IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Transcription

1 Case 5:05-cv W Document 266 Filed 04/02/15 Page 1 of 35 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA THE CHICKASAW NATION and ) THE CHOCTAW NATION, ) ) Plaintiffs, ) ) v. ) No.: W ) UNITED STATES DEPARTMENT OF ) Senior Judge Lee West THE INTERIOR, et al., ) ) Defendants. ) ) PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT ON SECTION 16 OF THE 1906 ACT AND RESPONSE IN OPPOSITION TO DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT ON SECTION 16 OF THE 1906 ACT

2 Case 5:05-cv W Document 266 Filed 04/02/15 Page 2 of 35 TABLE OF CONTENTS I. INTRODUCTION... 1 II. TRUST PRINCIPLES... 7 III. ARGUMENTS AND AUTHORITIES... 8 A. The Plain Meaning of Section 16 of the 1906 Act Prohibits the Sale of the Nations Lands Defendants Incorrectly Argue that Section 16 Authorized the Unlimited Sale of the Nations Timber Lands Defendants Erroneously Argue that the Nations Reading of Section 16 Violates Rules of Statutory Interpretation Defendants Fail to Rebut the Nations Argument that Section 7 Supports the Nations Reading of Section B. Defendants Arguments Regarding Other Means of Statutory Construction Omits the Indian Canons of Construction, and Relies Heavily on a Revisionist History Defendants Portrayal of the Historical and Statutory Ignores the True Meaning of the 1906 Act Defendants Fail to Address the Nations Legislative History Arguments Defendants Contention that Subsequent Legislation Confirms Their Reading of the 1906 Act is False Defendants Improperly Rely on Contemporaneous Interpretations of the Department of Interior and Representatives of the Nations Under the Control of the United States IV. CONCLUSION ii

3 Case 5:05-cv W Document 266 Filed 04/02/15 Page 3 of 35 TABLE OF AUTHORITIES Cases Barnhart v. Thomas, 540 U.S. 20, 26 (2003) Bryan v. Itasca Cnty., 426 U.S. 373, n. 14 (1976)... 3 Choctaw Nation v. U.S., 91 Ct. Cl. 320, 382 (1940) Fed. Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S. Ct. 38, 42, 70 L. Ed. 2d 23 (1981) Harjo v. Kleppe, 420 F. Supp. 1110, (D.D.C. 1976)... passim Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Daniel, 439 U.S. 551, 566 n 20, 99 S. Ct. 790, 800, 58 L. Ed. 2d 808 (1979) Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999)... 5 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985)... 5, 16 Ramah Navajo Chapter, 112 F.3d 1455, 1461 (10th Cir. 1997)... 6, 16, 24 United States v. Magnolia Petroleum Co., 110 F.2d 212, 217 (10th Cir. 1939)... 9 United States v. Mitchell, 463 U.S. 206 (1983)... 8 West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991) iii

4 Case 5:05-cv W Document 266 Filed 04/02/15 Page 4 of 35 Statutes 25 U.S.C U.S.C Stat. 1095, Stat. 11, Act, 32 Stat. 641, Section Act, 34 Stat passim 1906 Act, 34 Stat. 137, Section 7... passim 1906 Act, 34 Stat. 137, Section Act, 34 Stat. 137, Section Act, 34 Stat. 137, Section passim 1906 Act, 34 Stat. 137, Section Act, 34 Stat. 137, Section Act, 34 Stat. 137, Section Act, 34 Stat. 137, Section Act, 40 Stat Indian Reorganization Act of Federal Rules of Civil Procedure FED. R. EVID FED. R. EVID iv

5 Case 5:05-cv W Document 266 Filed 04/02/15 Page 5 of 35 Legislative Materials H.R. Report No (Dec. 7, 1905) H.R. Report No (Jan. 22, 1906) Cong. Rec (Jan. 18, 1906) Cong. Rec (Jan. 18, 1906) S. Rep. No , part 2 at 1688 (1907) Other Authorities 2A Norman J. Singer, Sutherland Statutory Construction (7 th ed.) MOORE S FEDERAL PRACTICE, (Matthew Bender 3d. ed. 2010)... 1 Cohen s Handbook of Federal Indian Law 2.02 (Nell Jessup Newton ed., 2012) (last visited April 1, 2015) (last visited April 1, 2015)... 2 National Registry of Natural Landmarks (June 2009), available at 23 Public Papers of the President: Richard M. Nixon, Special Message on Indian Affairs (July 8, 1970)... 4 Secretarial Order 3335 (Aug. 20, 2014)... 2, 4, 5 Susan Anderson, et al., The State of the Law: The National Forest Management Act: Law of the Forest in the Year 2000, 21 J. Land Resources & Envtl. L. 151, v

6 Case 5:05-cv W Document 266 Filed 04/02/15 Page 6 of 35 Exhibits Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Excerpts from 1940 Annual Report to the Five Civilized Tribes Excerpts from deposition of Michele F. Singer, Principle Deputy Special Trustee for American Indians Excerpts from deposition of Andrew J. Senti Excerpts from deposition of Dr. Aldo Salerno Oct. 26, 1911 Letter from Principal Chief Locke to the Secretary of Interior Exhibit 6 S. Rep. No , part 2 at 1688 (1907) vi

7 Case 5:05-cv W Document 266 Filed 04/02/15 Page 7 of 35 Plaintiffs, the Chickasaw Nation and the Choctaw Nation (the Nations or Plaintiffs ), respectfully submit this their Reply in Support of Their Motion for Partial Summary Judgment on Section 16 of the 1906 Act (Doc. No. 253, Motion ), and Response in Opposition to Defendants Cross-Motion for Summary Judgment on Section 16 of the 1906 Act (Doc. No. 260, Response ). 1 I. INTRODUCTION This Court already has recognized that Section 16 of the 1906 Act, 34 Stat. 137, did not authorize the sale of the Nations lands that were principally valuable for timber purposes. April 16, 2014 Order at 22 n.32 2 (Doc. No. 176, April 16, 2014 Order ) ( Except for the [specific tracts segregated under Section 7] Congress has never authorized the sale of the Nations timber lands. ); see also id at The Court s interpretation of the 1906 Act was, and still is, correct. Despite having almost five years since they filed their original Motion for Dismissal or, in the Alternative, for Summary Judgment (Doc. No. 103), Defendants have presented no new evidence suggesting the 1 Plaintiffs filed a Motion for Summary Judgment on Section 16 of the 1906 Act on March 5, See Doc. Nos Defendants then filed their Response, which was combined with their own Cross-Motion for Summary Judgment on Section 16. Doc. No Accordingly, Plaintiffs file this document as a Reply and Response. 2 In Section IV.C of their Response, Defendants attempt to negate the Court s interpretation of the 1906 Act by stating that Plaintiffs have improperly relied on the law of the case doctrine and arguing that the Court has discretion to revisit that conclusion. See Response at Defendants misunderstand Plaintiffs argument. Plaintiffs do not dispute that the Court has the discretion to revisit its prior conclusion. See 11 MOORE S FEDERAL PRACTICE, (Matthew Bender 3d. ed. 2010) ( when the law of the case doctrine is applied by a court to its own prior decisions the doctrine is properly described as discretionary in nature. ). Rather, the law of the case doctrine expresses the general rule that courts will not reopen issues that have been decided. Id. 3 Unless otherwise noted, all emphasis in this document has been added. 1

8 Case 5:05-cv W Document 266 Filed 04/02/15 Page 8 of 35 Court s Order was wrong. Indeed, Defendants concede that the construction of Section 16 is a purely legal matter. Thus, there is no reason for the Court to depart from its prior interpretation of the 1906 Act. Nevertheless, Defendants have responded with yet another attempt to win at all costs despite the fact that they are trustees in a case against their own beneficiaries. Beneficiaries to whom even Defendant Jewell concedes the Department of Interior ( DOI ) owes the highest moral and legal duties. See Secretarial Order 3335 (Aug. 20, 2014) (Doc. No , Secretarial Order ) at 1. Yet, when not speaking to public audiences and potential voters, but instead writing litigation briefs, Defendants shirk their trust duties, and the public promises of President Obama and Interior Secretary Jewell to stop repeating the mistakes of the past 4 and honor[] the United States trust responsibility to federally recognized tribes and individual Indian beneficiaries. 5 In fact, while Defendants vaguely reference their current policy as something different than their Indian policy at the beginning of the twentieth century, Defendants then attempt to hide behind their horrific past Indian policy and use it as a shield to protect them from liability for those very same atrocities. See Response at 1. Defendants argument is akin to saying that one is immune to war crimes trials for atrocities committed during a time of war because such was their policy at the time a proposition that is as ridiculous as it is untrue. If that is Defendants version of how to stop repeating the mistakes of the past, then the promises of politicians once again ring 4 See Statement of President Obama, available at (last visited April 1, 2015). 5 See Secretarial Order at 1. 2

9 Case 5:05-cv W Document 266 Filed 04/02/15 Page 9 of 35 hollow and, once again, it will take a federal court to do what is both legally and morally right. Indeed, the Court need not strain to implement (an assimilationist) policy Congress has now rejected, particularly where to do so will interfere with the present Congressional approach to an ongoing relationship. See Harjo v. Kleppe, 420 F. Supp. 1110, (D.D.C. 1976) (quoting Bryan v. Itasca Cnty., 426 U.S. 373, n. 14 (1976)). Defendants argument about their past policy is not only distasteful, it is also disingenuous and erroneous. Defendants rely heavily on a self-serving revisionist history, arguing the 1906 Act was the final step in the Government s march toward termination of Indian tribes. Response at 1. What Defendants fail to tell the Court is that in 1906, the United States already was beginning to reverse its march to termination. See id. at 1128 (noting that there was great concern over the ramifications of tribal dissolution in the then-current state of affairs immediately preceding the 1906 Act). It is true that in the years before the 1906 Act, the United States enacted legislation aimed at assimilation and dissolution. However, the 1906 Act represented an express shift in Congressional policy and a decline[] to terminate the tribal existence or dissolve the tribal governments, despite all of its earlier intentions to do so. See id. at Thus, Defendants ignore the plain truth that neither the 1906 Act, nor any subsequent legislation, extinguished the Nations governments or Defendants trust duties towards them. To the contrary, the 1906 Act and subsequent legislation prove that the trust relationship between the United States and the Nations was never extinguished. For example, just as the 1906 Act prohibited the sale of land principally valued for timber purposes, and expressly preserved the Nations governments, the Act also 3

10 Case 5:05-cv W Document 266 Filed 04/02/15 Page 10 of 35 reserved the sale of coal and asphalt lands from sale until all of the current leases expired. Nearly 30 years later, these leases still had not expired. See Excerpts from 1940 Annual Report to the Five Civilized Tribes, Exhibit 1 (summarizing oil and gas lease receipts from 1904 through 1940). Clearly then, Congress did not intend for the 1906 Act to terminate the trust relationship with the Nations. See also, e.g., Indian Reorganization Act of 1934, 25 U.S.C. 466, and 25 U.S.C. 503 (directing the Interior Department to utilize sustained-yield methods in managing Indian Timber Assets including the Nations assets.). Indeed, to this day the Government holds lands and funds in trust for the Nations. See Excerpts from 30(b)(6) Deposition of Michele F. Singer, Principle Deputy Special Trustee for American Indians, February 13, 2015 ( Singer Deposition ), Exhibit 2, at 9:1-5; see also Secretarial Order 3335 at 2 (the special relationship between Indians and the Federal government is the result of solemn obligations which have been entered into by the United States [and] continues to carry immense moral and legal force. To terminate this relationship would be no more appropriate than to terminate the citizenship rights of any other American. quoting Public Papers of the President: Richard M. Nixon, Special Message on Indian Affairs (July 8, 1970)). 6 That Defendants now attempt to re-write history and the 1906 Act to avoid their trust duties is truly astounding. 6 Defendants dismiss the importance of the Secretarial Order by arguing that it is simply aspirational and does not create any new rights or duties. Response at 28 n.12. In other words, Defendants once again argue that while Jewell s Order may include lofty words, the reality is that the assimilationist policies of the past rule in this case. The Nations do not contend that the Order creates any new right or duty that did not previously exist. To 4

11 Case 5:05-cv W Document 266 Filed 04/02/15 Page 11 of 35 Just as Defendants attempt to obscure history to serve their litigation goals, they also attempt to obscure the proper canons of statutory construction burying the highly applicable Indian canons of construction in a footnote on page 20. See Response at 20 n.6. Among other things, these canons require that statutes be construed liberally in favor of Indians.... Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). 7 Moreover, ambiguous provisions [must be] interpreted to their benefit. Id. (noting also that the standard principles of statutory construction do not have their usual force in cases involving Indian law ). Equally important, tribal property rights and sovereignty are preserved unless Congress s intent to the contrary is clear and unambiguous. Cohen s Handbook of Federal Indian Law 2.02 (Nell Jessup Newton ed., 2012) (citing Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999)). Defendants virtually ignore these canons of construction in their response. Why? Because these canons are fatal to Defendants argument. The Nations Motion demonstrated that the plain meaning of the statute is clear: the United States was prohibited from disposing of the Nations timberlands. Defendants, in response, contend that the 1906 act unambiguously allowed them to dispose of the Nations Timberlands. However, Defendants have repeatedly testified under oath that they do not know and have never known what the very section of the statute they contend authorized them to sell the Nations timber lands even means. Indeed, Defendants repeatedly have testified that they have no idea what principally the contrary, the plain language of the Order means what it says: it was clearly intended to reaffirm existing trust duties. See Secretarial Order No at 1. 7 Unless otherwise noted, all quotations marks and citations have been omitted. 5

12 Case 5:05-cv W Document 266 Filed 04/02/15 Page 12 of 35 valuable for timber purposes means. See e.g., Singer Deposition at 180:21-181:10; Excerpts from 30(b)(6) Deposition of Andrew J. Senti, February 26, 2014, Exhibit 3 at 30:16-31:10. In other words, while Defense Counsel asserts that the meaning of the statute is plain, Defendants themselves testified under penalty of perjury that they do not know the meaning of the very words at issue in the statute. Such double speak is absurd for anyone, especially a trustee. And, it doesn t matter what their lawyers argue because Defendants themselves are bound by their sworn and unequivocal testimony. That sworn testimony clearly shows that Section 16 did not include a clear and unambiguous intent by Congress to sell the Nations timber lands. Accordingly, Defendants argument that the Indian canons of construction do not apply is wrong. See Response at 20 n Further, Defendants refusal to acknowledge the relevance of the Indian canons is particularly egregious because these canons are rooted in the unique trust relationship between the United States and the Indians. Ramah Navajo Chapter, 112 F.3d at Defendants strained plain language arguments also are erroneous because they lead to the illogical conclusion that while Congress intended to limit sales of valueless lands, it allowed the Nations valuable timber and mining lands to be sold in vast, unrestricted single tracts to a single bidders. This reading is at odds with the change of heart 8 Defendants also assert that if the Court determines the 1906 Act to be ambiguous, the Court may examine legislative history. While the Nations do not dispute that a Court may consult legislative history if there is no plain meaning and the legislative history clearly evidences Congressional intent, as the Nations Reply and Motion demonstrate, the legislative history supports the Nations reading of the statute. Moreover, the fact remains that under the Indian canons of construction, if the [Act] can reasonably be construed as the Tribe would have it construed, it must be construed that way. Ramah Navajo Chapter, 112 F.3d 1455, 1462 (10th Cir. 1997). 6

13 Case 5:05-cv W Document 266 Filed 04/02/15 Page 13 of 35 evidenced by the 1906 Act and the overarching policy at the time to preserve valuable timber lands rather than sell them in unlimited quantities. In sum, Defendants revisionist history and tortured interpretations of the statutory language do nothing to disturb the Court s Order that Section 16 did not authorize the sale of the Nations lands principally valuable for timber purposes. As such, Plaintiffs Motion should be granted and Defendants Cross-Motion should be denied. II. TRUST PRINICPLES In their response, Defendants once again try to shirk their trust duties to the Nations. See Response at 2-3. Defendants assert no trust duties were owed to the Nations because Section 16 allowed the sale of the Nations timber lands. This argument flies in the face of the Secretarial Order issued by Defendant Jewell and the sworn testimony of all Defendants. Indeed, Defendants have testified in recent weeks that they have a duty to protect and preserve Indian trust assets including land held in trust from loss, damage, unlawful alienation, waste and depletion. Singer Deposition at 78:3-79:24. 9 The Department of Interior mandates that it follow each of these Trust Principles. Id. And, as Defendants testified, these Trust Principles require the United States to protect the Chickasaws and Choctaws even from the United States itself. Id. 9 Ms. Singer, a lawyer, is the Principle Deputy Special Trustee for American Indians, and oversees a section of the Department of Interior Office of Historical Trust Accounting that was created to provide litigation support for trust fund related litigation. See (last visited April 1, 2015). Accordingly, Ms. Singer is well-versed in the Government s trust duties toward Indian nations. 7

14 Case 5:05-cv W Document 266 Filed 04/02/15 Page 14 of 35 Moreover, Defendants argument fails for at least four additional reasons. First, the issue of whether Section 16 prohibited or allowed the sale of the Nations timber lands is the very issue presently before the Court. Thus, Defendants assertion that Section 16 imposes no trust duty is presumptuous. Second, Defendants once again base their entire argument on their revisionist history and misguided assertion that the 1906 Act was intended to dispose of the Nations. See Response at 3. This was not the intent of the 1906 Act. Third, Section 16 did impose specific duties on the Secretary of Interior regarding which of the Nations assets could and could not be sold. While the statute did not include specific regulations prescribing how the Government should manage the Nations lands, these types of regulations are regularly developed by agencies subsequent to the enactment of a statute. Finally, Defendants duty under the 1906 Act results from the pervasive control that the United States had over the Nations resources. See, e.g., 1906 Act, 34 Stat. 137, 11 (revenues), (town lots, coal and asphalt lands, reserved lands, tribal buildings and appurtenant lands, unallotted residue lands), 18 (authorizing the Department of the Interior to file suit in name of the tribe for the collections of revenues or recovery of lands); April 16, 2014 Order at 50, n.80 ( a fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians. quoting United States v. Mitchell, 463 U.S. 206 (1983) ( Mitchell II )). III. ARGUMENTS AND AUTHORITIES A. The Plain Meaning of Section 16 of the 1906 Act Prohibits the Sale of the Nations Lands 8

15 Case 5:05-cv W Document 266 Filed 04/02/15 Page 15 of Defendants Incorrectly Argue that Section 16 Authorized the Unlimited Sale of the Nations Timber Lands Defendants incorrectly assert that the plain meaning of Section 16 allows the sale of the Nations timber lands. First, Defendants speciously state that the Tenth Circuit has already ruled on Section 16. Response at 4. This argument is frivolous. Defendants mischaracterize irrelevant dicta from United States v. Magnolia Petroleum Co., 110 F.2d 212, 217 (10th Cir. 1939), as an interpretation of Section 16. In Magnolia Petroleum, a case regarding a right-of-way on the Nations lands, the Tenth Circuit never addressed any issue regarding Section 16. Rather, the Court merely mentioned Section 16 in passing, as it listed off several other provisions of the 1906 Act irrelevant to the issues before the Court. Id. The Tenth Circuit has never addressed that issue. Defendants reliance on this case is at best mistaken and at worst an attempt to mislead the Court. Defendants also present several confusing and tortured arguments regarding Section 16 and the 1906 Act in their endeavor to convince the Court that the Act allowed the sale of the Nations timber lands. First, Defendants argue that Congress specified that tracts conveyed to any one person may not be greater than 640 acres, and that agricultural tracts conveyed to any one person could not be greater than 160 acres. Response at 6. Defendants argue that Congress intended to limit the number of valueless acres that could be sold to any one person, but put absolutely no limit on the valuable timber and mineral lands that could be sold. 10 Under Defendants reading, the entirety of lands 10 While Defendants reading of Section 16 as allowing the unlimited sale of lands principally valuable for timber purposes and limiting the sale of unallotted lands is 9

16 Case 5:05-cv W Document 266 Filed 04/02/15 Page 16 of 35 principally valuable for timber or mining could be sold to one bidder in any amount. This makes no sense. Quite the contrary, contemporary federal policies aimed to create and manage forest reserves. See, e.g., Forest Reserve Act of 1891, 26 Stat. 1095, 1103; Forest Service Organic Act of 1897, 30 Stat. 11, 34-36; see also Susan Anderson, et al., The State of the Law: The National Forest Management Act: Law of the Forest in the Year 2000, 21 J. Land Resources & Envtl. L. 151, 153 ( The first of the[] national forest reserves was created in 1891 in response to a growing concern over the rapid deforestation of large parts of the public domain. ). Thus, Section 16 should be read in accordance with the prevailing Congressional policy at the time, which was to preserve valuable forest lands. West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 101 (1991) ( Our role [is] to make sense rather than nonsense out of the corpus juris. ). Defendants next argue that because Section 16 does not explicitly state that the timber lands were reserved, the Secretary of Interior had the authority to sell these lands. Response at 6-7. However, while Congress did not explicitly use the word reserve, it did the same by explicitly granting the Secretary of Interior the authority only to sell those lands, not principally valuable for timber purposes. In addition, the Nations can just as easily argue the reverse: Section 7 demonstrates that Congress knew how to explicitly sell timber lands as it did in Section 7. Nevertheless, Defendants attempt to bolster their argument by citing the explicit language in Section 7 and 13 that reserved specific timber and coal and asphalt lands, incorrect, it is also an admission by the Government that any lands it sold over 640 acres were those deemed at the time to be principally valuable for timber purposes. 10

17 Case 5:05-cv W Document 266 Filed 04/02/15 Page 17 of 35 respectively. Id. However, at the time the 1906 Act was being written, the allotment process was ongoing. Thus, Congress reserved specific lands from allotment under Section 7 and 13 so those lands would not be allotted and later could be sold. Congress did not do the same for the timber lands because it did not intend for these lands to be sold. 2. Defendants Erroneously Argue that the Nations Reading of Section 16 Violates Rules of Statutory Interpretation Defendants Response completely ignores the Indian canons of construction. Even worse, Defendants misconstrue several other rules of statutory construction and mischaracterize the Nations statutory arguments. First, Defendants repeat their argument that because the 1906 Act did not include language expressly reserving the timber lands, the United States did not breach its trust duty by selling the lands. Id. at 7-8. As explained above, the fact that Congress did not use the word reserve in no way means that it intended for the lands to be sold. In fact, Defendants reading of the first sentence as a statutory directive to sell all of the Nations lands principally valuable for timber purposes, creates an impermissible internal inconsistency by reading a mandatory and discretionary requirement for the Secretary of the Interior into the same provision. Under Defendants reading, the first sentence of Section 16 mandates that the Secretary sell all of the residue lands, including timber lands. Then, according to Defendants, the fourth sentence authorizes the sale of the timber lands whenever in his judgment it may be desirable a discretionary grant of authority. This is completely illogical. 11

18 Case 5:05-cv W Document 266 Filed 04/02/15 Page 18 of 35 Next, Defendants assert that if Congress intended to prohibit the sale of timber lands, it would have written the statute more clearly and expressly. Id. at 8. In other words, Defendants argue that because Defendants would have written the statute differently, Congress must not have intended a prohibition on the sale of the timber lands. However, the question is not whether Congress could have come up with better language to express its intent; rather, the question is whether the language Congress did use was clear. Here, the language clearly prohibits the sale of the Nations timber lands. Defendants next argument, that the Nations reading of Section 16 nullifies the language in tracts of not exceeding six hundred and forty acres to any one person, misconstrues the Nations argument. 11 See id. at 8-9. The Nations interpretation certainly does not read the acreage restriction out of Section 16. Rather, as the Nations clearly stated in their Motion, the Nations interpretation of Section 16 is that the 640- acre restriction applied to those unallotted lands, not principally valuable for mining, agriculture or timber purposes. Accordingly, the Nations interpretation does not render any language meaningless. In fact, it is Defendants interpretation of Section 16 that renders language in Section 7 superfluous. See Section III.A.3, infra. Defendants also misconstrue the rule of the last antecedent, claiming Congress made the fourth sentence apply only to lands that are not principally valuable for mining, 11 Defendants accuse the Nations of using an ellipsis to selectively quote Section 16. See id. at 8-9. The Nations did no such thing. The Nations quoted the fourth sentence in its entirety on page nine of the Motion and later provided an excerpt of the sentence for the sake of brevity. Defendants similarly quoted only a portion of Section 16 shall be sold leaving out important qualifying statement regarding how the lands should be sold (under the rules and regulations to be prescribed by the Secretary of Interior). See id. at 6. Defendants argument is disingenuous. 12

19 Case 5:05-cv W Document 266 Filed 04/02/15 Page 19 of 35 agricultural, or timber purposes. Response at 9. [T]he grammatical rule of the last antecedent, according to which a limiting clause or phrase (here, the relative clause which exists in the national economy ) should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, any other kind of substantial gainful work ). Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Accordingly, the language which is not principally valuable for mining, agricultural or timber purposes, should be read as a limitation on the previous phrase, which authorizes the sale of certain unallotted lands. Finally, Defendants Response fails to address the Nations argument regarding the reference in the final sentence to agricultural lands. Rather than rebutting the Nations argument that Congress s clear and explicit grant of authority to sell agricultural lands, evidences that it was equally clear and explicit in not granting the authority to sell timber or mining lands, Defendants simply regurgitate the same old shop worn inconsistency arguments, which the Nations have already soundly disposed of. See Response at 10. In addition, Defendants reading of Section 16 that the fourth sentence allowed the DOI to sell agricultural lands in unlimited quantities, then one sentence later limited the sale of agricultural lands to a mere 160 acres makes no sense. Accordingly, the plain language of Section 16 does not support Defendants interpretation, and at best Defendants strained argument shows that the statute was ambiguous, in which case it must be construed in favor of the Nations. 13

20 Case 5:05-cv W Document 266 Filed 04/02/15 Page 20 of Defendants Fail to Rebut the Nations Argument that Section 7 Supports the Nations Reading of Section 16 Defendants final plain language argument, that Section 7 does not invalidate Section 16 s mandate to sell residual, unallotted lands, also fails. See id. at 11. Defendants argue that their reading of Section 16 as allowing the unlimited sale of timber lands, does not make Section 7, which explicitly allowed the sale of specific timber lands, superfluous. Id. To come to this illogical conclusion, Defendants rely on an irrelevant and strained distinction between unallottable and unallotted lands. Regardless of whether the lands were reserved from allotment, the fact remains that Section 7 s express sale provision would be unnecessary if, as Defendants contend, Section 16 placed no limitations on the sale of the Nations timber lands. Tellingly, Defendants also rely on legislative history to bolster their plain reading of Section 7. Id. Defendants admit that as originally written, (1) Section 7 contained no sales authority, (2) lands not allotted under Section 7 would become residue under Section 16, and (3) the Senate later changed the language of Section 7 to allow the sale of these lands. Defendants argue that Congress did not explicitly state that it was changing Section 7 because it had also changed Section 16 to prohibit the sale of timber lands. However, what Congress did not say does not control the plain meaning of the language as written and does not change the fact that Defendants interpretation of Section 16 renders Section 7 superfluous a reading that violates a fundamental tenet of statutory construction Incredibly, Defendants also falsely proclaim that the Nations provided no citation to the legislative history in support of the Nations argument that the legislative history of Section 7 supports the Nations reading of Section 16, while Defendants themselves cited 14

21 Case 5:05-cv W Document 266 Filed 04/02/15 Page 21 of 35 Defendants also resort to a forced distinction between sales of timber and sales of timber lands to rebut the Nations claim that contemporary statements confirmed the government s authority to sell the Nations timber lands was limited to Section 7. Defendants argue these contemporary statements confirmed that sales of timber separate from fee simple land was prohibited under Section 16, but not sale of the land itself. Id. at However, Defendants fail to acknowledge that the Letter from the Assistant Commissioner of Indian Affairs cited by the Nations does not deal with the sale of timber separate from the fee simple sale of land. Rather, the letter addresses the sale of a specific tract of timber land. Indeed, the Assistant Commissioner explicitly stated that [t]his land, as in the case of the land in McCurtain County which the A & E Lumber Company desired to purchase is not included in the lands described in Section 7 of the Act of April 26, 1906 (34 Stat., 137), and there is no authority that will permit the sale of timber. Doc. No The Assistant Commissioner s statement is clear: there was no authority to sell the timber or the lands because they were not expressly included in Section 7. Finally, Defendants argue that Section 27 is only operative if the Nations were dissolved. Response at 13. Even if this were the case, Section 27 evidences Congress s intent to hold the lands for the benefit of the Nations even upon their dissolution. Accordingly, it makes no sense that when the Nations were actually preserved, Congress intended for their valuable timber and mining lands to be sold wholesale. the same legislative history that was cited by the Nations. Compare Motion at 24 (citing H.R. Doc. No and H.R. 5976, 101st Cong. (1906)), with Response at 11 n.4 (citing H.R. 5976). Once again, Defendants attempt to mislead the Court. 15

22 Case 5:05-cv W Document 266 Filed 04/02/15 Page 22 of 35 B. Defendants Arguments Regarding Other Means of Statutory Construction Omits the Indian Canons of Construction, and Relies Heavily on a Revisionist History As detailed in Section I, supra, Defendants virtually fail to mention the Indian canons of construction as an other means of statutory interpretations which federal courts are required to apply when a statute is not plain on its face. See, e.g., id. at This is so because Defendants know that if the Court does find that Congressional intent is not clear from the plain language of the statute, the Court is required to construe it in the Nations favor. See Blackfeet Tribe of Indians, 471 U.S. at 766; see also Ramah Navajo Chapter, 112 F.3d at 1462 ( The result, then, is that if the [Act] can reasonably be construed as the Tribe would have it construed it must be construed that way. ). Defendants instead resort to arguments based on a self-serving and erroneous history of the 1906 Act. 1. Defendants Portrayal of the Historical and Statutory Ignores the True Meaning of the 1906 Act Defendants cite to four statutes 13 enacted prior to the 1906 Act as evidence that the assimilationist policies of the period are controlling over the language of the statute. Response at What Defendants fail to tell the Court is that the 1906 Act was an explicit departure from the previous legislation aimed at dissolving the Nations. Thus, while the statutes cited by Defendants were intended to dissolve the Nations, the 1906 Act marked an express change in Congressional policy. Indeed, Section 28 of the Act 13 Defendants cite to the General Allotment Act, 24 Stat. 233 (1887) (referred to as the Dawes Act ), the Act of March 3, 1893, 27 Stat. 612, the Curtis Act, 30 Stat. 497, and the Supplemental Agreement of 1902, 32 Stat. 641 (the 1902 Act ). 16

23 Case 5:05-cv W Document 266 Filed 04/02/15 Page 23 of 35 expressly preserved the Nations governments. The legal effect of this provision was unmistakable: Congress had declined to terminate the tribal existence or dissolve the tribal governments, despite all of its earlier intentions to do so. Harjo, 420 F. Supp. at 1129 (noting also [t]hat section 28 had the effect of continuing indefinitely the existence of the tribe has been confirmed by each court that has examined the question. ). 14 When Congress enacts a statute it should be read in the context of the statutory scheme as a whole and subsequent legislation should be given meaning. See, e.g., Harjo, 420 F. Supp. at 1130 (holding that when Congress enacted provision 28 in the 1906 Act, which specifically reversed earlier legislation that would have terminated the Creek Nation, the conclusion must be that Congress intended the continuance of the Creek Nation); 2A Norman J. Singer, Sutherland Statutory Construction (7th ed.) ( statute is construed as a whole with reference to the system of which it is part. ); id. at 1A 22:29 ( the legislature is not presumed to perform a useless Act. ). In accordance with the 1906 Act and the attendant change of policy to preserve the Nations the 1906 Act made several other significant changes to the previous plans for disposition of the tribes. First, the 1906 Act s explicit authorization to sell only those unallotted lands, not principally valuable for mining or timber purposes, repealed 14 Defendants also cite to three cases, Choctaw & Chickasaw Nations v. Seay, 235 F.2d 30, 36 (10th Cir. 1956), United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2327 n.8 (2011), and Choctaw Nation of Indians v. United States, 318 U.S. 423, 426 n.5 (1943), in support of their arguments that the 1902 Act, Dawes Act and Act of March 3, 1893, respectively, reflected the intent of Congress to dissolve the Nations. For the same reasons as discussed above, Defendants reliance on Congressional intent regarding the prior statutes to interpret the 1906 Act is erroneous. 17

24 Case 5:05-cv W Document 266 Filed 04/02/15 Page 24 of 35 previous authorizations on the sale of all unallotted lands. See April 16 Order at 23 n.33 ( Because Section 29 of the 1906 Act... repealed all inconsistent provisions of earlier enactments, any prior legislative provisions authorizing the sale of unallotted timber lands had been repealed. ). In addition, the 1906 Act changed the disposition of the coal and asphalt lands, providing that they should be reserved from sale until existing leases expired. See 1906 Act at 13. The 1902 Act, on the other hand, had provided that the coal and asphalt lands would be sold within two years of the agreement s ratification. See 1902 Act at 56. These significant changes illustrate Congress s intent that the 1906 Act represented a departure from the previous policy of dissolution. Yet, Defendants argue that the Court should ignore these changes, just as DOI operated as if the Nations governments had in fact been dissolved in the wake of the 1906 Act. The Harjo court deemed this same argument utterly untenable. See Harjo, 420 F. Supp. at Defendants cannot bury their heads in the sand and pretend that the 1906 Act was meaningless. Defendants continued contention that these prior acts somehow control the interpretation of the 1906 Act is untenable. 2. Defendants Fail to Address the Nations Legislative History Arguments Defendants Response fails to address the Nations legislative history arguments, which reveal Congress s intent to limit DOI s ability to sell the Nations unallotted lands, not expand it. See Motion at To start, Defendants seem to vehemently oppose resort to legislative history at all likely because the legislative history contradicts Defendants reading of Section 16. Response at Paradoxically, Defendants then 18

25 Case 5:05-cv W Document 266 Filed 04/02/15 Page 25 of 35 launch into a series of hard-to-follow arguments alleging that legislative history actually supports their interpretation of Section 16. Id. at Once deciphered, Defendants arguments clearly lack substance. First, Defendants argue the legislative history clearly demonstrates that Section 16 was consistent with the assimilation policy of the earlier 20th century. Response at 21. Again, Defendants characterization of the historical context is wrong. The 1906 Act evidences a movement away from the assimilation and termination policies embodied in the earlier Dawes Act and Curtis Act. See Section III.B.1, supra. Indeed, the 1906 Act expressly preserved the Nations constitutional governments. See 1906 Act at 28. And, congressional debate reveals an emergent sympathetic view towards Indian tribes. Remarking on an earlier version of the statute that would have allowed sale of the Nations timber lands, Representative Stephens stated, There are 6,000,000 acres of this land that is to be sold as surplus land. This bill provides that they shall be sold in unlimited quantities, giving the Secretary of the Interior if he sees proper the right to sell it to one man or one corporation.a great deal of this land is valuable land worth from $10 to $50 per acre, and why should we permit corporations that have been existing there for years organized for that very purpose to beat these very Indians which have obtained some kind of right from the Indians and if you pass this bill you will give these men the benefits for which they have plotted and schemed for years. 40 Cong. Rec. at 1245 (1906). 15 Defendants wholly ignore the fact that the historical context surrounding the passage of the 1906 Act evidences a change of heart. Instead, Defendants prefer to tell the Court of a black-and-white revisionist history where the only 15 All references to the Congressional Record in this document are attached as Exhibit 27 to Doc. No

26 Case 5:05-cv W Document 266 Filed 04/02/15 Page 26 of 35 aim of Congress was to annihilate the Indians. Conveniently, under Defendants revisionist history, Defendants can get away with whatever they want by blaming context. Again, the Court should not allow Defendants to falsify history and ignore the clear present day words of Secretary Jewell to support their litigation position. Therefore, Defendants context argument fails. Next, Defendants actually admit the original draft of Section 16 contained no exceptions or tract size limitations for any categories of lands. Response at 21. Yet, Section 16 as ultimately passed contains both exceptions (e.g., timber lands could not be sold) and tract size limitations (e.g., agricultural land could only be sold in tracts of 160 acres or less). See 1906 Act at 16. Defendants only response is that, if language such as not principally valuable for mining, agricultural, or timber purposes, were intended to operate as a limitation on DOI s ability to sell the Nations land, that would have been expressly stated in the congressional debate records. See Response at 22, However, absence of evidence is not evidence of absence. Moreover, by making this argument, Defendants speak from both sides of their mouth, for in the very same section of their Response, Defendants argue that congressional debate records are not appropriate sources of information. Id. at 20. The fact remains that amendments were passed to place parameters on DOI s ability to sell the Nations unallotted lands. Defendants have failed to address this fact. Defendants also miss the mark with their argument regarding the potential game reserve discussed in the legislative history. Defendants argue the 100,000 acres specified for a game preserve were not intended as a limitation but rather as a directive for DOI to 20

27 Case 5:05-cv W Document 266 Filed 04/02/15 Page 27 of 35 sell a large tract of valueless land it would not have otherwise sold. Response at This is nonsense. Defendants own supporting quotation shows that DOI aware that it did not have unfettered authority to sell the Nations lands was apprehensive about selling such a large tract without Congress s express consent. Id. at 23 (quoting 40 Cong. Rec. at 1244 ( The committee advised that the Secretary did not care to sell a tract of 100,000 acres to any one person or company without the direct authority of Congress. )). Therefore, Defendants argument on this point actually supports the Nations reading of Section 16 as limiting DOI s authority to sell the unallotted lands. Finally, Defendants argue that, while Congress originally considered a sweeping amendment to Section 16 to limit all land sales to 160 acres, ultimately Congress only applied that limitation to agricultural lands. Response at This argument is illogical because it assumes the conclusion it is intended to support i.e., that the limiting language in the final version of Section 16 only applies to agricultural lands. This is a textbook circular argument. Indeed, the Nations could make the same argument in reverse: Congress originally considered a sweeping proposal to limit all land sales to 160 acres, but later decided to go a step further and prohibit the sale of timber lands entirely. Either way, Defendants position ignores the fact that the amendments to Section 16 demonstrate Congress s desire and ultimate decision to limit DOI s authority to sell the Nations unallotted lands. As shown above, when scrutinized, Defendants legislative history arguments do nothing to refute this fact. 21

28 Case 5:05-cv W Document 266 Filed 04/02/15 Page 28 of Defendants Contention that Subsequent Legislation Confirms Their Reading of the 1906 Act is False Defendants erroneously argue that the 1911 Act appropriating funds for the reappraisement and selling of the unallotted timber lands of the Choctaw Nation and the timber thereon evidences that Section 16 permitted the sale of Nations timber lands. Response at Defendants weakly attempt to show the devastating effect of the 1911 Act on the Nations claims by stating that the 1911 Act could not have applied to the Section 7 lands because these lands were unallottable, and the statute referred to unallotted lands. Id. at 26 n. 11. However, the term unallottable lands was created by Defendants and appears nowhere in the 1906 Act or the 1911 Act. In addition, the U.S. Court of Claims has previously held that appropriations made pursuant to 1911 Act were authorized by the Curtis Act of 1898 and the 1902 Supplemental Act. See Choctaw Nation v. U.S., 91 Ct. Cl. 320, 382 (1940); see also Excerpts from 30(b)(6) Deposition of Dr. Aldo Salerno, February 12, 2015, Exhibit 4, at 104:9-112:2 (agreeing that the appropriations made pursuant to the 1911 Act were authorized by the Curtis Act and the 1902 Supplement Agreement). The United States told the truth in that litigation because it supported charging the Choctaw Nation with over $22,000 of timber estimating expenses. See Choctaw Nation v. U.S., 91 Ct. Cl. at 382. Accordingly, the 1911 Act does not, as Defendants argue, make it clear that Section 16 allowed the sale of the Nations timber lands. Indeed subsequent legislation actually supports the Nations interpretation of Section 16. In a 1918 Appropriations Act, Congress authorized a sale of a portion of the 22

29 Case 5:05-cv W Document 266 Filed 04/02/15 Page 29 of 35 Nations land to the State of Oklahoma for a game preserve. See 40 Stat The land authorized for sale is unquestionably timber lands and is today part of the McCurtain County Wilderness Area. 16 If, as Defendants suggest, Congress had already authorized the unlimited sale of the Nations timber lands under Section 16, there would be no need for this Act. 4. Defendants Improperly Rely on Contemporaneous Interpretations of the Department of Interior and Representatives of the Nations Under the Control of the United States Defendants Response fails to address the Nations argument that any contemporary interpretation by the Nations leaders when the 1906 Act was passed simply reflected the interpretation of the federal agencies that appointed and controlled them. Defendants attempt to discredit the testimony of Kevin Gover, 17 but do not dispute the Nations argument that the Nations leaders and attorneys at this time were appointed and controlled by the federal government. Response at Instead, Defendants egregiously continue to rely on statements made by the federally-controlled leaders, such 16 McCurtain County Wilderness Area is one of the last undisturbed parts of the Oklahoma oak-pine forest. The site s overall size and high degree of integrity make it a classic example of a xeric upland oak-pine forest. National Registry of Natural Landmarks (June 2009), available at 17 Defendants argue that Mr. Gover s testimony is inadmissible under FRE 403 and 701. However, Gover s testimony is admissible under FRE 403, because its probative value is not substantially outweighed by any prejudice. Mr. Gover was formerly the Assistant Secretary of Indian Affairs and is now the Director of the National Museum of the American Indian. As such he has highly relevant and probative knowledge regarding past management of the Nations governments and their trust assets. In addition, Mr. Gover s testimony is admissible under FRE 701 because it was rationally based on [his] perception based on his position as Secretary of Indian Affairs and is helpful to clearly understanding a fact in issue : the historical relationship between the United States and the Nations. See FRE

30 Case 5:05-cv W Document 266 Filed 04/02/15 Page 30 of 35 as Green McCurtain a man who was appointed to office over the Choctaw s wishes, despite the fact that he was ineligible to purportedly show the Nations interpretation. 18 Id. Once again, Defense Counsel uses the odious policies of the past to bolster their litigation position against their clients own beneficiaries. This is the exact type of conduct DOI was referring to when it testified that one of its duties is to protect its own beneficiaries from itself. See Singer Deposition at 78:3-79:24. It is sad but true that when the United States is a trustee it must remind itself of the obvious that it must protect its beneficiaries from itself. Defendants also offer their wrongful contemporaneous actions in selling the Nations timber lands as support for their position. Defendants erroneously argue the Court should give weight to the Department of Interior s interpretation of Section 16. Response at 27. In doing so, Defendants once again ignore the Indian canons of construction, which control[] over the more general rule of deference to agency interpretations of ambiguous statutes. Ramah Navajo Chapter, 112 F.3d at Green McCurtain was appointed by President Roosevelt in 1906, despite the fact that the Choctaws elected Wesley Anderson as their Principal Chief. See April 16, 2014 Order at 16. McCurtain had served as the elected Principal Chief for two consecutive terms in the past and, thus, was no longer eligible to serve as Chief under the Choctaw constitution s two-term limit. Id. Yet, McCurtain served as the unlawfully appointed, and government controlled, Chief until his death. Id. Defendants also cite a bill from the Choctaw Council protesting the Timber Reserve. The document was signed by Green McCurtain. See Doc. No Moreover, the Choctaw Council was not a properlyelected independent governing body. See Oct. 26, 1911 Letter from Principal Chief Locke to the Secretary of Interior, Exhibit 5 at G03DIS (noting that the last election of the Choctaw Council was in 1904 and that there was no Council to recognize prior to organization of October the 2nd, 1911 ); see also Expert Report of Dr. Kenny Franks, at (Doc. No ). 24