Zephier Petition For Writ of Certiorari To The U.S

QUESTIONS PRESENTED


1. Whether the Federal Circuit Court of Appeals erred in failing to recognize the existence of a trust corpus in property and beneficiary rights for and on behalf of the lineal descendants of the Loyal Mdewakantons, from the March 3, 1863 Act and that the existing trust corpus was intended to be implemented and enhanced by the subsequent legislation found in the Appropriations Acts of 1888, 1889, 1890 and 1980.

2. Whether the Federal Circuit Court of Appeals erred in not applying the doctrine of judicial estoppel as set forth in New Hampshire v. Maine, 532 U.S. 742 (2001) and thus allowed the United States to argue the existence of a trust and obtain a favorable result in the Eighth Circuit, Cermak v. United States, 478 F.3d 953 (8th Cir. 2007) and to argue the lack of a trust and obtain a favorable result in the Federal Circuit; Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), thereby creating a split in the Circuits .

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LIST OF PARTIES
The List of Parties is set out in a separate letter to the Court.

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Page
TABLE OF CONTENTS

Questions Presented ..................................... i

List of Parties................................................ ii

Opinion Below .............................................. 1

Statement of Jurisdiction................................. 1

Statutory Provisions Involved ......................... 1

I. Statement of the Case................................. 4

II. Statement of Facts..................................... 4

Reasons for Granting the Petition .................... 28

III. Trust Existed Since 1863........................... 28

IV Judicial Estoppel........................................ 32

Conclusion..................................................... 42



APPENDIX INDEX


1862 Photo of Mdewakanton Dakota Sioux
Prison internment camp at Ft. Snelling .............App. 1


Old Map of Central North America in early
1800's ........................................................App. 2


Map of Minnesota Territory, 1849-1951...........App. 3


Map of where the Dakota Sioux were
settled, imprisoned and/or exiled to after
the 1862 uprising ............................................App. 4

Drawing of the mass execution hanging
of 38 Dakota Sioux prisoners at
Mankato, MN on December 26, 1962 .............App. 5

Map of Mnmesota in 1862 ...............................App. 6




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TABLE OF CONTENTS - Continued

Page
Congressional Record.......................................................................App. 7-21
Congressional Record, No. 156, May 26,1863
addressing the friendly Mdewakantons

Congressional Record, Census of the Indian
internment camp at Ft. Snelling, dated
December 2, 1862

Congressional Globe, Jan. 26, 1863, debate
over the Loyal Mdewakantons..........................................................App. 22-34
Pipestone Indian School Minutes, 11112/1919,
Dept. ofInterior ................................................................................App. 35-36

Sioux Scouts and Soldiers, Affidavit of Publi-
cation of Notice July 27, 1891 ..........................................................App. 37

Notice to Scouts, Soldiers and Their Descen-
dants, Samuel H. Elrod, 1891 ..........................................................App. 38

Description of Sioux Scouts and Soldiers Notice
and Benefits, 1891 ..........................................................................App. 39-41

U.S. Indian Service letter from Robert B. Henton
to Commissioner dated Jan. 15, 1896 .............................................App. 42

U.S. Indian Service letter from Wm.
Zimmermen, Jr. Asst. Commissioner,. to the
Commissioner, dated July 24, 1896, B.e: John
Cermak ............................................................................................App. 43-45

U.S. Court of Fed. Claims Court, Wolfchild v.
U.S., No. 03-2684L, Cermak Intervenors'
Memorandum of Law in Support of their
Motion to Intervene .........................................................................App. 46-57

Santee Sioux Roll, Act of March 4, 1917
(McLaughlin, Jan. 17, 1924)..............................................................App. 58-60


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TABLE OF CONTENTS - Continued

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Dept. of Interior letter from Tonner to Mc-
Laughlin dated Nov. 29, 1898 Re: Census ...................................... App. 61

Dept. of Interior letter from Acting Commis-
sioner Tonner to U.S. Indian Inspector
James McLaughlin, date Feb. 20, 1899 Re:
census ofMdewakanton ...................................................................App. 62-64

Census of Mdewakanton Sioux of Minnesota,
by U.S. Indian Inspector James McLaughlin,
dated Match 15, 1899 .....................................................................App. 65-67

Congo Globe, debate over school funding and
compensation, 1888 ........................................................................App. 68-71

Congo Globe, debate over Appropriations Acts,
1888 (Rep. McDonald) ......................................................................App. 71-86

Congo Globe, debate over 1888 Appropriations
Act Mdewakanton (McDonald, Ryan and
Blount) .............................................................................................App. 87-94

Elrod List of Sioux Scouts and Soldiers
1891 ................................................................................................App. 95-96

A Roll of Sioux Mixed Bloods, 1855-56 .............................................App. 97-98

Sioux Half Bloods of Minnesota,
Feb. 23, 1856 ..................................................................................App. 99-102

Two Early Lists of Mixed Blood Sioux ...............................................App. 103-111

A List of the White persons and Half Breeds de-
livered at Camp Release, Oct. 1862 ............................................... App. 112-115

Historical biographical article on Bishop Henry
Benjamin Whipple, a History of Minnesota,
Vol. II ...............................................................................................App. 116-118


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TABLE OF CONTENTS - Continued

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Map of Indian Land Cessions and Reservations
to 1858 ............................................................................................App. 119

New York Times news article dated Aug. 18,
1863, Waste of Warriors in the West, describ-
ing the bounty placed by the State of Min-
nesota, for Sioux scalps....................................................................App. 120-122

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OPINION BELOW

The three judge panel of the United States Court of Appeals for the Federal Circuit issued its Opinion and Order dated March 10, 2009, reversing the Dnited States Court of Federal Claims decisions that a trust existed in the 1886 lands of the Loyal Mdewakanton Dakota Sioux in Minnesota, by virtue of Appropriations Acts in 1888, 1889 and 1890, and also reversed on the Court of Federal Claims Court's finding that the 1980 Act did not terminate the trust as it pertained to the Loyal Mdewakantons.


STATEMENT OF JURISDICTION

The three judges of the United States Court of Appeals for the Federal Circuit in Wolfchild, et al. v. Q17,ited States reversed the trust rulings of the federal court of claims in its Opinion and Order dated March 10, 2009. The Petitioners filed for rehearing and reconsideration en bane, which was denied by the full panel of the Dnited States Court of Appeals for the Federal Circuit on June 11, 2009. The United States Supreme Court has jurisdiction of this case pursuant to 28 D.S.C. Section 1254(1).



STATUTORY PROVISIONS INVOLVED

Act of 1889, 25 Stat.980, 992-93 in pertinent part reads:
For the support of the full-blood Indians In Minnesota heretofore belonging to the


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Mdewakanton band Sioux Indians, who have resided in said State since the twentieth day of May eighteen hundred and eighty-six, or who were then engaged in removing to said State, and have since resided therein, and have severed their tribal relations, twelve thousand dollars, to be expended by the Secretary of the Interior as follows: Ten thousand dollars in the purchase, as in his judgment he may think best, of such lands, agricultural implements, seeds, cattle, horses, food, or, clothing as may be deemed best in the case of each of these Indians or family thereof; one thousand dollars or so much thereof as may be necessary, to defray the expenses of expending the money in this paragraph appropriated; and one thousand dollars for the completion and furnishing of the schoolhouse for said Indians authorized by [the 1888 Act]: Provided, that if the amount in this paragraph appropriated ... shall not be expended within the fiscal year for which either sum was appropriated, neither shall be covered into the Treasury, but shall, notwithstanding, be used and expended for the purposes for which the same amount was appropriated and for the benefit of the above-named Indians: And provided also, That the Secretary of the Interior may appoint a suitable person to make the above-mentioned expenditure under his direction; and all of said money which is to be expended for lands, cattle, horses, implements, seeds, food, or clothing shall be so expended that each of the Indians



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in this paragraph mentioned shall received [sic], as nearly as practicable, an equal amount in value of this appropriation .and that made by said act of June twenty-ninth, eighteen hundred and eighty-eight: And provided further, That as far as a practicable lands for said Indians shall be purchased in such locality as each Indian desires, and none of said Indians shall be required to remove from where he now resides and to any locality against his will.

Act- of February 16, 1863, 12 Stat.654, Section One reads in pertinent part: abrogated and annulled all treaties, between said Indians and the United States, declared all lands and rights of occupancy with the State of Minnesota and all annuities and claims heretofore accorded to said Indians or any of them, to be forfeited to the United States.

Act of March 3, 1863, 12 Stat.654. Section Nine
reads in pertinent part:

this statute authorized the Secretary of the Interior [t]o set apart of the public lands, not otherwise appropriated, eighty acres in severalty to each individual of the beforenamed bands who exerted himselr'in rescuing whites from the late massacre [by] said Indians. The land so set apart ... shall be an inheritance to said Indians and their heirs forever.

25 UB.C. §462 reads in pertinent part: ... [t]he existing periods of trust placed upon any Indian lands

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and any restriction on alienation thereof are extended and continued until otherwise directed by Congress.

I. STATEMENT OF THE CASE

This is not a case merely about money. This is an important case about recognizing and correcting history concerning a group of honorable people, who have left human legacies of accomplishment, descendancy, heirship, pain, suffering, personal tragedy, loss, near genocide, and hope, for the future. The three judge panel of the United States Court of Appeals for the Federal Circuit, in reversing the Federal Court of Claim's decision recognizing an existing and continuing trust corpus for the lineal descendants of the Loyal Mdewakanton from 1863 through the 1980 Act, if allowed to stand, creates a gross and unjust inequity affecting thousands of justly deserving Native American people. The lineal descendants petition to have this Court correct the obvious conflict within the Federal Circuit Court of Appeals itself and with the Eighth Circuit Court of Appeals decision on the same issue, caused by this Federal Circuit decision. These Petitioners join arguments put forth in the other Petitioners' petition for certiorari.


H. STATEMENT OF FACTS

Thousands of years had passed while the Native peoples of North America lived upon their valued aboriginal. homes. The aboriginal inhabitants of the continent viewed possession of material things as shared and communal. The spiritual and ecological

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environment allowed for the existence of man, plant and beast, in a balanced ecosystem functioning consistent with the beliefs gained through the guidance of the Great Spirit.


A. HISTORICAL BACKGROUND

Petitioners claim to be lineal decedents of individual Loyal Mdewakantons referenced in the March 3, 1863 Act and the Appropriations Acts of 1888, 1889 and 1890.

Many Petitioners are lineal descendants of the Chiefs Wabasha, Little Crow and Red Wing; Chiefs of the Mdewakanton Dakota Sioux who exercised governance over the Mdewakanton peoples. Individual potentate rights existed as 'to the Chiefs' heirs ,and lineal descendants including individual rights, remedies and property interests as set forth in the Sioux treaties from 1825 through 1868. Many of the Plaintiffs are lineal descendants of original Mdewakanton Dakota Sioux listed on the Henton List (commonly known as the "1886 Census" of the Mdewakanton SioUx: living in Minnesota since May 20th, 1886), and of the Loyal Mdewakantons (Loyals) ,derived from various other agency and governmental lists and resources such as the Sioux Scouts and Soldiers list of 1891 (Elrod List), the Renville Rangers, the Brown Scouts lists, the 1899 McLaughlin census, the Santee Sioux census of 1917, the Congressional Globe list of 1863-65, and the Loyal Mdewakanton lineal descendants who do not otherwise appear on any given


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census or list, who also would qualify as Loyal Mdewakantons. APP8-20,31-43,58-67,95-96.


B. HISTORY AND THE TREATIES


The significance of the treaties between the Mdewakanton Sioux and the United States, France, Spain and Britain cannot be understated. The Louisiana Purchase in 1803, was an agreement between the French government and the new United States government transferring the right to lands beyond Ohio and Missouri. Predating the Louisiana Purchase, and the Northwest Ordinance of July 13, 1787, it was France through its representatives, that negotiated sovereign to sovereign agreements with the various bands of the Sioux, including the Mdewakanton Sioux, which were based upon recognition of sovereign and individual rights of use, enjoyment, occupation and peace, with the Sioux, by and through their headmen and Chiefs, for the benefit of the "bands" as well as the individual members. When a "sovereign" makes treaties with another sovereign, such as the French with the Sioux, United States law recognizes that no treaty can be abandoned or abrogated without an express intent to abrogate. A sovereign to sovereign treaty cannot be abrogated by implication, nor by solely executive order or executive act. United States v. Dion, 476 U.S. 734, 740 (1986). The same holds true for statutes. The genesis of federal· Indian law only started with the onset of legal cases after 1 ~90, in cases such as Worcester v. Georgia, 31 U.S. 515 (1832). See Cohen's


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Handbook of Federal Indian Law, 2005 Ed., Ch.2, Sec. B.4, p. 60-72.


The Louisiana Purchase, however, never included the sovereign interests of the Sioux, nor the Mdewakanton Sioux. Treaty Between the United States of America and the French Republic, April 30, 1803 in Treaties and Other International Acts of the United States of America, v:.2 (Hunter Miller ed.) (1931). The Louisiana Purchase, -w.:hich allegedly formed the basis of the sovereign to sovereign relationship between the United States and the Sioux and its people, was not negotiated or agreed upon by any of the Sioux bands, tribes or individual chiefs. Article III recognizes:


that "the inhabitants of the [Louisiana Territory] ceded territory shall be incorporated in the Union of the United States admitted as soon as possible according to the principles of the Federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of liberty, property and the, Religion
which they profess."
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Id.

Further, Article VI of the Treaty stated that "The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians until by mutual consent of the United States and the said tribes or


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nations other suitable articles shall have been agreed upon." ld.


The Mdewakanton's aboriginal lands existed in the Minnesota and Dakota Territories. Only through the treaties of 1825, 1831, 1837, 1851, 1858 and 1868, have the United States and its agents dealt with the Mdewakatons and its individual Dakota Indians.


C.-------THE MINNESOTA SIOUX BEFORE AUGUST 1862


Before the formation of the United States, the Mdewakanton Dakota Sioux began seeing foreign visitors in their lands in Iowa, Wisconsin, Michigan and Minnesota. The territory of Minnesota prior to the 1851 Treaty of Traverse des Sioux, included only original counties called Wabashaw, Dahkotah, Mahkahta, Henton, Ramsey, Washington, Itasca, Pembina and Iowa. The County of Wabashaw alone, encompassed the present day southern portion of the present day state of Minnesota and beyond.

With the treaty cession to the United States in 1851, the trust responsibilities of the United States and its agents to the Mdewakanton 'Dakota Sioux bands, was clearly established in the form of rights, remedies, payments and annuities granted to the bands, and to' the individual members of said bands. See Mdewakanton & Wahpakoota Bands of Sioux Indians v. United States, 57 Ct.Cl. 357, 359-61 (1922). App. 19.


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The 1851 and 1858 treaty provisions recognize a "self-executing" right of the individuals, not just the band/tribe, that allows a protected individual within the Mdewakanton band, the clear right recognized by Congress, to pursue individual rights, remedies and privileges, associated with the life, liberty and property as protected by said Treaty. Treaty between the United States and the Mdewakanton and Wahpakoota Bands of Dakota or Sioux Tribe of Indians, AIticles III and IV; March 31, 1859, 12 Stat.1031. Th~ selfexecuting treaty provisions of the Treaties of 1851 and 1858, allowed for any individual Mdewakanton Indian to assert their own property and privacy interests and to use the (later) due process clause of the U.s. Constitution and the treaty rights to preserve and protect said rights. See Kolovrat u. Oregon, 366 U.S. 187 (1961) (recognizing a selfexecuting treaty right for lineal heirs).


D. 1862 SIOUX UPRISING

The following recorded firsthand accounts of the dealings with the United States, document the historical experiences of the Dakota Sioux ,leading up to the forced removal of the Dakota from Minnesota:

Under the treaty of Traverse des Sioux [1851J the Indians had to pay a very large sum of money to the traders for old debts, some of which ran back fifteen years, and many of those who had got the goods were dead and others were not present, and the traders' books had to be received as to the

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amounts, and the money was taken from the tribe to pay them. Big Eagle's Account, Through Dakota Eyes, at 24 (Gary Clayton and Alan R. Woolworth, eds. 1988).

As the summer advanced, there was great trouble among the Sioux - troubles among themselves, troubles with the whites, and one thing and another. The war with the South was going on then, and a great many men had left the state and gone down there to fight. A few weeks before the outbreak the president [Abraham Lincoln] called for many more men, and a great many of the white men of Minnesota and some half-breeds enlisted and went to Fort Snelling to be sent South ....

ld. at 25.

At last Maj. Galbraith went to work about the agencies and recruited a company of soldiers to go South. His men were nearly all half-breeds. This was the company called the Renville Rangers, for they were mostly from Renville county.

ld. at 25-26.

At last the time for the payment came and the Indians came in to the agencies to get their money. But the paymaster did not come, and week after week went by and still he did not come. The payment was to be in gold. Somebody told the Indians that the payment would never be made. The government was in a great war, and gold was scarce,

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Minnesota since May 20, 1886. (See JA0315;JA3510363;JA0323). The McLeod and Henton censuses (together, "1886 census") were initially used to determine who would receive the benefits and in what amounts appropriated under the 1888, 1889, and· 1890 Acts.

The task of determining those beneficiaries of the various Acts did not cease with these two censuses. Henton's duties included purchasing various items on beha]£ of th~ Mdewakanton, including land. Wolfchild I, 62 Fed.Cl. at 528 n.7. Later, James McLaughlin was given the authority to make an additional census. In a letter dated February 20, 1899, McLaughlin was instructed to make a "complete census of the Mdewakanton (sic) band of Sioux Indians in Minnesota .... " APP62. Part of his task was to ensure any Indians who were improperly enrolled as members be prevented from receiving additional payments. Id. McLaughlin completed his task in March of 1899. APP65-67.

It is logical to recognize that the congressional acts concerning the Loyal Mdewakantons subsequent to the 1863 Act, were designed to !mplement the reserved and self-executing treaty rights of Loyal Mdewakanton as recognized in Section 9 of the 1863 Act. As an enabling act, Section 9 of the March 3, 1863 Act is self executing as to individual rights, privileges and remedies for the Loyal Mdewakantons and their heirs.

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The self-executing rights to potentate lineal descendancy of the Mdewakanton Sioux continued to be recognized in the 1868 Treaty of Fort Laramie. The Ft. Laramie Treaty of 1868, included Chief Wabasha III, a direct potentate lineal descendant of Chief Wabasha who signed the 1851 and 1858 treaties as a recognized signatory. The Fort Laramie 'Treaty of 1868 also contained self-executing provisions affording rights to assert individual rights, remedies and privileges' to preserve and protect property, property interests and other personal rights.

Article I of the Fort Laramie Treaty provides:

If bad men among the whites, or among other people subject to the authority of the United States shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the law of the United States, and also reimburse the injured person for the loss sustained (emphasis added).

Id.

The Fort Laramie Treaty of 1868 postdated the 1863 Act, and is still good law, as evidenced in United States v. Sioux Nation of Indians, 1448 U.S. 371 (1980); and Elk v. United States, 87 Fed.Cl. 70 (2009). Since Chief Wabasha III was an invited signatory on behalf of the Mdewakanton/Santee Dakota Sioux, this indicates that Congress continued to recognize the

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Mdewakanton Sioux still held individual rights and interests including potentate lineal descendancy rights. If the Mdewakantons had no existing selfexecuting potentate rights after Congress passed Section 1 of the 1863 Act, Chief Wabasha III would not have been invited to sign the 1868 Treaty of Ft. Laramie on their behalf.

It is clear that the individual self-executing rights of the earlier treaties (1837, 1851 and 1858) were existent and preserved, particularly as to the Loyals, even following the 1863 Act of Congress. The 1868 Ft. Laramie Treaty recognized the important right of potentate lineal descendancy of the Mdewakanton Sioux. The canons of construction must favor the rights of the individual Indian if any ambiguity exists as to treaty or congressional statute interpretation, as here. Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 675-76 (1979); Minnesota v. Mille Lacs Band of Chippewa Indians, 562 U.S. 172, 200 (1999); United States v. Dion, 476 U.S. at 740.

The 1837, 1851 and 1858 Treaties predated the 1934 Indian Reorganization Act, as did, the 1868 Fort Laramie Treaty. The individual, self-executing treaty rights continued to exist through lineage and heirship, and survived the passage of later acts of Congress not explicitly abrogating these rights, including the 1934 IRA, and the later acts leading to the formation of the Shakopee Mdewakanton Dakota Sioux Community, the Lower Sioux Indian Community and

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the Prairie Island Indian Community. See Elk v. United States, 87 Fed.Ct. 70 (2009).


REASONS FOR GRANTING THE PETITION III. TRUST EXISTED SINCE 1863



By recognizing the importance of Section 9 of the March 3, 1863 Act as confirmation of the existence of a trust corpus in land and rights in favor of the "Loyal Mdewakantons and their heirs, forever," the Federal Circuit Court of Appeals acknowledged that the 1863 Act in fact recognizes congressional intent to acknowledge the existence of the trust corpus for the Loyal Mdewakantons, prior to and at the time of the enactment of the Act of February 16, 1863, 12 Stat.654. The Panel emphasized the lower court's finding on the issue. Wolf child I, 62 Fed.CL at 542; Order of March 10, 2009, p.20.2

The fact that the Panel recognizes this important trust finding of the Trial Court reemphasizes the fact that the trust corpus was still in existence in 1863, in 1888, 1889, 1890, 1934, 1969 and again in 1980. The trust cannot be terminated by anything but clear

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2 In pertinent part, the March 3, 1863 Act, Section 8 states, the intent "[T]o set apart of the public lands, not otherwise appropriated, eighty acres in severalty to each individual of the before-narned bands who exerted himself in rescuing whites from the late massacre [by] said Indians. The land so set apart ... shall be an inheritance to said Indians and their heirs, forever. Act of March 3, 1863, 12 Stat. ·at 654." (Emphasis added).


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congressional intent to do so. The trust corpus was never clearly terminated, but was only furthered by appropriation and the statutory enactments following the 1863 Act. (JA00455-459). The trust was intended to exist for all heirs of the Loyal Mdewakantons, forever. The attempts prior to 1863 to fully implement a policy of genocide and extermination of the Mdewakantons from Minnesota, regardless of their participation in the uprising, were halted by Congress in 1863 with the passage of Section 9 of the 1863 Act. The subsequent legislation attempted to expand the unimplemented rights and remedies of the trust, protected for the Loyal Mdewakanton beneficiaries over the years.

Despite the fact the evidentiary record before the Trial Court had not yet been fully developed or completed prior to the interlocutory appeal of the two certified "Trust" questions, the Federal Circuit made critical findings on genuine issues of material fact in dispute in the underlying litigation, to reach the P,~el's March 10, 2009 decision.

This litigation concerns valuable past, present .and future rights and remedies of over 22,000 potential beneficiaries, i.e., the actual lineal descendants of the Loyal Mdewakantons. With its Order of March 10,2009, the Panel, with the single stroke of a pen, has wiped out and destroyed the viable and legitimate claims, remedies and rights of over 22,000 Native·American citizens without a trial. The Panel voted to reverse the decisions of the Federal Court of Claims finding that a trust did in fact exist during

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the time of the "1886 Lands" appropriation in 1888, 1889 and 1890. In reversing that decision, the Panel has made a glaring and critical mistake in determining, without a trial, that the three Minnesota Communities are largely comprised of only lineal descendants. March 10, 2009 Order, p.8.

The Panel ignores the fact that the beneficiaries and/or lineal descendants are a defined class, but not yet fully and factually determined by the Trial Court. Initi,ally, the Panel misstates the legal reference to the beneficiaries/lineal descendants. The true beneficiaries/lineal descendants are descendants of the "Loyal Mdewakantons," and not just the "1886 Mdewakantans." T~s is a critical distinction, in that the Loyal Mdewakantons are defined as trust beneficiaries within Section 9 of the 1863 Act itself Cen-
. abling act). The language of the 1863 Act indicating an " ... inheritance to said Indians and their heirs, forever," is a strong, self-executing declaration of the intent of Congress to benefit the Loyals.

The Panel appears to follow its own distorted view of the recent and present day makeup of the enrollment of the three communities, based on the misinterpretation of statistics. 3 The present day member.ship of the three communities may be made up of a significant majority of true lineal descendants, but the Panel ignored the fact that there are

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3 Many of the Plaintiffs question whether all enrolled members are actual lineal descendants.


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thousands additional, rightfully entitled, true lineal descendants of the Loyal Mdewakantons, that are not recent, past or present enrolled members of the three Minnesota communities, even though they may be as or more entitled to membership enrollment than many members that are or have been enrolled. The Panel's conclusion that 95% of all of the true lineal descendants were enrolled in the present communities is a factual finding on an issue in dispute in this case. This incorrect conclusion explains the Panel's lack of focus within the Opinion on interpreting the trust existence and 146 year agency "trust" treatment, management and handling of these lands and issues. The Panel likely believed that the number of persons likely affected is small rather than in excess of 22,000 living descendants Congress sought to benefit by enacting Section 9 of the 1863 Act.

The Panel ignores the fact that the 1863 Act is an enabling act and that the Appropriations Acts were clearly intended to be used to implement land and property interests, including trust corpus interests, for and on behalf of the lineal descendants of the Loyal Mdewakantons. The Panel never explained how it concluded that Section 9 of the 1863 Act and the Appropriations Act of 1888, 1889 and 1890 are unrelated.

The Appropriation Acts, in this context, must have a trust corpus in which to function as intended. T.hese Acts of 1888, 1889 and 1890 did not create the trust - the trust existed from the 1851 and 1858


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treaties, as preserved in Section 9 of the 1863 Act. Without the Appropriation Acts there would be no clear direction for the trustee. The certified questions from the Trial Court do not ask whether or not a trust was created by the 1888, 1889 or 1890 Acts. The question is "whether a trust was created in connection with and as a consequence of the 18881890 Acts .... " The Appropriation Acts did not themselves create the trust. The enabling 1863 Act, as executed through the 1888-1890 Acts, clearly estab- . lish the existence of a trust. This creates a conflict of holdings within the Federal Circuit Court of Appeals, as stated below.


IV: JUDICIAL ESTOPPEL

"'Judicial estoppel' applies when a party takes a later position that is inconsistent with a former position in the same dispute, on which the party had been successful and had prevailed based on the former position." Bonzel v. Pfizer, Inc., 439 F.3d 1358, 1362 (Fed.Cir.2006)~ This Court has listed three factors which are proper to consider in determining whether judicial estoppel applies: (1) a party's later position must be "clearly inconsistent" With its earlier position; (2) the party succeeded in persuading a court to accept that party's earlier position; and (3) whether "the party seeking to assert an inconsistent position would derive' an unfair advantage or impose an unfair detriment on the opposing party if not estopped." New Hampshire v. Maine) 532 U.S. 742, 750-51 (2001) (citations omitted). Each of these

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factors are present here. In essence, the Federal Circuit Court of Appeals has sanctioned the use of a litigant taking different positions to achieve its intended result. This runs directly afoul of the principles enumerated in New Hampshire.



A.___The Government has argued mutually exclusive provisions: a trust relationship existed; and its current position that one does not.

In this litigation the United States consistently. argued there is not now, and there has never been a trust relationship. However, in the past the United States has argued just the opposite: that is, there was a trust. Despite this conflict, the United States not only was allowed to proceed with its new theory, its new theory was adopted. To apply judicial estoppel, this Court must compare the United States' latter position with its current position. The United States' petition for discretionary appeal in this case asserted that the "Appropriation Acts" did not create a trust relationship between the Plaintiffs and the United States. It further contended Congress t~rminated the trust with legislation enacted in 1980. Petition at 1018. In earlier cases, the government argued the existence of a trust arising under the 1863 Act and/or the Appropriation Acts and that the 1980 Act continued rather than terminated the trust.

First, in Cermak v. United States, U.s. C.O.F.C.
Case No. 01-568, the United States argued that


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1863 Act and/or the Appropriation Acts created a trust. (JA06045).


Second, the United States in Cermak u. Babbitt,
. U.S. Dist. Court (Minn.) Case No. 98-1248, filed a motion in 1999 to dismiss the plaintiffs' claims arguing that a trust arose under either the 1863 Act and/or the Appropriation Acts:


The Department's position regarding Indian Land Certificates was consistent over the years.

See Ex. G, Letter from Acting Assoc. Solicitor, Indian Affairs, to Commissioner of Indian Mfairs at 3 (May [sic] 19, 1974) (describing the interest in Indian Land Certificates to be either a tenancy at will or defeasible interest) (emphasis added).

The government's cited 1974 letter concluded, "[t]he lands are held in trust by the United States with the Secretary possessing a special power of appointment among members of a definite class." (JA00396) (emphasis added).4

In Cermak the United States argued that the Indian Land Certificate scheme was the Department's reasonable interpretation of its trust obligations under the 1863 Act and/or the 1888, 1889 and

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4 The United States earlier used this same argument in support of the Interior Board of Indian Appeals' position of the existence of a trust. "The lands are held in trust by the United States with the Secretary possessing a special power of appoint- . ment among members of a definite class." Brewer v. Acting Deputy Assistant Sec'y, 10 IBIA 110, 119, n.8 (1982).

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1890 Acts. The United States even argued~he Department's position under the 1863 and Appropriation Acts should receive Chevron deference. ld. at 22.5

As to the 1980 Act, the government argued that the rights of Plaintiffs were "grandfathered" and unaffected by the 1980 Act. ld. at 8-9, 16 .

. In its submission dated April 27, 1999, the government went further stating, "[aJs Congress contemplated, the named individual holders of Indian Land Certificates (such as John Cermak) would be safe in their use and possession until their death after the 1980 Act." ld. at 5.6

Third, the United States, in its February 29, 2008 brief in opposition to the Cermaks' appeal in the

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5 Additionally, in order to avoid the reach of the Quiet Title Act, the government conceded the 1886 Lands were trust lands, "If the Plaintiffs wish to claim that the Certificates 64 and 65 were actually allotments issued to John Cermak under the GAA, then these lands would be trust or restricted Indian lands and fall under the QTA's exception." Id.

6 As the United States knows or should know, not all the named individual holders of Indian Land Certificates are dead. For example, one plaintiff, the very much alive Morris Pendleton, received his Certificates in 1979 (Att. E). The United States in this matter failed to account for the "grandfathering" of Morris Pendleton's beneficiary rights - and all others similarly situated - and his concomitant claims for trust mismanagement. The limited purpose of showing the United States' earlier,. inconsistent position on the 1980 Act here is to show the United States argued in 1999 that the 1980 Act continued the trust. This is in direct contradiction to its position now that the 1980 Act terminated the trust.

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United States Court of Appeals for the Federal Circuit, again argued: that a trust arose under the 1863 Act and/or the Appropriation Acts; that the 1980 Act altered, rather than terminated, the legal status of the trust lands; and subsequent assignees were "grandfathered in." The United States argued:

In 1980, however, Congress did enact legislation that altered legal status of the land subject to the Indian Land Certificate program and placed those lands in trust for the Shakopee Mdewakanton Sioux Community as a whole .... Section 3 of the 1980 Act made clear that all existing assignments, issued under the Land Certificate Program, were "grandfathered in" and unaffected by the legislation ....

The Department acquired the lands at issue here under the three aforementioned appropriation acts that authorized the Secretary to buy lands for the benefit of certain Indians who were, or who were once affiliated with, the Mdewakanton Sioux. See Act of December 19, 1980 (stating that "all right, title and interest of the United States in those lands ... which were acquired and are now held by the United States for the use and benefit of certain Mdewakanton Sioux Indians under [appropriation statutes] are hereby declared to hereafter be held by the United States ... for the [Shakopee Community]")
" (emphasis added).

The litigation waged by the Cermaks is not only a prime example of the "applicability of judicial estoppel


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but also the need of this Court to settle the question as to the proper forum for such a claim.


Once the matter made its way to the Federal Circuit, the United States' position that the 1863 Act created a trust did not change. See Cermak u. Babbitt, 234 F.3d 1356, 1358-59 (Fed.Cir.2000), pet. for cert. denied, Cermak v. Norton, 532 U.S. 1021 (2001).

It is respectfully suggested the Court grant the petition to rectify the perverse history of the manner in which these claims were addressed which allows the. government to argue mutually exclusive positions.

B._______The United States was successful in the earlier litigation.

The United States District Court and the United States Court of Federal Claims adopted the United States' earlier positions regarding the existence of a trust corpus to dismiss the Cermaks' claims. The Cermaks' claims started in the United States District Court for Minnesota. See Cermak u. Babbitt, 1999 U.8.Dist. LEXIS 22390, No. 98-1248 (D: Minn. July 12, 1999). The matter was transferred to the United States Court of Federal Claims. Id. The Cermaks appealed to the Eighth Circuit which transferred the appeal to the Federal Circuit. Cermak u. Babbitt, 234 F.3d 1356, 1358 (Fed.Cir.2000).

While Babbitt involved a jurisdictional question, the question hinged on the status of the land. The


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United States argued jurisdiction was lacking because the land was ''held in trust by the United. States for the Community's benefit." Id. at 1359. The Federal Circuit accepted the government's argument and affirmed the transfer. Id. at 1364.

Thereafter, the Court of Federal Claims held the 1980 Act "transferred property that the United States held in trust for the individual Mdewakanton Sioux, to the Sioux Community." (JA06115). The court transferred the case to Minnesota. CJA06120).

Back in Minnesota, Judge Doty agreed with the government that "such lands were held in trust for the use of certain Indians" and cited the IBIA decision in Brewer as support:

The AAD [BIA Acting Area Director] based his decision not to reissue certificates in favor of plaintiffs on the agency's interpretation of the Act of 1863, whereby land was to be set aside for assignment or allotment to certain Indians, and its ruling in Gitchel. (Oermak AR Ex. 9, TOC.) The agency has consistently asserted that certificate holders such as John Cermak did not receive allotments and were not beneficial owners of a possessory interest in allotted trust lands. See Brewer v. Acting Deputy-Indian Affairs, 10 IBIA 110 (1982). Rather, such lands were held in trust for the use of certain Indians. See id. at 116. The Secretary of the Interior did not grant any permanent interest in the lands, pending


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