Case: Document: 92 Page: 1 Filed: 12/21/2012. L'_'. 2.J L y.j_t._:_ Nos ,-5036,-5043 (consolidated)

Case: 12-5035 Document: 92 Page: 1 Fled: 12/21/2012! L'_'. 2.J L y.j_t._:_ Nos. 2012-5035,-5036,-5043 (consoldated) UNTED STATES COURT OF APPEALS FOR THE FEDERAL CRCUT F_LED o.s.cour1of?.ppe/_ls FOR TH t- ;_]FP;, _ ""C_F;!T OEC L _ ;U11! SHELDON PETERS WOLFCHLD, ERNE PETERS LONGWALKER, SCOTT ADOLPHSON, MORRS J. PENDLETON, BARBARA FEEZOR BUTTES, WNFRED ST. PERRE FEEZOR, AUTUMN WEAVER, ARES BLUESTONE WEAVER, ELJAH BLUESTONE WEAVER, RUBY MNKEL, LAVONNE A. SWENSON, WLLS SWENSON, AARON SWENSON, BEVERLY M. SCOTT, LLLAN WLSON, MONQUE WLSON, SANDRA COLUMBUS GESHCK, CHERYL K. LORUSSO, JENNFER K. LORUSSO, CASSANDRA SHEVCHUK, JASON SHEVCHUK, JAMES PAUL WLSON, EVA GRACE WLSON, BENTA M. JOHNSON, and KEV1N LORUSSO, and Plantffs-Cross ANTA D. WHPPLE et al., Descendants of Lucy Trudell, Appellants, BONNE RAE LOWE, et al., Desecendants of Joseph Graham, et al., LENOR ANN SCHEFFLER BLAESER et al., Descendants of John Moose, and MARY BETH LAFFERTY, et al., Plantffs, (capton contnued on followng page) Appeals from the Unted States Court of Federal Clams n Consoldated Case Nos. 03-CV-2684 and 01-CV-0568, Judge Charles F. Lettow JOHN AARON _ODY UNTED STATES' ANSWERNG BREF AS CROSS-APPELLEE L. SMELTZER AVLA SCHWARZ Attorneys, U.S. Dept. of Justce Envronment & Natural Resources (202) 305-0343 Dvson john.smeltzer@usdo.gov AND REPLY BREF AS APPELLANT GNACA S. MORENO Assstant Attorney General Envronment & Natural Resources Dvson U.S. Department of Justce Post Offce Box 7415 Washngton, D. C 20044

Case: 12-5035 Document: 92 Page: 2 Fled: 12/21/2012 and COURSOLLE DESCENDANTS and ROCQUE AND TAYLOR DESCENDANTS, Plantffs, and DEBORAH L. SAUL, LAURA VASSAR, et al., LYDA FERRS et al., DANEL M TRUDELL, et al., and ROBERT LEE TAYLOR, et al., and DAWN HENRY, and Plantffs, RAYMOND CERMAK, SR., (actng ndvdually and under a power of attorney for Stanley F. Cermak, Sr.), MCHAEL STEPHENS, et al., JESSE CERMAK, et al., DENSE HENDERSON, DELORES KLNGBERG, SALLY ELLA ALKRE, PERRE ARNOLD, JR., GETRUDE GODOY et al., and Plantffs, JOHN DOES 1-30, WNONA C. THOMAS ENYARD, and ELZABETH T. WALKER, Plantff, and, FRANCE GARREAU, et al., and FRANCS ELANE FELX, and JOHN DOES 1-433, and KE ZEPHER, et al., and Plantff, Plantff, Plantff, Plantff, LOWER SOUX NDAN COMMUNTY, Plantff,

Case: 12-5035 Document: 92 Page: 3 Fled: 12/21/2012 and PHLP W. MORGAN, and Plantff, REBECCA ELZABETH FELX, Plantff, and VERA A. ROONEY, et al., and Plantff, DANNY LEE MOZAK, Plantff-Cross and DAWN BURLEY, et al., Plantff-Cross and HARLEY ZEPHER, SR., Plantff-Cross and Appellant, Appellant, Appellant, JULA DUMARCE, et al., ' Plantff-Cross Appellant, and RAYMOND COURNOYER, SR., et al., JERRY ROBNETTE, et al., SANDRA KMBELL, et al., CHARLENE WANNA, et al., and LESLE LEE FRENCH, et al., Plantff-Cross Appellants, and KRSTNE ABRAHAMSON, Plantff-Cross-Appellant, V. UNTED STATES, Defendant-Appellant.

Case: 12-5035 Document: 92 Page: 4 Fled: 12/21/2012 TA13LE OF CONTENTS STATEMENT OF JURSDCTON (CROSS-APPEAL)... 1 STATEMENT OF THE SSUES (CROSS-APPEAL)... 2 STATEMENT OF THE CASE (CROSS-APPEAL)... 3 A. Background... 3 3. Judgment of"use Restrcton" Clams... 8 C. Denal of Other Proposed Clams... 8 1. 1863 Acts... 8 2. lndan Non-ntercourse Act... 9 3. Ffth Amendment Takng Clause... 12 SUPPLEMENTAL STATEMENT OF FACTS (CROSS-APPEAL)... 13 A. Abrogaton of Treaty Rghts and Dsposton of Treaty Lands..... 13 13. Authorty to Ad Loyal Soux... 14 C. Aborted Efforts to Provde Lands under the 1863 Acts... 16 SUMMARY OF ARGUMENT... _... 18 A. Reply on Unted States' Appeal... 18 3. Response to Cross-Appeals... 20 1. Plantffs' Cross-Appeal... 20 2. lntervenor-plantffs ' Cross-Appeal... 21 STANDARD OF REVEW (CROSS-APPEAL)... 22

Case: 12-5035 Document: 92 Page: 5 Fled: 12/21/2012 REPLY ARGUMENT (UNTED STATES' APPEAL)... 23. CLAMANTS CANNOT STATE A CLAM UNDER THE 1888-1890 ACTS... 23 A. The 1888-1890 Acts Planly mpose No Dutes Wth Respect to Revenues from the 1886 Lands or the 1886 Descendants... 23 B. "Context" Does Not Supply Otherwse Mssng Statutory Dutes... 27 1. The 1888-1890 Acts Dd Not Create Reservatons for the 1886 Mdewakantons... 28 2. No Specfc Dutes Can Be nferred by Reference to the Annulled Treates... 30 D. A "Non-Frvolous" Allegaton of Tucker-Act Jursdcton s nsuffcent to Support the CFC's Tucker-Act Judgment... 33 \. THE USE RESTRCTON CLAMS ARE TME BARRED... 35 A. Ths Use-Restrcton Clams are Not Breach of Trust Clams...,... 36 B. The Use-Restrcton Clams Are Not "Loss" or "Msmanagement" Clams... 38 RESPONSE ARGUMENT ON CROSS-APPEALS... 41. THE CFC CORRECTLY DSMSSED PLANTFFS' CLAMS... 41 A. Plantffs' "Statutory Land Clam" s Not Vable... 42 1. The NA Does Not Provde the Bass for a Tucker Act Clam... 42

!!! Case: 12-5035 Document: 92 Page: 6 Fled: 12/21/2012 2. Plantffs Do Not Allege an NA Volaton... 44 3. Any Clam As to the 7, 680 Acres s Tme-Barred... 47 B. Plantffs' "Statutory Funds Clam" s Not Vable... 48. THE CFC CORRECTLY DSMSSED NTERVENOR- PLANTFFS CLAMS UNDER THE 1863 ACTS... 50 A. By ts Plant Terms, The February 1863 Act Dd Not Mandate Land Grants... 51 B. The 1863 Acts Must Be Read Together... 53 C. Actons By DO Under the 1863 Acts Do Not Demonstrate a Mandatory Duty... 55. THE NTERVENOR-PLANTFFS DD NOT PLEAD AND CONNONT STATE A TREATY-BASED CLAM..'... 57 CONCLUSON... 60 STATUTORY ADDENDUM: 1863 Acts " _! CERTFCATE OF COMPLANCE CERTFCATE OF SERVCE

Case: 12-5035 Document: 92 Page: 7 Fled: 12/21/2012 TABLE OF AUTHORTES CASES: Adar v. Unted States, 497 F.3d 1244 (Fed. Cr. 2007)... 34 Amercan ndans Resdng on Marcopa-Ak Chn Reservaton v. Unted States, 667 F.2d 980 (Ct. C1. 1981)... 37 Brown v. Unted States, 195 F.3d 1334 (Fed. Cr. 1999)... 22 Central Pnes Land Co., L.L. C. v. Unted States, 697 F.3d 1360 (Fed. Cr. 2012)... 22 Choate v. Trapp, 224 U.S. 665 (1912)... 58 Cloer v. Secretary of Health and Human Servces, 654 F.3d 1322 (Fed. Cr. 201 )... 52 Federal Power Commsson v. Tuscarora ndan Naton, 362 U.S. 99 (1960)... 43 Ferrero v. Unted States, 501 F.3d 1349 (Fed. Cr. 2007)... 33 Fsher v. Unted States, 402 F.3d 1167 (Fed. Cr. 2005)... 33, 34 Frederck v. Shnshek, 684 F.3d 1263 (Fed. Cr. 2012)... 51 Garca v. Unted States, 469 U.S. 70 (1984)... 52 Gollehon Farmng v. Unted States, 207 F.3d 1373 (Fed. Cr. 2000)... 33, 35 n re Staats, 671 F.3d 1350 (Fed. Cr. 2012)... 33 ngrum v. Unted States, 560 F.3d 1311 (Fed. Cr. 2009)... 40 NTP, nc. v. Research n Moton, Ltd., 418 F.3d 1282 (Fed. Cr. 2005)... 57 v

!! l!!!! Case: 12-5035 Document: 92 Page: 8 Fled: 12/21/2012 Oneda County, N.Y. v. Oneda ndan Naton of New York State, 470 U.S. 226 (1985)... 10 San Carlos Apache Trbe v. Unted States, 639 F.3d 1346 (Fed. Cr. 2011)... 39, 40 Sanof-Avents v. Apotex nc., 659 F.3d 1171 (Fed. Cr. 2011)... 22 SeldovaNatveAss'n, nc. v. Unted States, 144 F.3d 769 (Fed. Cr. 1998)... 59 Shoshone ndan Trbe of Wnd Rver Reservaton, Wyo. v. Unted States, 672 F.3d 1021 (Fed. Cr. 2012)... 10, 40, 44, 59 Shoshone ndan Trbe v. Unted States, 364 F.3d 1339 (Fed. Cr. 2004)...... 38, 39, 59 South Dakota v. Bourland, 508 U.S. 679 (1993)....58 Unted States v. Mtchell, 445 U.S. 535 (1980) ("Mtchell l")... 25 Unted States v. Mtchell, 463 U.S. 206 (1983) ("Mtchell /")... 26, 57 Unted States v. Navajo Naton, 556 U.S. 287 (2009)... 24, 27, 28, 43 Unted States v. Whte Mountan Apache Trbe, 537 U.S. 465 (2003)... 26 Wolfchldv. Unted States, 559 F.3d 1228 (Fed. Cr. 2009) (" Wolfchld V")... ;... passm Wolfchld v. Unted States, 101 Fed. C. 54 (2011) ("Wolfchld V")... 6-8, 9, 11-12, 17, 31, 41, 45, 47, 51, 57 Wolfchld v. Unted States, 96 Fed. C1. 302 (2010) ("Wolfchld V")... 7, 8, 13, 30, 32, 37, 38, 41, 42, 48 Wolfchld v. Unted States, 77 Fed. C1.22 (2007)... 3, 6 ("Wolfchld V") V

Case: 12-5035 Document: 92 Page: 9 Fled: 12/21/2012 STATUTUES Act Act Act Act Act Act Act Act Act Act Act Act Act Act of February 16, 1863, 12 Star. 642... 8 of February 16, 1863, Ch. 37, 12 Stat. 652... 58 of February 16, 1863,.Ch. 37, 1, 12 Stat. 652... 13,45, 46, 52 of February 16, 1863, Ch. 37, 2-8, 12 Stat. 652-54... 14 of February 16, 1863, Ch. 37, 9, 12 Stat. 654... 15, 45, 46, 50, 52-55 of March 3, 1963, 12 Stat. 819...... 8 of March 3, 1863, Ch. 119, 12 Stat. 819-820... 14, 46, 47 of March 3, 1863, Ch. 119, -3, 12 Stat. 819... 14, 52 of March 3, 1863, Ch. 119, 4, 12 Star. 819... 14-16, 45, 50, 53-54, 56 of February 9, 1865, Ch. 9, 2, 13 Stat. 427... 16, 17 of June29, 1888, Ch. 503, 25 Stat. 217, 228-29... 26, 29 of March 2, 1889, Ch. 412, 25 Stat. 992-993... 24, 26, 29 of August 19, 1890, Ch. 807, 26 Stat. 349... 24, 29 of August 19, 1890, Ch. 807, 26 Stat. 336... :... 26 Pub. L. No 96-557, 1, 94 Stat. 3262 (Dec. 19, 1980)... 4, 49 Pub. L. No. 108-108, 117 Stat. 1241 (Nov. 0, 2003) ("ndan Trbal Accountng Statute")... 36, 39 25 U.S.C. 177 (ndan Non-ntercourse Act)... 6, 10, 43, 44 25 U.S.C. 476(a)... :... 29 25 U.S.C. 479... 29 28 U.S.C. 1291... 1 28 U.S.C. 1505 (ndan Tucker Act)... 23, 42 28 U.S.C. 1491 (Tucker Act)... 23, 42 RULES & REGULATONS RCFC 12(b)(1)... 33, 35, 36 RCFC 12(b)(6)... 34 RCFC 54(b)... 1 RCFC 59... 1 v

Case: 12-5035 Document: 92 Page: 10 Fled: 12/21/2012! l! v

Case: 12-5035 Document: 92 Page: 11 Fled: 12/21/2012 LEGSLATVE HSTORY 19 Cong. Rec. 2,976-77 (1888)... 32 21 Cong. Rec. 7,589 (1890)...... 32 Cong. Globe, 37th Cong., 3d Sess., 511 (1863)... _... 51 MSCELLANEOUS Roy W. Meyer, Hstory of the Santee Soux, 261 (U. Nebraska Press 1967)... 16-17, 47, 53 Vlll

!! Case: 12-5035 Document: 92 Page: 12 Fled: 12/21/2012 STATEMENT OF JURSDCTON (CROSS-APPEAL) As prevously explaned (U.S. Br. 1 at 2-5), the Court of Federal Clams ("CFC") nvoked RCFC 54(b) to drect a fnal monetary judgment aganst the Defendant Unted States for alleged volatons of statutory "use restrctons" allegedly mposed under Acts of 1888-1890. See A89-92. Ths Court has jursdcton over the Unted States' appeal from that certfed fnal judgment. 28 U.S.C. 1291. n contrast, the CFC dd not explctly drect fnal judgment on addtonal clams that the CFC decded n favor of the Unted States and are now the subject of the Plantffs and ntervenor-plantffs' cross-appeals. See A92 (judgment). Nonetheless, ths Court should treat the CFC's certfed fnal judgment as mplctly ncludng dsmssal of those addtonal clams. As explaned (US. Br. at 4-5, 16-18), the CFC wthheld fnal judgment n ths case not because there are lablty clams yet to be resolved, but for purposes of retanng jursdcton over the Unted States' dstrbuton of the monetary judgment and to hear motons for attorneys fees and costs. A98. Resoluton of such post-judgment matters ordnarly should not delay the entry of fnal judgment for appeal purposes. See RCFC 59. L Ctatons to "US. Br." are to the Corrected Openng Breffor the Unted States as Appellant fled on June 5,2011 (nunepro tune May 25,2011). m

!! Case: 12-5035 Document: 92 Page: 13 Fled: 12/21/2012 STATEMENT OF THE SSUES (CROSS-APPEAL) The ssues n the Unted States' appeal are set out n the Unted States' Openng Bref. US. Br. at 6. The ssues n the Plantffs' cross-appeal are: 1. Whether the CFC correctly granted summary judgment aganst Plantffs on clams asserted under the ndan Non-ntercourse Act (25 U.S.C. 177); and 2. Assumng, arguendo, that the CFC correctly granted judgment n favor of the descendants of the "1886 Mdewakantons" on clams to revenues derved from lands purchased under the 1888-1890 Acts (an ssue n the Unted States' appeal), whether the CFC correctly lmted such judgment to revenues derved before the 1980 Act, whch declared the subject lands to be held n trust for three Mnnesota Soux Communtes (and not the descendants of the 1886 Mdewakantons). The ssues n the ntervenor-plantffs' cross-appeal are: 1. Whether the CFC correctly determned that an Act of February 1863 - whch authorzed the Secretary of the nteror to provde lands to certan loyal Soux (whom ntervenor-plantffs allege to be the predecessors to the 1886 Mdewakantons) - dd not create a specfc

, Case: 12-5035 Document: 92 Page: 14 Fled: 12/21/2012 fducary duty or other "money-mandatng" oblgaton n favor of the loyal Soux or ther descendants; and Whether the CFC correctly determned (to the extent the ssue was ever rased) that the Clamants cannot state a vable clam for breach of the 1851 and 1858 Treates, whch were abrogated by the Act of February 1863. STATEMENT OF THE CASE (CROSS-APPEAL) A. Background Plantffs and ntervenor-plantffs (collectvely, the "Clamants") are over 20,000 ndvduals, each of whom clams to be a descendant of at least one ndan who was elgble to receve materal assstance under the terms of appropratons acts enacted n 1888, 1889, and 1890 (the "1888-1890 Acts"). See Wolfchldv. Unted States, 77 Fed. C1.22, 34-35 (2007) ("WolfchMW') (A208-209); U.S. Br. at 7, n. 3, 10-13. Because the 1888-1890 Acts lmted benefts, n part, to ndans resdng n or engaged n removng to Mnnesota as of 1886, the statutorly elgble class s referred to as the "1886 Mdewakantons." See Wolfchldv. Unted States, 559 F.3d 1228, 1234 (Fed. Cr. 2009) ("Wolfchld vr'). For purposes of ths bref, the descendants of the 1886 Mdewakantons are referred to as the "1886 descendants."

l Case: 12-5035 Document: 92 Page: 15 Fled: 12/21/2012 Under the 1888-1890 Acts, the Department of the nteror ("DO") purchased, among other materal goods, certan tracts of land - the "1886 lands" - for use and occupancy by desgnated ndvdual 1886 Mdewakantons. U.S. Br. at 23-24. DO retaned ttle to these lands and assgned specfc parcels to named ndvduals va "ndan land certfcates." d. As a matter of polcy and practce, when an orgnal assgnee ded or abandoned a tract of 1886 land, DO would reassgn the subject parcel to a lneal descendant of the orgnal assgnee or other ndvdual from the class of 1886 Mdewakantons and ther descendants, whom DO determned to be "most equtably enttled to... temporary use and occupancy" of the subject tract. Wolfchld V, 559 F.3d at 1247 (A244). DO dd not assume any legal oblgaton to the 1886 descendants as a group. n 1980, Congress enacted a statute (the "1980 Act") declarng that all "rght, ttle, and nterest of the Unted States" n the 1886 lands 2 would "[t]hereafter be held.., n trust" for three federally-recognzed trbal communtes that had organzed on and around the 1886 lands: the Shakopee Mdewakanton Soux Communty, the Lower Soux ndan Communty, and the Prare sland ndan Communty. Pub. L. No 96-557, 1, 94 Stat. 3262 ( Dec. 19, 1980); see 2Excludng certan lands n Wabasha County transferred to conservaton use n 1944. U.S. Br. at 24, 26.

Case: 12-5035 Document: 92 Page: 16 Fled: 12/21/2012 also US. Br. at 25-26. The three Communtes have snce controlled the 1886 lands and revenues derved from the lands (ncludng gamng revenues). The Plantffs (Sheldon Peters Wolfchld, et al.) ntated ths acton n 2003, allegng that Congress ntended the 1886 lands to be held n trust for the 1886 Mdewakantons and ther descendants as a group, and that DO offcals breached the Unted States' trust oblgaton by falng to mantan the lands and land revenues for 1886 Mdewakanton group. U.S. Br. at 10-11. n a 2009 decson on nterlocutory appeal, ths Court held: (1) that the 1888-1890 Acts dd not create a trust n favor of the 1886 Mdewakantons and ther descendants; and (2) that the 1980 Act termnated any such trust, f t ever exsted. Wolfchld V1, 559 F.3d at 1255, 1260 (A252, 257). n the wake of ths Court's rulng n Wolfchld V1, the Plantffs and ntervenor-plantffs varously moved to amend ther complants to add four new clams (or sets of clams) that ether dd not rely on a trust theory or dd not exclusvely rely on the 1888-1890 Acts. See US. Br. at 13-14. The new clams alleged: that DO offcals volated "use restrctons" n the 1888-1890 Acts, even f the statutes mposed no trust dutes, A383-405, A466-488;

Case: 12-5035 Document: 92 Page: 17 Fled: 12/21/2012 that DO offcals volated trust dutes or other oblgatons by falng to convey or assgn lands to "loyal" Soux under Acts of February and March 1863 ("1863 Acts"), A407-409, A450-455, A489-493; that DO offcals volated the ndan Non-ntercourse Act (25 U.S.C. 177) by dsposng, at publc sale, lands allegedly set asde for loyal Soux n the 1863 Acts, A493-499; and that DO offcals caused an uncompensated "takng" n volaton of the Ffth Amendment by dsposng, at publc sale, lands allegedly set asde for the loyal Soux n the 1863 Acts. A410-422. 3 The present appeal and cross'-appeals nvolve the CFC's dsposton of these proposed addtonal clams. 3 The ctatons heren are to motons to amend and proposed amended complants separately fled by: (1) the orgnal Plantffs Sheldon Peters Wolfchld et. al., see A459-61; (2) ntervenor-plantffs "Robertson/Vadnas lneal descendants," see A347-48; and (3) ntervenor Plantffs Jula Dumarce, et al.. A432-458. Numerous other plantff groups also ntervened and moved to amend after ths Court's rulng n Wolfchld V. See WolfchldlV, 77 Fed. C1. at 34-35 & n. 19 (A208-209) (chart of ntervenor-plantffs); see also A604-609 (docket entry nos. 932-938, 943-950, 952-956, 959-960, 972, 976, 986). The pleadngs cted heren are representatve of all proposed clams brought to and resolved by the CFC. See Wolfchld v. Unted States, 101 F.3d C1.54, 64-76 (2011) ("Wolfchld V") (A62-74).

Case: 12-5035 Document: 92 Page: 18 Fled: 12/21/2012 B. Judgment on "Use Restrcton" Clams The CFC permtted the Plantffs and ntervenor-plantffs to add the userestrcton clams. U.S. Br. at 7-8, 13-17. These clams relate to approxmately $60,000 n land revenues derved from the 1886 lands before 1980, whch revenues were held by DO n varous trust accounts at the tme of the 1980 Act. d. at 7-8, 27-28. After Congress enacted the 1980 Act, DO dstrbuted the pre-act revenues to the three Soux communtes named n the Act. d. Upon motons for partal summary judgment, the CFC determned that DO had been "statutorly mandated" - under the 1888-1890 Acts - to dsburse the 1886 land revenues to the 1886 descendants (and not the three Communtes). Wolfchld v. Unted States, 96 Fed. Ct. 302, 336-353 (2010) (" Wolfchld V") (A35-51). The CFC further held that the statute of lmtatons dd not bar the Clamants' acton for damages relatng to the alleged unlawful dsbursement of land revenues because the so-called "ndan Trust Accountng Statute" ("TAS") appled and permtted the clam. d. at 331-335 (A30-34). The CFC subsequently entered judgment aganst the Unted States n the amount of $673,944, the stpulated present value of the funds allegedly unlawfully dsbursed. Wolfchld v. Unted States, 101 Fed. C1.54, 91-92 (2011) (" Wolfchld V") (A89); A92.

! Case: 12-5035 Document: 92 Page: 19 Fled: 12/21/2012 C. Denal of Other Proposed Clams The CFC dsallowed the other proposed amendments for "futlty," holdng that the clams would not survve motons to dsmss for falure to state a clam f the amendments were allowed. 4 Wolfchld V, 101 Fed. C1. at 64-76 (A62-74). The CFC reasoned as follows. 1. 1863 Acts Congress enacted the 1863 Acts, n the wake of the 1862 Soux rebellon, to annul treates that had establshed a Soux reservaton n south central Mnnesota and to open the former reservaton lands to settlement and sale under publc-land laws. See U.S. Br. at 19-20 (ctng Act of Feb. 16, 1863, 12 Star 642; Act of Mar 3, 1963, 12 Stat. 819); see also pp. 13-16, nfra. n so dong, Congress authorzed the Secretary to set asde, from the former reservaton lands, up to 80 acres of publc land for each "mertorous" ndvdual ndan who had had aded settlers durng the rebellon. Act of Mar 3, 1963, 12 Stat. 819. As prevously explaned (U.S. Br. at 19-20), the Secretary dd not exercse ths authorty, due to opposton from settlers. See Wolfchld V, 559 F.3d at 1232 (A229); see also pp. 16-17, nfra. 4 The CFC also dsmssed one added clam t had allowed va an earler amendment. See Wolfchld V, 96 Fed. C1. at 335-36 (A34-35); Wolfchld V, 101 Fed. C1. at 76 (A74).

Case: 12-5035 Document: 92 Page: 20 Fled: 12/21/2012 n ther proposed amended complants, the Plantffs and ntervenor- Plantffs alleged that federal offcals, n falng to exercse ther authorty under the 1863 Acts, breached a statutory oblgaton and/or trust duty to provde lands to the "loyal" or "frendly" Soux (.e., those ndans, who, n the terms of the 1863 Acts, had "exerted" themselves n "rescung" settlers from "massacre.") A407-409, A450-455, P/489-493; see also Wolfchld V, 01 Fed. C1. at 69-70 (A67-69) (descrbng clams). Plantffs and ntervenor-plantffs - who clam to be lneal descendants of the 1886 Mdewakantons (.e., persons elgble to receve benefts under the 1888-1890 Acts) - alleged or mpled that ther ancestors were also enttled to land under the 1863 Acts. d. The Unted States opposed the proposed amendments, argung that the 1863 Acts dd not mpose any trust oblgaton or other money-mandatng duty enforceable under the Tucker Act and that the clams were barred by the statute of lmtatons. See Wolfchld V, 101 Fed. C1. at 70 (A68). The CFC addressed only the former argument, holdng that that the text of the 1863 Acts was "patently dscretonary" and could not be nterpreted as mposng a mandatory duty or specfc fducary oblgaton. d. at 72-73 (A70-71). 2. ndan Non-ntercourse Act n the ndan Non-ntercourse Act of 1793 (whch amended an earler statute of 1790), Congress declared that "no purchase or grant of lands, or of any ttle or 9

Case: 12-5035 Document: 92 Page: 21 Fled: 12/21/2012 clam thereto, from any ndans Or naton or trbe of ndans... shall be of any valdty n law or equty, unless the same be made by a treaty or conventon entered nto pursuant to the consttuton." Oneda County, N.Y.v. Oneda ndan Naton of New YorkState, 470 U.S. 226, 232 (1985) (quotng 1 Stat. 330, 8 (1793)); see also 25 U.S.C. 177. 5 Under ths Act, any conveyance of land or nterest n land from an ndan trbe s vod, unless "made n accordance wth a federal treaty or statute." Shoshone ndan Trbe of Wnd Rver Reservaton, Wyo. v. Unted States, 672 F.3d 1021, 1037-39 (Fed. Cr. 2012). n ther proposed amended complant, the Plantffs alleged: (a) that the 1863 Acts set asde an unspecfed 21,120 acres of land for the 1886 Mdewakantons (or loyal Soux) as a group, 6 A498 ( 160, 164); or, alternatvely, (b) that prelmnary actons by DO offcals under the 1863 Acts set asde a specfc 12 sectons of land for the 1886 Mdewakantons (or loyal Soux). A494 ( 143). As already noted, the Secretary of the nteror ultmately dd not convey or assgn any of the 5 The Act presently states that "[n]o purchase, grant, lease, or other conveyance of lands, or of any ttle or clam thereto, from any ndan naton or trbe of ndans, shall be of any valdty n law or equty, unless the same be made by treaty or conventon entered nto pursuant to the Consttuton." 25 U.S.C. 177. 6 As prevously explaned (U.S. Br. at 21), federal censuses taken n 1886 and 1889 dentfed a total of 264 Mdewakantons n Mnnesota. d. Plantffs used ths number (264 tmes 80) as a bass for allegng (A489 ( 160)) that the 1863 Acts (enacted 25 years earler) granted the loyal Soux a total of 21,120 acres. 10

Case: 12-5035 Document: 92 Page: 22 Fled: 12/21/2012 12 sectons or any other former reservaton lands under the 1863 Acts. See Wolfchld V, 559 F.3d at 1232 (A229). nstead, federal offcals allowed the former reservaton lands to be sold under homestead and publc-land laws. See Wolfchld V, 101 Fed. C1. at 66, 74 (A64, 72). Plantffs alleged that the "government sale" of the "21,120 acres" of alleged trbal land - ncludng the specfed 12 sectons of alleged trbal land - consttuted a volaton of the ndan Non-ntercourse Act. A494 ( 143-144), A498-99 ( 164). The Unted States opposed the proposed amendment, argung, nter ala: (a) that the subject lands had never been conveyed to ndans, (b) that the 1886 Mdewakantons (alleged benefcares also of the 1863 Acts) were not a trbe for purposes of the Non-ntercourse Act; (c) that the Non-ntercourse Act provdes no bass for a Tucker-Act clam aganst the Unted States; and (d) that the clams were barred by the statute of lmtatons. The CFC addressed only whether the 1886 Mdewakantons and/or the "'frendly Soux' dentfed n the 1863 Acts were a 'trbe.'" Wolfchld V, 101 Fed. C1. at 65-69 & n. 14 (A63-67). Although the CFC determned that the 1886 Mdewakantons and ther descendants were and are an "dentfable group of ndans" for purposes of the ndan Tucker Act, d. at 67; see also US. Br. at 16-17, the CFC held that the 1886 Mdewakantons and "frendly Soux" were not "trbes" for purposes of the Non-ntercourse Act, but 1

Case: 12-5035 Document: 92 Page: 23 Fled: 12/21/2012 nstead were collectons of ndvduals. Wolfchld V, 101 Fed. C1. at 67-69 & n. 14 (A63-67). 3. Ffth Amendment Takngs Clause Echong the Plantffs' clam under the ndan Non-ntercourse Act (A493-499), ntervenor-plantffs Robertson-Vadnas Group alleged, n ther proposed amended complant (A410-422), that the 1863 Acts "granted the loyal Mdewakantons rghts of permanent occupancy of lands n Mnnesota," A415 (7213), that DO offcals took steps under the 1863 Acts to set asde 12 sectons of land for loyal Mdewakantons, A415-419 (77 213-220), but that DO offcals ultmately faled to convey the "desgnated property" to the loyal Mdewakantons," nstead "convey[ng]" the land to "whte settlers and land speculators." A419 (7221). The Robertson-Vadnas Plantffs alleged that these actons consttuted the takng of "cognzable property nterests" and that the government's subsequent "wthholdng" of 80-acre tracts from the descendants of loyal Mdewakantons amounted to a "'contnuous' takng." A421 (7 226). The Unted States opposed the proposed amendment, argung, nter ala, that the 1863 Acts conveyed no property nterests and that the statute of lmtatons had long snce run on the alleged takng. See Wolfchld V, 101 Fed. C1. at 73 (A71). The CFC addressed the latter clam only, holdng that the alleged takngs occurred at the pont the subject property was sold (sometme between 1871 and 1895) and 12

!! Case: 12-5035 Document: 92 Page: 24 Fled: 12/21/2012 that the "contnung clams" doctrne dd not apply to toll the statute of lmtatons. d. at 74-76 (A72-74). SUPPLEMENTAL STATEMENT OF FACTS (CROSS-APPEAL) A. Abrogaton of Treaty Rghts and Dsposton of Treaty Lands n a seres of treates n 1851 and 1858, the Mnnesota Soux - comprsed of the Mdewakanton, Wahpakoota, Ssseton, and Wahpeton Bands (herenafter, the "Mnnesota bands") - ceded ther aborgnal lands to the Unted States n exchange for a reservaton n south central Mnnesota and substantal annutes and other fnancal commtments. Wolfchld V, 96 Fed. C1. at 311-313 (A 10-12). n the wake of the Soux rebellon of 1862, durng whch over 500 settlers were klled, Congress enacted two statutes for the prncpal purpose of abrogatng the treaty rghts of the Mnnesota bands and removng the Soux from Mnnesota. d. at 313 (A12). The frst statute, enacted n February 1863, declared all pror treates wth any one or more of the Mnnesota Bands to be "abrogated and annulled," and declared all "lands and rghts of occupancy wthn the State of Mnnesota" and "all annutes and clams" of the bands to be "forfeted" to the Unted States. Act of Feb. 16, 1863, ch. 37, 1, 12 Stat. 652. The Act also contaned provsons to allow former treaty funds -.e., funds that otherwse would have been due to the bands 13

, Case: 12-5035 Document: 92 Page: 25 Fled: 12/21/2012 under the treates - to be used to make reparatons to Mnnesota settlers who suffered damages n the rebellon. d., 2-8, 12 Star. 652-54. The second statute, enacted n March 1863, provded for the relocaton of the Mnnesota bands away from Mnnesota and the dsposton of lands wthn the former reservaton. Act of Mar. 3, 1863, ch. 119, 12 Stat. 819-820. The Act "authorzed and drected" the Presdent to "set apart," for the Mnnesota bands, "a tract of unoccuped land outsde of the lmts of any state," suffcent n sze to provde each "wllng" band member "80 acres of good agrcultural lands." d., 1, 12 Stat. 819. As for the former reservaton lands n Mnnesota, the Act provded for the survey, subdvson, and apprasal of such lands, d. 2, and declared that such lands "shall be open to preempton, entry, and settlement n the same manner as other publc lands" "after the [requred] survey," and that any lands "not... settled upon" may be sold "as other publc lands are sold" for not less than apprased value. d., 3. The Act stated that the "money arsng from sad sale shall be nvested by the Secretary of the nteror for the beneft of [the Mnnesota bands] n ther new homes." d., 4. B. Authorty to Ad Loyal Soux At the same tme that Congress abrogated the treaty rghts of the Mnnesota Bands and provded for the dsposton of treaty lands, Congress made specal provsons for ndvdual Soux who had aded settlers durng the 1862 rebellon 14

Case: 12-5035 Document: 92 Page: 26 Fled: 12/21/2012 (herenafter, the "loyal Soux"). Specfcally, n Secton 9 of the February 1863 Act, Congress "authorzed" the Secretary of the nteror to "set apart of the publc lands, not otherwse approprated, eghty acres n severalty to each ndvdual of the [Mnnesota Bands] who exerted hmself n rescung the whtes from the late massacre of sad ndans." Act of Feb. 16, 1863, Ch. 37, 9, 12 Stat. 654. The Act provded that such lands "shall not be subject to any tax, forfeture, or sale," "shall not be alened or devsed except by the consent of the Presdent," and "shall be an nhertance to sad ndans and ther hers forever." d. Congress authorzed these land grants to ndvdual loyal Soux before makng the provsons n the March 1863 Act (supra), for the relocaton of the Mnnesota Bands as a whole and the openng of former reservaton lands to the publc. Accordngly, the reference n the February 1863 Act to "publc lands, not otherwse approprated" presumably was to publc lands outsde of the former reservaton. n Secton 4 of the March 1863 Act, Congress provded for the frst tme that loyal Soux lawfully could be located on former reservaton lands. Act of March 3, 1963, Ch. 119, 4, 12 Stat. 819. Specfcally, the Act stated that "t shall be lawful for [the] Secretary to locate any mertorous ndvdual ndan of [the Mnnesota Bands], who exerted hmself to save the lves of the whtes n the late massacre, upon sad [former reservaton] lands on whch the mprovements are stuated, assgnng the same to hm to the extent of eghty acres to be held by such tenure as 15

! Case: 12-5035 Document: 92 Page: 27 Fled: 12/21/2012 s or may be provded by law." d. The Act further stated that "no more than eghty acres shall be awarded to any one ndan, under ths or any other act." d. C, Aborted Efforts to Provde Lands under the 1863 Acts Followng the enactment of the 1863 Acts, mssonares workng wth homeless loyal Soux lobbed for fundng to help settle the loyal Soux on former reservaton lands. See Roy W. Meyer, HstOry of the Santee Soux, 261 (U. Nebraska Press 1967). n February 1865, Congress approprated $7,500 to be used, nter ala, to "make provsons for [the] welfare" of ndans who shall "appear specally enttled thereto, for ther frendly, extraordnary, and gallant servces n rescung whte settlers from massacre." Act of Feb. 9, 1865, Ch. 9, 2, 13 Stat. 427; see also US. Br. at 20. n March 1865, after such fundng was secured, the Rev. Samuel D. Hnman wrote Wllam P. Dole, then Commssoner of ndan Affars, askng that twelve sectons of land (7,680 acres) be wthdrawn from preempton and sale, per the March 1863 Act, untl allotments could be made for mertorous Soux. Meyer at 262. Two days later, on March 17, 1865, the Secretary of the nteror wrote Commssoner Dole, notng the need to "mmedately wthdraw" a porton of the reservaton for such allotments. Meyer at 262; see also ntervenor-plantffs' Bref (Addendum) (March 17, 1865 letter from Secretary Usher to Commssoner Dole). n hs letter, the Secretary authorzed the Rev. Hnman to desgnate twelve 16

! Case: 12-5035 Document: 92 Page: 28 Fled: 12/21/2012 sectons, and stated that he would drect local land offcers to reserve the desgnated sectons, once notfed of Hnman's selecton. d. Hnman thereafter dentfed 12 sectons on the south bank of the Mnnesota Rver n the vcnty of the former (pre-rebellon) ndan agency. Meyer at 262. n Aprl 1865, Hnman's efforts were abruptly halted. Respondng to wdespread publc sentment opposng any ndan settlement n Mnnesota, General John Pope, who was responsble for mltary actons aganst rebel ndans, forbade settlement on the former reservaton wthout orders from Pope or hgher authortes. d. Presdent Ulysses S. Grant sustaned Pope's decson, ld. at 263. A later attempt n 1869 to settle loyal Soux on former reservaton lands was also unsuccessful. WolfchM V, 101 Fed. C1. at 66, n. 11 (A64). The twelve sectons of land were restored to publc land sales and sold, sometme between 1871 and 1895. d. at 74 (A72). Ultmately, DO never made any formal conveyance or assgnment of land to ndvdual loyal Soux under the 1863 Acts. 17

Case: 12-5035 Document: 92 Page: 29 Fled: 12/21/2012 SUMMARY OF ARGUMENT A. Reply on Unted States' Appeal The Unted States openng bref demonstrates that the CFC's judgment on the use-restrcton clams under the 1888-1890 Acts must be reversed for two reasons: (1) the 1888-1890 Acts mposed no money-mandatng duty n favor of the Clamants on whch a Tucker-Act or ndan-tucker-act clam can be based; and (2) the clams accrued between 1981 and 1983 and are tme barred. The Clamants have no substantal response on ether pont. ndeed, Plantffs do not even attempt to defend the CFC's nterpretaton of the 1888-1890 Acts and do not address the applcaton of the statute-of-lmtatons to the use-restrcton clamper se. nstead, Plantffs proceed drectly to ther cross-appeal (P. Br. at 47-65) and assert the rght to a greater judgment on a broader theory of lablty (dependent on the NA and the 1863 Acts), whch the CFC correctly rejected. Whle the ntervenor-plantffs do attempt to defend the CFC's nterpretaton of the 1888-1890 Acts (nt.-pl. Br. at 14-18), they mstakenly assume that allegng a "non-frvolous" clam under the ndan Tucker Act suffces for defendng a fnal judgment and that that the CFC's "fndngs" on questons of Congressonal ntent are enttled to deference. At bottom, nether the Plantffs nor the ntervenor-plantffs provde a textbased defense of the CFC's nterpretaton of the 1888-1890 Acts because there s 18

l Case: 12-5035 Document: 92 Page: 30 Fled: 12/21/2012 none. The 1888-1890 Acts approprated funds to be expended for the one-tme purchase of land and/or chattels for ndvdual ndans. The 1888-1890 Acts dd not antcpate future land revenues, contaned no provsons for the dsbursement of any such revenues, and conferred no benefts upon descendants. Even f the Acts could be nterpreted as mposng "restrctons" on the use of the later-derved revenues, the 1888-1890 Acts cannot be seen as mandatng any partcular dsbursement or enttlng 1886 descendants, ndvdually or as a group, to any partcular share of the revenues. As for the statute of lmtatons, the so-called ndan Trust Accountng Statute ("TAS") requres an "accountng" for clam accrual only for clams concernng a "loss to or msmanagement of trust funds." Because TAS broadens the Unted States' waver of soveregn mmunty, t must be strctly construed n favor of the soveregn. Nether the Plantffs nor the ntervenor-plantffs acknowledge ths nterpretve rule or ts mplcatons. Clamants rely on the fact that nteror held the revenues n trust accounts, but ths fact s rrelevant to the use-restrcton clam. At bottom, the use-restrcton clam s not a trust clam, but a clam that the land revenues were the equvalent of appropratons and that DO volated statutory use restrctons on the use of the "appropratons." n TAS, Congress dd not unequvocally extend the Unted States' waver of soveregn mmunty wth respect to clams concernng the msuse of appropratons. 19

Case: 12-5035 Document: 92 Page: 31 Fled: 12/21/2012 B. Response to Cross-Appeals 1. Plantffs' Cross-Appeal Plantffs seek to pursue two clams dsallowed by the CFC: a "statutory land clam" and a "statutory funds clam." The former clam relates to the 12 sectons (7,680 acres) of former reservaton land that the Secretary of the nteror dentfed and prelmnarly set asde under the 1863 Acts, but ultmately never assgned to ndvdual loyal Soux. Plantffs contend that that the Secretary volated a trust oblgaton, under the 1NA, by falng to complete the assgnments. Ths clam fals for at least three reasons. Frst, the NA mposes no oblgatons on federal offcals; t smply declares that conveyances of land or land nterests from ndan trbes are vod absent Congressonal approval. Second, Plantffs' allegatons do not even mplcate the NA. The NA apples to conveyancesj?orn an ndan trbe, whle Plantffs allege a falure to convey lands to ndvdual ndans. Thrd, any complant regardng the 7,680 acres s tmebarred. Plantffs allege that the clam for falure to convey 7,680 acres dd not accrue untl all former reservaton lands (approxmately 500,000 acres) were sold, whch accordng to Plantffs, dd not occur untl 2002. But the 7,680 acres were a specfcally-dentfed 12 sectons of land and the supposed "last remanng parcel" was only 4.80 acres n sze, facts that wholly undermne Plantffs' argument. 0

Case: 12-5035 Document: 92 Page: 32 Fled: 12/21/2012 Plantffs' "statutory funds clam" s also mertless. Even f Clamants were enttled to judgment on the use-restrcton clam, the dstrct court dd not err n lmtng the judgment to revenues derved before 1980. n the 1980 Act, Congress unambguously declared the 1886 lands to be held n trust for the three Communtes. n WolfchM V, ths Court held that the 1886 lands were never held as a reservaton for the 1886 Mdewakantons and that the 1980 Act abrogated any preexstng trust. 2.. ntervenor-plantffs' Cross Appeal ntervenor-plantffs seek to pursue one clam dsallowed by the CFC: a clam under the February 1863 Act. ntervenor-plantffs allege that the February 1863 Act was not superseded by the March 1863 Act, that the Unted States assumed a trust duty to the loyal Soux under the February 1863 Act when the Secretary of the nteror prelmnarly set asde the 12 sectons of land, and that the Unted States breached the trust by not managng the lands for the loyal Soux and ther descendants. Ths clam also fals for multple reasons. Frst, the February 1863 Act merely "authorzed" conveyances to the loyal Soux; t mposed no mandate. Second, the March 1863 Act alone referenced the former reservaton lands and unambguously provded broad dscretonary authorty. Specfcally, the March 1863 Act merely made t "lawful" for the Secretary to "locate" loyal Soux on the former reservaton lands, and authorzed the Secretary to make land 21

Case: 12-5035 Document: 92 Page: 33 Fled: 12/21/2012 assgnments for any tenure allowed by law. Thus, even f the Secretary's desgnaton of the 12 sectons of land was an mplct assgnment, t was not an assgnment vestng an nalenable nhertance that can be clamed by ntervenor- Plantffs. ntervenor-plantffs also assert clams under the 1851 and 1858 treates, but these clams were never presented to the CFC and are waved. n any event, ntervenor-plantffs' contenton that they possess survvng treaty rghts cannot be reconcled wth the plan terms of the February 1863 Act annullng all such rghts. STANDARD OF REVEW (CROSS-APPEAL) A denal of leave to amend, when based on a legal nterpretaton, s revewed de novo. See Sanof-Avents v. Apotex nc., 659 F.3d 1171, 1182 (Fed. Cr. 2011). The presence of subject-matter jursdcton s a legal queston revewed de novo, Central Pnes Land Co., L.L.C. v. Unted States, 697 F.3d 1360, 1363 (Fed. Cr. 2012), as s the applcaton of the statute of lmtatons. Brown v. Unted States, 195 F.3d 1334, 1337 (Fed. Cr. 1999). 22

, Case: 12-5035 Document: 92 Page: 34 Fled: 12/21/2012 REPLY ARGUMENT (UNTED STATES' APPEAL) The Unted States demonstrated n ts openng bref that the CFC's judgment on the use-restrcton clams must be reversed for two reasons. Frst, the relevant statutes (the 1888-1890 Acts) dd not mpose any "money-mandatng" oblgatons on federal offcals wth respect to the dsposton of the subject land revenues on whch a Tucker Act clam can be stated. U.S. Br. at 32-46. Second, the Clamants' cause of acton for the alleged unlawful dsbursement of the land revenues accrued, at the latest, n 1981 and 1982 and are tme barred. d. at 46-54. Plantffs and ntervenor-plantffs fal to rebut ether pont. 7 o CLAMANTS CANNOT STATE A CLAM UNDER THE 1888-1890 ACTS A The 1888-1890 Acts Planly mpose No Dutes Wth Respect to Revenues from the 1886 Lands or the 1886 Descendants To state a vable clam under the Tucker Act (28 U.S.C. 1491) or ndan Tucker Act (28 U.S.C. 1505), a plantff must: (1) dentfy a "substantve source of law" that places "specfc fducary or other dutes" on federal offcals and 7 The Unted States' openng bref also demonstrated that the CFC erred when determnng that Congress repealed part of the ndan Trbal Judgment Fund Use or Dstrbuton Act ("Trbal Judgment Act"), an ssue that requres resoluton only f the CFC's judgment s affrmed. See U.S. Br. at 9, 54-60. The ntervenor- Plantffs do not attempt to defend the CFC's Trbal Judgment Act rulng and the Plantffs' perfunctory (two-paragraph) defense (Pl. Br. at 70-71) rases no new ponts warrantng a reply. 23

Case: 12-5035 Document: 92 Page: 35 Fled: 12/21/2012 (2) show that the source of law "can be farly nterpreted as mandatng compensaton for damages sustaned as a result of a breach of [the dentfed] dutes." Unted States v. Navajo Naton, 556 U.S. 287, 290 (2009) (nternal quotatons and ctatons omtted). Clamants cannot make ether showng as to the 1888-1890 Acts and the dstrbuton of revenues from 1886 lands. As prevously explaned, the 1888-1890 Acts approprated funds to be used for the one-tme purchase of land or chattels for ndvdual ndans then resdng n Mnnesota and now known as the 1886 Mdewakantons. See U.S. Br. at 37-45. Lke all appropratons statutes, the 1888-1890 Acts contaned restrctons on the use of the approprated funds, ncludng a requrement- n the 1889 and 1890 Acts - that, "as far as practcable," the funds were to be used to provde each elgble n_tan wth "an equal amount n value of [the approprated funds]." Act of Mar. 2, 1889, Ch. 412, 25 Stat. 992-993; Act of Aug. 19, 1890, Ch. 807, 26 Stat. 349. Clamants dentfy no authorty, however, for the proposton that a moneymandatng duty can be nferred from language that merely restrcts the expendture of appropratons. Nor do Clamants contend that DO offcals volated any use restrcton mposed under the 1888-1890 Acts when expendng the appropratons. 8 8 DO used an 1886 census (as supplemented n 1889) to determne elgblty for benefts under the 1888-1890 Acts. Wolfchld V, 559 F.3d at 1234, 1243 (A231, 240); US. Br. at 21. Some of the ntervenor-plantffs n ths case -desgnated as 24

Case: 12-5035 Document: 92 Page: 36 Fled: 12/21/2012 Rather, Clamants contend that, many generatons after the expendture of the approprated funds, DO breached an oblgaton to the 1886 descendants wth respect to revenues derved from lands purchased wth the approprated funds. Clamants frst predcated ther clams on a trust theory,.e., the theory that all lands purchased under the 1888-1890 Acts were held n trust for the 1886 Mdewakantons as a group. f DO had an ongong duty to hold and manage the 1886 lands as trust assets for the Mdewakantons as a group, revenues derved from the lands arguably would be trust assets, and the alleged mproper dsbursement of these revenues 9 arguably mght gve rse to a breach of trust clam by the 1886 descendants, even though the 1888-1890 Acts say nothng about land revenues or the descendants. 1 Gven the mportance of the trust theory for nferrng any duty the "Group B" ntervenor-plantffs - clam to be lneal descendants of ndans who were elgble to receve benefts under the 1888-1890 Acts, but who were not among the 264 persons named n the censuses. See U.S. Br. at 12-13. Although the Group B ntervenor-plantffs seek to share n the CFC's judgment rendered on behalf of the 1886 descendants, see nt.-pl. Br. at 1-10, they do not allege that DO breached an oblgaton by falng to purchase lands or chattels for ther ancestors from the 1888-1890 appropratons. 9The Unted States does not concede that the dsbursement of the land revenues to the three Soux Communtes was contrary to the terms of the 1888-1890 Acts. See U.S. Br. at 45. 10 Statutes establshng trust lands wthout mposng fducary dutes on federal offcals do not gve rse to ndan Tucker Act clams. Unted States v. Mtchell, 445 U.S. 535,542-46 (1980) ("Mtchell f'). However, where statutes establsh 25

Case: 12-5035 Document: 92 Page: 37 Fled: 12/21/2012 n relaton to the 1886 descendants, ths Court permtted nterlocutory appeal on two questons relatng to the exstence of any trust duty. Wolfchld V, 559 F.3d at 1237 (A234). Ths Court held that the 1888-1890 Acts dd not create any trust n favor of the 1886 Mdewakantons or ther descendants and that any trust that mght have been created was abrogated by the 1980 Act. d. at 1255, 1260 (A252, 257). These rulngs should have ended the case. The 1888-1890 Acts are utterly slent as to descendants and land revenues. See Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29; Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93; Act of Aug. 19, 1890, ch. 807, 26 Stat. 336, 349. Whle authorzng land purchases for ndvdual ndans, the 1888-1890 Acts contan: (a) no drecton on the ttle or nterest to be conveyed to the orgnal land recpents, (b) no drecton on the use or dsposal'of 1886 lands upon the death of an orgnal assgnee or abandonment of an assgned tract, (c) no drecton on the use of unoccuped 1886 lands to derve revenue; and (d) no drecton on the dsposton of revenues so derved. d. Absent a duty to manage the 1886 lands n perpetuty as trust assets for the 1886 specfc trusts and gve federal offcals pervasve control over the management of trust resources, a cause of acton for breach of trust can be nferred. Unted States v. Mtchell, 463 U.S. 206, 224-228 (1983) ("Mtchell r'); Unted States v. Whte Mountan Apache Trbe, 537 U.S. 465, 474-79 (2003). 26

Case: 12-5035 Document: 92 Page: 38 Fled: 12/21/2012 Mdewakantons as a group, there was no plausble bass for a clam to land revenues by the 1886 descendants. To be sure, as prevously explaned (U.S. Br. at 37-39), DO offcals nterpreted the 1888-1890 Acts as gvng them authorty to retan ttle (on behalf of the Unted States) to lands purchased for ndvdual 1886 Mdewakantons, to reassgn these 1886 lands to selected 1886 descendants upon the death of or abandonment by the orgnal assgnee, and to use unoccuped 1886 lands to generate revenue. See generally Wolfchld V, 559 F.3d at 1246-49 (A243-46). The dscretonary authorty to assst select ndvdual 1886 descendants, however, s a far cry from a specfc duty, much less a "money mandatng" duty on behalf of the 1886 Mdewakantons as a group. Because the 1888-1890 Acts contan no specfc dutes wth respect to land revenues and/or the 1886 descendants, the CFC erred n fndng jursdcton over, and grantng judgment on, Clamants' ndan Tucker Act clams. Navajo, 556 U.S. at 302. Plantffs and ntervenor-plantffs have not shown otherwse. B. "Context" Does Not Supply Otherwse Mssng Statutory Dutes nstead of attemptng a text-based defense of the CFC's nterpretaton of the 1888-1890 Acts, Plantffs and ntervenor-plantffs make rrelevant and unpersuasve arguments regardng the context of the Acts. 27

Case: 12-5035 Document: 92 Page: 39 Fled: 12/21/2012. J The 1888-1890 Acts Dd Not Create Reservatons for the 1886 Mdewakantons Plantffs contend (Pl. Br. at [80-82]) that the 1888-1890 Acts must be construed n the context of events that Occurred decades after ther enactment, vz., the purported fact that DO "by 1935 had set apart.., three reservatons for the 1886 Mdewakantons" from lands purchased under the 1888-1890 Acts. Plantffs suppose (d.) that, because DO establshed reservatons (allegedly) for the 1886 Mdewakantons as a group on lands purchased under the 1888-1890 Acts, the terms of those Acts - and especally the "equal value requrement"- farly can be nterpreted as requrng land revenues to be used for all group members, nclusve of lneal descendants, 1 Ths argument s constructed on a false predcate: vz., that DO establshed reservatons for the 1886 Mdewakantons. After Congress enacted the ndan Reorganzaton Act of 1934 ("RA"), the Mdewakanton Soux then resdng n separate communtes on three dstnct blocks of land purchased under the 1888- _1Plantffs also repeat the unfounded asserton that the equal value provso would be "superfluous as t relates to the 1886 Mdewakanton benefcary class created by the [1888-1890 Acts]," f not read to "requre that the 1886 [descendants] be treated equally regardng funds dervng from the reservatons [1886 lands]." As explaned (US. Br. at 44-45), the equal value provso, whch appeared only n the 1889 and 1890 Acts, appled to the orgnal appropratons. The refusal to apply the equal value provso n a later context to whch t cannot plausbly be appled (d. at 41-44) does not render t superfluous as to ts ntended purpose. 28

Case: 12-5035 Document: 92 Page: 40 Fled: 12/21/2012 1890 Acts sought to organze and obtan offcal recognton from the Unted States. See U.S. Br. at 24-25. The RA permts any "ndan trbe" to adopt a consttuton and bylaws to be approved by the Secretary of the nterorl 25 U.S.C. 476(a), and defnes "ndan trbe" broadly to nclude, n addton to alreadyorganzed trbes, bands, and pueblos, "the ndans resdng on one reservaton." d., 479. Because the 1888-1890 Acts authorzed land purchases for ndvdual ndans who had "severed ther trbal relatons," see Act of June 19, 1888, Ch. 503, 25 Stat. 217, Act of Mar. 2, 1889, Ch. 412, 25 Stat. 992, Act of Aug. 19, 1890, Ch. 807, 26 Stat. 349, DO offcals determned that the ndans resdng on the 1886 lands could not organze as an extant trbe. A2833, 2835. But DO offcals also determned that the three ndan communtes each could organze as "ndans resdng on one reservaton." A2836-2837. Contrary to Plantffs' argument (Pl. Br. at 82), ths determnaton dd not somehow "set apart" the 1886 lands as "three reservatons for the 1886 Mdewakantons" as a group. Rather, DO smply determned that ndans then resdng on 1886 lands could organze under the RA, on the theory that the three blocks of land assgned to ndvdual ndans (to be augmented by addtonal land purchases for the exstng Communtes) each consttuted a "reservaton" wthn the meanng of the RA. A2836-37. DO dd not purport to make any determnaton as to non-resdent 1886 descendants or all 1886 descendants as a 29