Fed. Cl. at ( The issues on remand are complex, reflecting both the convoluted and lengthy history of the federal government s relationship with the group of Indians who are plaintiffs and the extensive prior proceedings in this litigation. ). 30

32 to the 1938 Solicitor s Opinion and other doucments as explained above. 76 The Department stated to Congress that These [1886] lands were acquired for the use of the members of the Mdewakanton Sioux who were living in Minnesota in 1886 and their descendants. After the enactment of the 1934 IRA, additional lands were acquired in trust for the benefit of the three Mdewakanton groups organized under that Act. 77 However, according to the contemporaneous documents and the Department s documents as recent as 2012, the Department has recognized since 1934 that the Mdewakanton Band had reservation lands in Minnesota and the three communities (1936 and 1969) were non-tribal communities subordinate to the Mdewakanton Band. 78 Specifically, by 1935, the Department had recognized that the Mdewakanton Band had reservation lands, totaling about 955 acres, set apart as reservations for the Mdewakanton Band and referred to them as the 1886 lands. 79 The Department s twist of pre-enactment history formally communicating to Congress that new reservations had been created in about 1937 for three new sovereign historical tribes 76 See S.Rep. No (1980); H.R.Rep. No (1980). 77 See S.Rep. No (1980); H.R.Rep. No (1980). 78 See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F. 2d 370, 380 (C.A. Me. 1975) (Any termination of statutory obligations toward Indian tribe would have to be made by Congress and be plain and unambiguous to be effective). 79 App , Wolfchild v. United States, 62 Fed. Cl. 521, 528 (2004)(Wolfchild I) rev'd, 559 F.3d 1228 (Fed. Cir. 2009). 31

33 to substitute for the tribal Mdewakanton Band, is fundamentally flawed. 80 A. The United States repurchase of 1863 Act lands contradicts the unrepealed 1863 Act and calls in question what if any lands were transferred in trust for Lower Sioux Indian Community under the 1980 Act. The 1980 Act s limitation to transferring the right, title and interest the United States had in the 1886 lands meant no land transferred in trust to the LSIC under the 1980 Act because the United States had repurchased the land it had sold and patented in violation of the Mdewakanton Band s right to possession of the same land under the 1863 Act. The 1980 Act states, in pertinent part, as follows: That all right, title, and interest of the United States in [the 1886 lands] which were acquired and are now held by the United States for the use or benefit of certain Mdewakanton Sioux Indians [under the Appropriations Acts] are hereby declared to hereafter be held by the United States- (2) with respect to the some acres of such lands located within Redwood County, Minnesota, in trust for the Lower Sioux Indian Community of Minnesota; and. 81 Like a quit claim deed, the 1980 Act does not warrant title, but transfers what right, title and interest the United States had acquired and then held. But, the United States did not have title after the Secretary s actions in 1865 setting apart the 12 square mile reservation for the Mdewakanton Band forever despite the fact the 80 See Act of Dec. 19, 1980, Pub. L , 94 Stat To give substantive effect to [the] flotsam and jetsam of the legislative process is to short-circuit the constitutional scheme for making law. A. Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, (1998) Stat. at 3262 (emphasis added). 32

34 Department sold the land and then later repurchased it purportedly subjecting it to the 1980 Act. But, under the 1863 Act, the Department did not have the 12 square mile reservation to sell and patent in the first place; so, when the Department repurchased parts of the 12 square mile reservation, it purchased nothing. So, the Department had no right, title and interest to transfer under the 1980 Act. Under those circumstances, the 1980 Act by its terms caused no transfer of any portion of the 12 square mile reservation into trust for the LSIC. 82 B. The Defendants continue to occupy and possess the Mdewakanton Band reservation in Redwood, Renville and Sibley Counties. Despite the fact that the Mdewakanton Band has right to possession under the 1863 Act, the Defendants continue to occupy and possess the reservation land in Redwood, Renville and Sibley Counties (Minnesota), legally described as Sections 1, 2, 3, 11 and 12, T. 112 N., R. 35; Section 35, T. 113 N., R. 35; Section 5, 6, 7, 8 and 9, T. 112 N., R. 34; Section 31, T. 113 N., R. 31. The current possessors of the land acquired illegal possession to the 12 square mile reservation after the Department erroneously issued land patents to the 12 square mile reservation. 82 Notably, the Federal Circuit s legal analysis of the 1980 Act in Wolfchild VI, 559 F.3d at 1255, was limited to the certified question of whether the 1980 Act eliminated any trust arising out of the Appropriation Acts for the beneficiaries of the Appropriation Acts. The Federal Circuit did not address the Mdewakanton Band s land claims presented here. 33

35 C. The county property records show Appellee Lower Sioux Indian Community and the other Appellees holding possession of the lands subject to the 1863 Act. The county property records, relied upon in the First Amended Complain, show the Lower Sioux Indian Community that is the name of the federal corporation provided for in the LSIC Corporate Charter 83 and the other Appellees in possession of the property subject to the 1863 Act. 84 SUMMARY OF ARGUMENT The lower court erred in granting the Rule 12 motion to dismiss the First Amended Complaint based on tribal sovereign immunity, lack of private cause of action and applying an equitable bar. First, tribal sovereign immunity does not apply to the three communities including LSIC because they are not tribes, but subgroup communities of and subordinate to the Mdewakanton Band. Second, the Mdewakanton Band has a private cause of action under Oneida I and Oneida II regarding its tribal lands via the federal common law of ejectment and trespass. Third, Sherrill s non-rigid equitable bar does not apply to the 1863 Act which has current effect guaranteeing right to possession to the 12 square mile reservation 83 Motion for Judicial Notice Ex. A, See, e.g., First Amended Complaint 51, 52, 54-56, 60, 62, (Counts II and III). 34