Federal Government's Opening Brief

[mdenney]

Nos. 2012-5035, -5036, -5043 (consolidated)
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
_____________
SHELDON PETERS WOLFCHILD, ERNIE PETERS LONGWALKER,
SCOTT ADOLPHSON, MORRIS J. PENDLETON,
BARBARA FEEZOR BUTTES, WINIFRED ST. PIERRE FEEZOR,
AUTUMN WEAVER, ARIES BLUESTONE WEAVER,
ELIJAH BLUESTONE WEAVER, RUBY MINKEL, LAVONNE A. SWENSON,
WILLIS SWENSON, AARON SWENSON, BEVERLY M. SCOTT,
LILLIAN WILSON, MONIQUE WILSON, SANDRA COLUMBUS GESHICK,
CHERYL K. LORUSSO, JENNIFER K. LORUSSO,
CASSANDRA SHEVCHUK, JASON SHEVCHUK,
JAMES PAUL WILSON, EVA GRACE WILSON,
BENITA M. JOHNSON, and KEVIN LORUSSO,
Plaintiffs-Cross Appellants,
and
ANITA D. WHIPPLE et al., Descendants of Lucy Trudell,
BONNIE 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.,
Plaintiffs,
(caption continued on following page)
_____________
Appeals from the United States Court of Federal Claims in
Consolidated Case Nos. 03-CV-2684 and 01-CV-0568, Judge Charles F. Lettow
_____________
OPENING BRIEF FOR THE UNITED STATES AS APPELLANT
JOHN L. SMELTZER IGNACIA S. MORENO
AARON AVILA Assistant Attorney General
JODY SCHWARZ Environment & Natural
Attorneys, U.S. Dept. of Justice Resources Division
Environment & Natural U.S. Department of Justice
Resources Division Post Office Box 7415
[phone] Washington, D.C 20044
[e-mail]
and
COURSOLLE DESCENDANTS and ROCQUE AND TAYLOR ESCENDANTS,
Plaintiffs,
and
DEBORAH L. SAUL, LAURA VASSAR, et al., LYDIA FERRIS et al.,
DANIEL M TRUDELL, et al., and ROBERT LEE TAYLOR, et al.,
and DAWN HENRY,
Plaintiffs,
and
VERA A. ROONEY, et al.,
Plaintiff,
and
DANNY LEE MOZAK,
Plaintiff-Cross Appellant,
and
DAWN BURLEY, et al.,
Plaintiff-Cross Appellant,
and
HARLEY ZEPHIER, SR.,
Plaintiff-Cross Appellant,
and
JULIA DUMARCE, et al.,
Plaintiff-Cross Appellant,
and
RAYMOND COURNOYER, SR., et al., JERRY ROBINETTE, et al.,
SANDRA KIMBELL, et al., CHARLENE WANNA, et al.,
and LESLIE LEE FRENCH, et al.,
Plaintiff-Cross Appellants,
and
KRISTINE ABRAHAMSON,
Plaintiff-Cross-Appellant,
v.
UNITED STATES,
Defendant-Appellant.
_____________
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 6
STATEMENT OF THE CASE .................................................................................. 7
A. Nature of the Case ................................................................................. 7
B. Course of Proceedings and Decisions Below........................................ 7
1. Initial Complaint and Ruling on Trust Obligation
(Wolfchild I) ................................................................................ 7
2. Joinder of Additional Plaintiffs by Amendment
and Intervention (Wolfchild II, III, and IV) ............................... 11
3. Interlocutory Appeal (Wolfchild V and VI) ............................... 13
4. Motions to Amend and Partial Summary Judgment
on Use-Restriction Claim (Wolfchild VII) ................................ 13
5. Judgment on Merits Claims and Ruling on
Applicability of Tribal Judgment Act (Wolfchild
VIII and IX) ............................................................................... 16
STATEMENT OF THE FACTS ............................................................................. 19
A. Sioux Rebellion ................................................................................... 19
B. Initial Aid for Loyal Sioux .................................................................. 20
C. 1888-1890 Acts ................................................................................... 22
ii
D. Land Purchases and Assignments under the 1888-1890
Acts ...................................................................................................... 23
E. Development of Tribal Communities .................................................. 24
F. Disbursement of Pre-1980 Land Revenues ......................................... 26
SUMMARY OF ARGUMENT ............................................................................... 28
A. Viability of Use-Restriction Claims .................................................... 28
B. Timeliness of Use-Restriction Claims ................................................ 29
C. Applicability of Tribal Judgment Act ................................................. 30
STANDARD OF REVIEW ..................................................................................... 31
ARGUMENT ........................................................................................................... 32
I. The Use-Restriction Claims Are Not Viable .............................................. .32
A. The Tucker Act and Indian Tucker Act Require a
Separate Source of Law Establishing a Money-
Mandating Duty ................................................................................... 32
B. The 1888-1890 Acts Did Not Mandate Payments to the
Descendants of the 1886 Mdewakantons ............................................ 37
1. Authority to Support Descendants Is Not a Money
Mandate ..................................................................................... 37
2. The Equal Value Proviso Does Not Pertain to
Money Payments, Land Revenues, or the
Descendants .............................................................................. 39
3. There Was no Actionable Breach (If Any) of the
1888-1890 Acts ......................................................................... 45
iii
II. The Use-Restriction Claims Are Barred By The Statute Of
Limitations ..................................................................................................... 46
A. The Claims Are Time-Barred Under 28 U.S.C. § 2501 ...................... 46
B. ITAS Does Not Apply ......................................................................... 47
1. ITAS Only Applies Where There Is a Trust Duty .................... 48
2. ITAS Only Applies Where an Accounting Is
Reasonably Required to Demonstrate a Breach ...................... 51
III. The 1995 Reports Elimination Act Did Not Repeal Any Part of
The Tribal Judgment Act ............................................................................... 54
A. The Tribal Judgment Act Governs All Judgments under
the Indian Tucker Act .......................................................................... 55
B. Congress did Not Repeal Any Part of the Tribal
Judgment Act ....................................................................................... 56
CONCLUSION ........................................................................................................ 61
STATUTORY ADDENDUM: 1888-1890 ACTS ..................................................... I
Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29 ....................................... I
Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93 ........................................ I
Act of Aug. 19, 1890, ch. 807, 26 Stat. 336, 349 ........................................... II
ADDENDUM (Judgments & Opinions on Appeal) ............................................... A1
Published Opinion (Dec. 21, 2010) (96 Fed. Cl. 302)
(“Wolfchild VII”) .......................................................................................... A1
Published Opinion (Aug. 5, 2011) (101 Fed. Cl. 54) (“Wolfchild
VIII”) ........................................................................................................... A52
iv
Judgment (Aug. 5, 2011) ............................................................................ A90
Corrected Judgment (Aug. 22, 2011) ........................................................ A91
Order Denying Motion for Reconsideration (Oct. 25, 2011) 101
Fed. Cl. 92) (“Wolfchild IX”)...................................................................... A92
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
v
TABLE OF AUTHORITIES
CASES
Agwiak v. United States, 347 F.3d 1375 (Fed. Cir. 2003) ....................................... 34
American Indians Residing on Maricopa-Ak Chin Reservation
v. United States, 667 F.2d 980 (Ct. Cl. 1981) .................................................... 49
Barnick v. United States, 591 F.3d 1372 (Fed. Cir. 2010) ...................................... 36
Bell v. United States, 366 U.S. 393 (1961) .............................................................. 35
Bowen v. Massachusetts, 487 U.S. 879 (1988).................................................. 35, 41
Cermak v. Babbitt, 234 F.3d 1356 (Fed. Cir. 2000) ................................................ 12
Creative Compounds, LLC v. Starmark Laboratories,
651 F.3d 1303 (Fed. Cir. 2011) ......................................................................... 31
Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255 (1999) ............................................ 48
Doe v. United States, 100 F.3d 1576 (Fed.Cir.1996) ........................................ 34, 36
Ferreiro v. United States, 501 F.3d 1349 (Fed. Cir. 2007) ..................................... 31
Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) ................................... 33, 34
Gillig v. Nike, Inc., 602 F.3d 1354 (Fed. Cir. 2010) ................................................ 31
Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) .................................................... 59
Hopland Band of Pomo Indians v. United States, 855 F.2d 1573
(Fed.Cir.1988) .................................................................................................... 46
In re Staats, 671 F.3d 1350 (Fed. Cir. 2012) ........................................................... 31
iLOR, LLC v. Google, Inc., 550 F.3d 1067 (Fed. Cir. 2008) ..................................... 4
vi
Loudner v. United States, 108 F.3d 896 (8th Cir. 1997) ......................................... 49
Moose v. United States, 674 F.3d 1277 (9th Cir. 1982) .......................................... 49
National Ass'n of Counties v. Baker, 842 F.2d 369
(D.C. Cir. 1988) ................................................................................................. 36
Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010) ................................................. 60
Office of Personnel Management v. Richmond,
496 U.S. 414 (1990) ..................................................................................... 39, 45
Perri v. United States, 340 F.3d 1337 (Fed.Cir.2003) ....................................... 33, 36
Price v. Panetta, 674 F.3d 1335 (Fed. Cir. 2012).............................................. 34, 35
Samish Indian Nation v. United States, 657 F.3d 1330 (Fed. Cir.
2011) (“Samish V”) ..................................................................................... 35, 36
San Carlos Apache Tribe v. United States, 639 F.3d 1350 (Fed.
Cir. 2011) ........................................................................................................... 46
Shoshone Indian Tribe v. United States, 364 F.3d 1339 (Fed.
Cir. 2004) ............................................................................................... 48, 51-53
TRW Inc. v. Andrews, 534 U.S. 19 (2001) ............................................................... 59
Turtle Mountain Band of Chippewa Indians v. United States,
490 F.2d 935 (Ct. Cl. 1974) ............................................................................... 57
TVA v. Hill, 437 U.S. 153 (1978)............................................................................. 59
Tyson v. United States, 32 F.Supp. 135 (Ct. Cl. 1940) ............................................ 34
United States v. Mitchell, 445 U.S. 535 (1980) (“Mitchell I”) ................................ 33
United States v. Mitchell,463 U.S 206 (1983) (“Mitchell II") ........................... 33, 41
vii
United States v. Navajo Nation, 556 U.S. 287 (2009)
(“Navajo III”) ........................................................................................ 32, 33, 40
United States v. Testan, 424 U.S. 392 (1976) .......................................................... 35
Wolfchild v. United States, 62 Fed. Cl. 521 (2004)
(“Wolfchild I”) ........................................................ 10, 11, 13, 17, 19, 21, 24, 56
Wolfchild v. United States, 68 Fed. Cl. 779 (2005)
(“Wolfchild II”) ................................................................................................. 11
Wolfchild v. United States, 72 Fed. Cl. 511 (2006)
(“Wolfchild III”) ................................................................................................ 12
Wolfchild v. United States, 77 Fed. Cl. 22 (2007)
(“Wolfchild IV”) ..................................................................................... 12, 13, 17
Wolfchild v. United States, 78 Fed. Cl. 472 (2007)
(“Wolfchild V”) .................................................................................................. 13
Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009)
(“Wolfchild VI”) ........................................................................ 2, 7, 8, 13, 19-21,
23-25, 29, 38, 42, 44, 48-49
Wolfchild v. United States, 96 Fed. Cl. 302 (2010)
(“Wolfchild VII”).................................................................. 2-4, 7, 13-14, 19, 21,
24-28, 37-42, 44, 47, 49-51, 53
Wolfchild v. United States, 101 Fed. Cl. 54 (2011)
(“Wolfchild VIII”) ................................................................. 2-5, 9, 14, 16, 56-59
Wolfchild v. United States, 101 Fed. Cl. 92 (2011)
(“Wolfchild IX”) ...................................................................................... 3, 18, 60
Xianli Zhang v. United States,
640 F.3d 1358 (Fed. Cir. 2011) ......................................................................... 59
viii
STATUTES
Act of Feb. 16, 1863, § 9, 12 Stat. 652 .................................................................... 19
Act of Mar. 3, 1863, §§ 3-4, 12 Stat. 819 ................................................................ 20
Act of July 4, 1884, Ch. 180, 23 Stat. 76 ................................................................. 21
Act of Mar. 3, 1885, Ch. 341, 23 Stat. 362 ....................................................... 21, 41
Act of Mar. 15, 1886, Ch. 333, 24 Stat. 29 .............................................................. 21
Act of June 29, 1888, Ch. 503, 25 Stat. 217 ..................................................... 22, 41
Act of Mar. 2, 1889, Ch. 412, 25 Stat 980 ...................................... 22, 38, 40, 41, 42
Act of Aug. 19, 1890, Ch. 807, 26 Stat. 336 ......................................... 23, 40, 41, 42
Pub. L. No. 96-557, § 1, 94 Stat. 3262 (1980) ............................................ 25, 26, 38
Pub. L. No. 78-335, ch. 243, 58 Stat. 274 (1944) .................................................... 26
Federal Reports Elimination and Sunset Act (“Reports Elimination Act”)
31 U.S.C. § 1113, note ....................................................................................... 57
Pub. L. No. 104-66 § 3003(a), 109 Stat. 707, 734
(Dec. 21, 1995) .............................................................................. 17-18, 57-59
Pub. L. No. 106-113, Div. B, § 1000(a)(5) [Title II, § 236]
113 Stat. 1536, 1501 A-302 (Nov. 29, 1999) ................................................. 57
Pub. L. No. 110-314, Title I, § 203(b) 122 Stat. 3040 (Aug. 14, 2008) ............ 57
“Indian Tribal Accounting Statute”
Pub. L. No. 108-108, 117 Stat. 1241, 1263 (Nov. 10, 2003) ............................ 47
Pub. L. No. 109-54, 119 Stat. 499, 519 (Aug. 2, 2005) .................................... 47
Indian Non-Intercourse Act,
25 U.S.C. § 177 .................................................................................................. 14
Indian Reorganization Act
25 U.S.C. §§ 461-79 .......................................................................................... 24
ix
Tribal Judgment Fund Use or Distribution Act (“Tribal Judgment Act”)
Pub. L. No. 93-134, § 2, 87 Stat. 466 (Oct. 19, 1973). ...................................... 58
Pub. L. No. 97-458 § 1, 96 Stat. 2512 (Jan. 12, 1983) ...................................... 58
25 U.S.C. §§ 1401-1407 ................................................................. 5, 6, 9, 17, 55
25 U.S.C. § 1401 ................................................................................................ 55
25 U.S.C. § 1402(a) (3)....................................................... 30, 55, 57, 58, 59, 60
25 U.S.C. § 1403(a), (2)..................................................................................... 55
25 U.S.C. § 1405(a) ........................................................................................... 55
28 U.S.C. § 1291 ........................................................................................................ 4
28 U.S.C. § 1292(b) ................................................................................................... 7
28 U.S.C. § 1491 ........................................................................................... 2, 28, 32
28 U.S.C. § 1505 ........................................................................... 2, 9, 16, 28, 32, 55
28 U.S.C. § 2501 ................................................................................... 10, 15, 46, 47
28 U.S.C. § 2517(a) ................................................................................................. 56
31 U.S.C. § 1304(a) .......................................................................................... 55, 56
31 U.S.C. § 3302(b) ................................................................................................. 45
RULES & REGULATIONS
Fed. R. App. P. 4(a)(1)(B)(i)...................................................................................... 4
Fed. R. App. P. 4(a)(4) ............................................................................................... 4
RCFC 14(b) .............................................................................................................. 11
RCFC 23................................................................................................................... 11
RCFC 54(b) ................................................................................................................ 4
RCFC 58(e) ................................................................................................................ 5
RCFC 59..................................................................................................................... 5
25 C.F.R. § 115.001 ................................................................................................. 50
25 C.F.R. § 115.002 ................................................................................................. 50
1
STATEMENT OF RELATED CASES
An appeal from the present civil action (Court of Federal Claims No. 1:03-
cv-2684) was previously before this Court. Wolfchild et al. v. United States, Fed.
Cir. No. 2008-5018. The panel consisted of Judges Rader, Bryson, and Prost. The
Court issued its decision on March 10, 2009. Wolfchild v. United States, 559 F.3d
1228 (Fed. Cir. 2009) (“Wolfchild VI”) (A225-257). There is one case in the Court
of Federal Claims (“CFC”) that will be directly affected by this Court’s ruling in
the pending appeal. On April 27, 2007, after granting a motion to intervene in the
present case filed by Kermit A. Belgarde pro se, the CFC ordered the cause
severed due to the “somewhat divergent nature” of Mr. Belgarde’s claims and
“case-management considerations.” A562 (Dkt. 456). Mr. Belgarde’s cause
(CFC No. 1:07-cv-00265-CFL) has been stayed pending resolution of the present
appeal. There are no other cases, known to counsel, pending in this Court or any
other court of appeals that will directly affect or be directly affected by this Court’s
decision in the pending appeal.
2
STATEMENT OF JURISDICTION
Plaintiffs and Intervenor-Plaintiffs (collectively, the “Claimants”) are a
collection of individuals who claim to be descendants of the “1886
Mdewakantons,” a group of Indians who received material support under a series
of appropriations enacted in 1888-1890 (the “1888-1890 Acts”). Claimants
invoked the jurisdiction of the Court of Federal Claims (“CFC”) under the Tucker
Act (28 U.S.C. § 1491) and Indian Tucker Act (28 U.S.C. § 1505) to allege, inter
alia, that the United States breached fiduciary obligations in relation to an alleged
trust created under the 1880-1890 Acts. In an interlocutory appeal, this Court held
that the 1888-1890 Acts did not create a trust. Wolfchild VI, 559 F.3d at 1255
(A252). On remand, Claimants moved to amend their complaints to add new
claims, including claims that the United States violated statutory “use restrictions”
in the 1888-1890 Acts when distributing revenues from lands purchased under the
1888-1890 Acts.
In a series of published decisions, the CFC granted leave to add the userestriction
claims and granted summary judgment for Claimants on those claims.
Wolfchild v. United States, 96 Fed. Cl. 302, 351-352 (2010) (“Wolfchild VII”) (A1-
51) (partial summary judgment on liability); Wolfchild v. United States, 101 Fed.
Cl. 54, 91 (2011) (“Wolfchild VIII”) (A52-90) (summary judgment on stipulated
damage amount). In the same decisions, the CFC dismissed or denied amendment
3
as to all other claims. Wolfchild VIII, 101 Fed. Cl. at 76, 91-92 (A74, 87-88); see
also Wolfchild VII, 96 Fed. Cl. at 351 (A50). While expressly retaining
jurisdiction to review a judgment distribution plan to be prepared by the
Department of the Interior under the Indian Tribal Judgment Fund Use or
Distribution Act (“Tribal Judgment Act”), the CFC found “no just reason for
delay” in entering judgment on the use-restriction claims and directed the Clerk,
pursuant to RCFC 54(b) “to enter final judgment against the United States on the
use-restriction claims in the amount of $673,944 . . .” Wolfchild VIII, 101 Fed. Cl.
at 91-92 (A89-90). The Clerk entered such judgment on August 22, 2011. A92
(corrected judgment); see also A91 (judgment with incorrect amount).
The United States moved for reconsideration of the Tribal Judgment Act
ruling and for entry of final judgment on all claims, noting that the CFC had
rejected all other asserted bases for relief. A620 (Dkt. 1100). In a published
opinion issued on October 25, 2011, the CFC denied reconsideration and denied
entry of final judgment as to all claims, citing remaining issues “regarding the
government’s liability for attorneys’ fees” and other costs. Wolfchild, 101 Fed. Cl.
92, 97 (2011) (“Wolfchild IX”) (A93-100).
4
The United States timely filed a notice of appeal on December 27, 2011
(designated No. 2012-5035). 1 A502; Fed. R. App. P. 4(a)(1)(B)(i), (4)(a)(iv).
This Court has jurisdiction over the certified final judgment on the use-restriction
claims under 28 U.S.C. § 1291. Although a “bare recitation” of the “no just reason
for delay” standard under RCFC 54(b) is insufficient, by itself, to render an
incomplete judgment “final” for appeal purposes, this Court will find appellate
jurisdiction when there is a Rule 54(b) certification and it is “apparent from the
record . . . that there is a sound reason to justify departure from the general rule
that all issues decided by the district court should be resolved in a single appeal of
a final judgment.” iLOR, LLC v. Google, Inc., 550 F.3d 1067, 1072 (Fed. Cir.
2008).
Here, although the CFC nominally withheld final judgment in the case as a
whole, the CFC has finally resolved all merits claims. See Wolfchild VIII, 101 Fed.
Cl. at 76, 91-92 (A74, 89-90); Wolfchild VII, 96 Fed. Cl. at 351 (A50). The only
questions remaining before the CFC concern: (1) the eligibility of individual
plaintiffs to share in the judgment, which the CFC rendered under the Indian
1 Two cross-appeals were filed. A504 (appeal by Intervenor-Plaintiffs Julia
DuMarce et al.) (designated No. 2012-5036) ; A508 (appeal by Plaintiffs Sheldon
Peters Wolfchild et al.) (designated No. 2012-5043).
5
Tucker Act on behalf of an Indian group,2 see Wolfchild VIII, 101 Fed. Cl. at 76-91
(A74-89), and (2) claims by the Plaintiffs and Intervenor-Plaintiffs for attorneys’
fees and costs expended to prove eligibility. See Wolfchild VIII, 101 Fed. Cl. at 97
(A98). These are post-judgment issues that ordinarily would not delay the entry of
final judgment. See RCFC 58(e) (“entry of judgment may not be delayed, nor the
time for appeal extended, in order to tax costs or award fees” unless a “timely
motion for attorneys fees” is filed before the filing of a notice of appeal and the
CFC “order that the motion have the same effect under Federal Rule of
Appellate Procedure 4(a)(4) as a timely motion under RCFC 59.”) Accordingly,
there is no just reason to delay appeal from the CFC’s certified final judgment.
2 The CFC determined that the descendants of the 1886 Mdewakantons are entitled
to the judgment amount as an identifiable group of Indians and that the Indian
Tribal Judgment Funds Use or Distribution Act (25 U.S.C. §§ 1401-7) governs the
distribution of the group judgment. See Wolfchild VIII, 101 Fed. Cl. at 76-92
(A74-90).
6
STATEMENT OF THE ISSUES
1. Whether the CFC erred in holding, for purposes of jurisdiction under
the Tucker Act or Indian Tucker Act, that Acts of 1888-1890, which
appropriated funds for the support of the “1886 Mdewakantons,”
established an implied “money-mandating duty” requiring the
Department of the Interior to pay monies derived from lands
purchased under the Acts to descendants of the 1886 Mdewakantons;
2. Whether the CFC erred in holding that the descendants’ claims to the
above monies (which otherwise accrued in 1981 and 1982) are not
time-barred due to the so-called “Indian Trust Accounting Statute”
(“ITAS”), which suspended the statute of limitations only for certain
claims “concerning losses to or mismanagement of trust funds” until
there is an “accounting” of trust assets; and
3. Assuming that the CFC correctly entered judgment under the Indian
Tucker Act in favor of the descendants of the 1886 Mdewakanton as a
group, whether the CFC erred in holding that the Tribal Judgment
Funds Use or Distribution Act (25 U.S.C. §§ 1401-1407) was repealed
in part by the 1995 Reports Elimination Act and therefore no longer
provides the exclusive mechanism for determining the distribution of
judgments to Indian tribes or groups.
7
STATEMENT OF THE CASE
A. Nature of the Case
This is the second appeal in a long-running case involving claims by alleged
descendants of the “1886 Mdewakantons”3 to revenues from lands (the “1886
lands”) that the Department of the Interior purchased for the 1886 Mdewakantons
under appropriations acts of 1888, 1889, and 1890 (the “1888-1890 Acts”). In
their initial complaints, the Claimants sought damages for breach of trust. In an
interlocutory appeal under 28 U.S.C. § 1292(b), this Court held: (1) that the 1888-
1890 Acts did not create a trust in land or monies for the 1886 Mdewakantons or
their descendants, and (2) that any trust was terminated by a 1980 Act declaring the
subject lands to be held in trust for three organized Indian Communities.
Wolfchild VI, 559 F.3d at 1237-1260 (A234-257).
On remand, the Claimants sought leave to amend their complaints to bring
new claims, inter alia, on an issue this Court acknowledged in a footnote but did
not resolve in Wolfchild VI. After 1950 and before the 1980 Act, the Department
3The term “1886 Mdewakantons” refers to “the Mdewakantons who were
statutorily eligible for benefits under the [1888-1890] Acts.” Wolfchild VI, 559
F.3d at 1234 (A231). The CFC described the same group as the “loyal
Mdewakantons.” See, e.g., Wolfchild VII, 96 Fed. Cl. at 311 (A10); see also pp.
19-23, infra (history of the 1888-1890 Acts).
8
of the Interior (“DOI”) derived approximately $60,000 in real property revenues by
allowing non- Indians to lease or use tracts that were part of the lands purchased
under the 1888-1890 Acts. In 1981 and 1982, DOI distributed these funds to the
organized Communities. In Wolfchild VI, this Court noted the parties’ dispute
over the “lawful[ness]” of this distribution, but determined that the issue did “not
affect analysis of the two certified questions.” Id. at 1259, n. 14 (A257).
Accordingly, this Court left the issue “to be addressed, to the extent necessary, in
further proceedings before the [CFC].” Id.
Relying on this footnote, the Claimants moved to add claims that the
disbursement of the land revenues was in violation of statutory “use restrictions” in
the 1888-1890 Acts, notwithstanding the absence of any trust obligation to the
descendants. The CFC permitted the amendments and granted summary judgment
on the use-restriction claims in the amount of $673,944; i.e., the stipulated value of
the subject land revenues as of January 2011. In so doing, the CFC determined:
(1) that the 1888-1890 Acts created a “money-mandating duty” in favor of the
descendants of the 1886 Mdewakantons, despite the absence of any statutory terms
addressing the revenues or descendants; and (2) that the Claimants’ efforts to
recover the land revenues (which were distributed in 1981 and 1982) were not
barred by the statute of limitations, given the so-called “Indian Trust Accounting
Statute” or “ITAS,” a tolling provision that prevents the statute of limitations from
9
beginning to run against certain claims for the mismanagement of “trust funds”
until there is an “accounting.” As explained infra (pp. 32-54), both rulings are in
error and at odds with this Court’s holding in Wolfchild VI.
Assuming, arguendo, that the CFC’s judgment on the use-restriction claims
are affirmed, the CFC’s ruling on the Indian Tribal Judgment Use or Distribution
Act (25 U.S.C. §§ 1401-1407) (“Tribal Judgment Act”) also requires review. The
CFC invoked its jurisdiction under the Indian Tucker Act (28 U.S.C. § 1505) to
render judgment in favor of an “identifiable group of Indians,” viz., the
descendants of the 1886 Mdewakanton. Given the nature of the judgment, the CFC
determined that the Tribal Judgment Act governs its distribution, including the
determination as to whether the named plaintiffs are descendants of the 1886
Mdewakantons and thus eligible to share in the damage award. Wolfchild VIII,
101 Fed. Cl. at 78-91 (A76-89). The Tribal Judgment Act directs DOI to prepare a
use or distribution plan exclusively for Congressional review. Nonetheless, the
CFC directed DOI to prepare a distribution plan subject to the court’s review –
instead of Congress – on the theory that the Federal Reports Elimination and
Sunset Act of 1995 repealed the Congressional-review provision of the Tribal
Judgment Act. Id. For reasons explained infra (pp. 54-60), there is no basis for
implying such repeal.
10
B. Course of Proceedings and Disposition Below
1. Initial Complaint and Ruling on Trust Obligation (Wolfchild I)
Plaintiff Sheldon Peters Wolfchild and others initiated this action in
November 2003 “on behalf of themselves and all other descendants of persons
listed on May 20, 1886 U.S. Mdewakanton census.” Wolfchild v. United States,
62 Fed. Cl. 521, 533-34 (2004) (“Wolfchild I”) (A101-136). The Plaintiffs alleged
two causes of action: (1) that, beginning in 1980 and thereafter, the United States
breached a fiduciary obligation to the 1886 Mdewakantons and their heirs with
respect to real property and other assets derived from the Acts of 1888-1890; and
(2) that the 1888-1890 Acts were part of the consideration of an implied contract
with the 1886 Mdewakantons (alleged promise to provide material support in
exchange for the severing of tribal relations), which the United States also
breached. Id. at 533-34, 546 (A113-14, 126).
The United States moved to dismiss arguing, inter alia, (1) that the Plaintiffs
failed to state a claim under the Tucker Act or Indian Tucker Act; and (2) that the
stated claims were barred by the six-year statute of limitations (28 U.S.C. § 2501).
Id. at 534 (A114). In a published opinion issued in October 2004, the CFC held
that the Plaintiffs had stated a viable claim for breach of trust and that such claim
was not barred by the statute of limitations because, among other things, the socalled
Indian Trust Accounting Statute (“ITAS”) – a tolling provision that has been
11
included in Department of Interior appropriations acts since 1990 – “resuscitated”
and preserved the claim. Id. at 540-548 (A120-128); see also Wolfchild v. United
States, 68 Fed. Cl. 779, 784-795 (2005) (“Wolfchild II) (A137-163). As for the
alleged breach of contract, the CFC dismissed the claim as time-barred, holding
that any contract was repudiated in the early 1980s and that the ITAS did not apply
to contract claims. Wolfchild I, 62 Fed. Cl. at 546-549 (A126-129).
2. Joinder of Additional Plaintiffs by Amendment and Intervention
(Wolfchild II, III, and IV)
After holding that descendants of the 1886 Mdewakantons had a viable
breach-of-trust claim, the CFC directed the Plaintiffs to file a motion for class
certification under RCFC 23 or to propose a plan, per RCFC 14(b), to notify other
descendants of the 1886 Mdewakantons, for purposes of allowing their joinder as
interested parties. Wolfchild I, 62 Fed. Cl. at 555-56 (A135-36). The Wolfchild
Plaintiffs elected to pursue notification-and-joinder proceedings. In a 2005
decision, the CFC approved a form of notice, directed the Secretary of the Interior
to disclose the names of all known descendants of the 1886 Mdewakanton, and
authorized notification at the Plaintiffs’ expense. Wolfchild II, 68 Fed. Cl. at 801-
05 (A159-163). In two subsequent opinions, the CFC granted motions by the
Wolfchild Plaintiffs to amend their complaint to add thousands of additional
plaintiffs, and granted motions by thousands of others (in several groupings) to
12
intervene as plaintiffs. Wolfchild v. United States, 72 Fed. Cl. 511 (2006)
(“Wolfchild III”) (A164-194); Wolfchild v. United States, 77 Fed. Cl. 22 (2007)
(“Wolfchild IV”) (A195-210). As a result, the number of plaintiffs grew to over
20,000, consisting of 7,588 plaintiffs under the Wolfchild complaint (as amended)
and 13,286 intervenor-plaintiffs under complaints in intervention by 40 different
groups.4 Wolfchild IV, 77 Fed. Cl. at 34-35 (A207-8). All Claimants allege to be
descendants of Indians eligible to receive benefits under the 1888-1890 Acts.
Plaintiffs and “Group A” Intervenor-Plaintiffs claim an ancestor among the 264
individuals identified on censuses of 1886 and 1889. See p. 21, infra. “Group B”
Intervenor-Plaintiffs claim entitlement via some other source. Wolfchild IV, 77
4 In Wolfchild III, the CFC also ordered proceedings in Cermak v. United States
(No. 01-568L), consolidated with Wolfchild (No. 03-2684L). Stanley F. Cermak
and Raymond Cermak, Sr. (the “Cermaks”) initiated their action in the District of
Minnesota in 1998, alleging a taking and breach of legal duty with respect to a
tract of land that was purchased under the 1888-1890 Acts and assigned to John
Cermak, ancestor to the Cermaks. Wolfchild III, 72 Fed. Cl. at 521-522 (A174-75).
In a series of orders, including orders on appeal by this Court and the Eight Circuit,
the case was transferred to the CFC in 2001, A624 (Dkt. 1), transferred back to the
District of Minnesota in 2002, A625 (Dkt. 24), and retransferred to the CFC in
2006. A626 (Dkt. 26); see also Wolfchild III, 72 Fed. Cl. 522-23 (A175-76)
(citing, inter alia, Cermak v. Babbitt, 234 F.3d 1356 (Fed. Cir. 2000)). In
Wolfchild III, the CFC determined that the Cermaks’ original claims had been
properly dismissed but that a reformulated claim for trust mismanagement – akin
to the claims in Wolfchild – could proceed. Id. at 521-26 (A174-79). Given the
similarity of claims and motions by the Cermaks to intervene in Wolfchild, the
CFC directed consolidation. Id. at 526-527 (A179-80).
13
Fed. Cl. at 34-35 (A207-8); Wolfchild v. United States, 78 Fed. Cl. 472, 476 (2007)
(“Wolfchild V”) (A211-224).
3. Interlocutory Appeal (Wolfchild V and VI)
In 2007, the CFC granted the United States’ motion to certify, for
interlocutory appeal, two issues first addressed in Wolfchild I, namely: (1) whether
the 1888-1890 Acts created a trust in favor of the 1886 Mdewakantons and their
descendants; and (2) whether the 1980 Act terminated any such trust. Wolfchild V,
78 Fed. Cl. at 485 (A224). As noted supra, this Court granted interlocutory appeal
and reversed, holding that the 1888-1890 Acts did not establish a trust obligation
with respect to the 1886 lands and that the 1980 Act terminated any such trust that
might have been created. Wolfchild VI, 559 F.3d at 1255, 1260 (A252, 257).
However, in so doing, this Court declined to reach a dispute over pre-1980
revenues derived from the 1886 lands. Id. at 1259-60, n. 14 (A256-57).
4. Motions to Amend and Partial Summary Judgment on Use-
Restriction Claim (Wolfchild VII)
On remand, the Claimants (Plaintiffs and Intervenor-Plaintiffs) sought leave
to amend their complaints to add claims: (1) that the United States violated “use
restrictions” within the 1888-1890 Acts when disbursing the pre-1980 land
revenues, notwithstanding the absence of a statutory trust, see Wolfchild VII, 96
Fed. Cl. at 311, 326 (A10, 25); A383-405, A466-488; (2) that the United States
14
violated the Indian Non-Intercourse Act (25 U.S.C. § 177) in its historical dealings
with the 1886 Mdewakantons; see Wolfchild VIII, 101 Fed. Cl. at 65 (A63); A493-
499; and (3) that the United States breached an alleged obligation to provide lands
under Acts of 1863. See Wolfchild VIII, 101 Fed. Cl. at 69-70 (A67-68); A407-
409; A450-455; A489-493; see also pp. 19-20, infra (describing 1863 Acts). One
intervenor group (the “Robertson-Vadnais Group”) also sought to add a takings
claim based on the alleged failure to provide land. Wolfchild VIII, 101 Fed. Cl. at
73 (A71); A410-422. The United States opposed the motions, observing that the
claims were not viable and/or barred by the statute of limitations.
In Wolfchild VII (decided December 21, 2010), the CFC granted Claimants’
motion to add the use-restriction claims and granted partial summary judgment on
those claims. Id. at 327-352 (A26-51). The CFC reasoned that revenues derived
on the 1886 lands before 1980 – excluding certain credits that Congress provided
in exchange for converting Wabasha County lands to a wildlife refuge5 – were
subject to the same statutory use restrictions that governed the 1888-1890
appropriations, including the requirement that the appropriations be used for the
“support” of the 1886 Mdewakantons or their families. Id. at 336-350 (A35-49);
see also pp. 22-23, infra (describing statutes). The CFC further determined that
5 See n. 8, infra.
15
statutory terms directing the Secretary to spend the 1888-1890 appropriations, to
the extent practicable, equally among the 1886 Mdewakantons created a presentday
money-mandating duty compelling the Secretary to distribute land revenues
equally among all descendants of the 1886 Mdewakantons. Id. at 337, 345-348
(A36, 44-47). Because DOI had disbursed the land revenues to the three Indian
Communities and not to the descendants of the 1886 Mdewakantons individually
or as a group (see pp. 26-28, infra), the CFC reasoned that the disbursements were
unlawful and that the descendants were entitled to damages in the amount of the
unlawfully disbursed funds. Id. at 351 (A50).
As to the statute of limitations (28 U.S.C. § 2501), the CFC held that the
use-restriction claims were not barred – even though the land revenues had been
disbursed in 1981 and 1982 – because, prior to disbursement, the Secretary had
held the land revenues in trust accounts. Id. at 332-334 (A31-33). The CFC
reasoned that the disbursement of trust accounts to the “wrong beneficiaries”
constituted the “mismanagement of trust funds” for purposes of the Indian Trust
Accounting Statute, a tolling provision first enacted in 1990, which states that the
limitations period shall not commence to run on specified claims of trust
management, until the Secretary provides an accounting of the trust assets. Id. at
335 (A34).
16
5. Judgment on Merits Claims and Ruling on Applicability of
Tribal Judgment Act (Wolfchild VIII and IX).
The parties subsequently stipulated that the value of the alleged wrongfully
distributed land revenues, as of January 2011, was $673,944. Wolfchild VIII, 101
Fed. Cl. at 63 (A61). This left to be resolved: (a) the issue of Claimant eligibility,
i.e., the determination whether each individually-named Plaintiff and Intervenor
Plaintiff was a descendant of an 1886 Mdewakanton and thus eligible to share in
the CFC’s judgment on the use-restriction claim, and (b) the Claimants’ motions to
add additional claims.
In Wolfchild VIII, the CFC denied the remaining motions to amend, holding:
(1) that the Claimants were not a tribe and thus lacked standing to bring a cause of
action under the Indian Non-Intercourse Act; (2) that the 1863 Acts did not create a
fiduciary obligation or other money-mandating duty in favor of the 1886
Mdewakantons and their descendants; and (3) that the takings claim (by the
Robertson-Vandais group) was time-barred. 101 Fed. Cl. at 76 (A74).
In the same opinion, the CFC also determined that it need not reach the issue
of Claimant eligibility. The CFC had already determined that the descendants of
the 1886 Mdewakanton were an “identifiable group of American Indians” within
the meaning of the Indian Tucker Act and that the Plaintiffs had brought their
claims “specifically and solely as members of [this] group.” Id. at 79 (A77)
17
(quoting Wolfchild I, 62 Fed. Cl. at 540). After the CFC granted partial summary
judgment to this group on the use-restriction claims, the United States asserted that
the use and distribution of the judgment amount would be governed by the Tribal
Judgment Act (25 U.S.C. §§ 1401-1407). That Act provides that the “use or
distribution of funds appropriated in satisfaction of a judgment . . . in favor of any
Indian tribe, band, group, pueblo, or community” is to be made pursuant to a
distribution plan developed by the Secretary of the Interior, 25 U.S.C. §§ 1401,
1403, which must first be submitted to Congress for review and potential
disapproval. Id., § 1402(a). The CFC agreed that the Tribal Judgment Act applied
and that the “court ha[d] no direct role in specifying the individual persons entitled
to share in a judgment in favor of the [1886] Mdewakantons as an identifiable
group of Indians.” Wolfchild VIII, 101 Fed. Cl. at 91 (A89). Accordingly, the
court ordered the entry of final judgment on the use-restriction claims. 6 Id.
The CFC determined, however, that the United States had raised the
applicability of the Tribal Judgment Act belatedly, after requiring proof from the
Claimants on eligibility issues. Id. at 87-89 (A85-87). The CFC further held that
6 Although the form of judgment was entered in favor of the “plaintiffs and
plaintiff-intervenors,” A90-91, the CFC described the judgment as being “in favor
of the descendants of the [1886] Mdewakantons as an identifiable group of
Indians.” Wolfchild VIII, 101 Fed. Cl. at 91 (A89); see also Wolfchild IV, 77 Fed.
Cl. at 24, n. 1 (A197) (describing “collective action” under the Indian Tucker Act).
18
the Federal Reports Elimination and Sunset Act of 1995, Pub. L. No 104-66,
§ 3003(a), 109 Stat. 707 (“Reports Elimination Act”), repealed the Congressional
reporting provisions of the Tribal Judgment Act. Id. at 90 (A88). Given the
presumed unavailability of Congressional review, the CFC directed the Secretary
to prepare a distribution plan under Tribal Judgment Act subject to the court’s
review. Id. at 91-92 (A89-90). And the CFC directed the Secretary to “provide
reimbursement” to Claimants for their costs in preparing and submitting
genealogies to demonstrate their eligibility. Id. at 92 (A90).
The United States moved for reconsideration of the Tribal Judgment Act
decision, noting that the Reports Elimination Act only repealed specified
provisions requiring “annual, semiannual, or regular periodic” reports. See
Wolfchild IX, 101 Fed. Cl. at 96 (A97). The CFC declined reconsideration,
holding that because the Tribal Judgment Act required “timely” submission of
distribution plans, the reporting requirement was not “ad hoc” and qualified as
“regular periodic.” Id.
19
STATEMENT OF THE FACTS
The prior published opinions of the CFC and this Court exhaustively set out
the facts in this case, which are not in dispute. See Wolfchild VI, 559 F.3d at 1232-
36 (A229-233); Wolfchild VII, 96 Fed. Cl. at 311-324 (A10-23); Wolfchild I, 62
Fed. Cl. at 526-535 (A106-115). The following is a summary of pertinent facts
from the published opinions.
A. Sioux Rebellion
In a series of treaties in the mid 1800s, the Minnesota Sioux – comprised of
the Mdewakanton, Wahpakoota, Sisseton, and Wahpeton Bands – ceded their
aboriginal territory to the United States in exchange for a reservation in south
central Minnesota and financial promises. Wolfchild VII, 96 Fed. Cl. at 312-313
(A11-12). In 1862, incited by perceived treaty violations, the Sioux rebelled,
killing over 500 settlers. Id. at 313 (A12). In 1863, after the uprising was quelled,
Congress annulled the treaties and directed the removal of the Sioux to western
territories. Id.
In so doing, Congress recognized that some individual Sioux had remained
loyal to the United States and had come to the aid of Settlers. See Act of Feb. 16,
1863, § 9, 12 Stat. 652, 654. Accordingly, Congress authorized the Secretary of
the Interior to set apart, for any individual Sioux who “exerted himself in rescuing
the whites . . . ,” up to 80 acres from the “public lands” to be held for said Indian
20
and his heirs “forever.” Act of Feb. 16, 1863, § 9, 12 Stat. 652, 654. Shortly
thereafter, as part of legislation providing for the disposition of the former
reservation lands (via survey and settlement), Congress provided “[t]hat it shall be
lawful for the Secretary to locate any meritorious individual [Sioux] who exerted
himself to the lives of whites . . . upon said lands . . .” Act of Mar. 3, 1863, §§ 3-4,
12 Stat. 819. However, area settlers who were opposed to any continued presence
of the Sioux effectively blocked the Secretary from exercising this authority.
Wolfchild VI, 559 F.3d at 1232 (A229). Consequently, individual Sioux who had
severed tribal relations and remained in Minnesota were left homeless and
destitute. Id.
B. Initial Aid for Loyal Sioux
In 1865, citing the dire condition of the Indians who “did aid in saving many
white men, women and children from being massacred,” Congress appropriated
$7,500 to be used for an “examination” of “all the facts pertaining to [their] action”
during the rebellion and to “make provisions for their welfare.” Act of Feb. 9,
1865, Ch. 29. Congress provided no further support, however, for nearly two
decades. See Wolfchild VI, 559 F.3d at 1233 (A230). During this period, many of
the loyal Sioux left the State. Id.
In 1884, as part of omnibus acts appropriating funds to numerous Indian
tribes and entities, Congress began a series of appropriations for the “support” of
21
the “full-blood Indians” who had remained in or had returned to Minnesota and
“belong[ed] to the Medewakanton [sic] band.” See Act of May 15, 1886, Ch. 333,
24 Stat. 29, 39-40; see also Act of Mar. 3, 1885, Ch. 341, 23 Stat. 362, 375; Act of
July 4, 1884, Ch. 180, 23 Stat. 76, 87. Congress first appropriated $10,000 “for the
purchase of stock” and “other necessary articles.” Act of July 4, 1884, Ch. 180, 23
Stat. 76, 87. In 1885, Congress enacted legislation stating that the 1884 funds
could be expended on “agricultural implements, lands, or cash.” Act of Mar. 3,
1885, Ch. 341, 23 Stat. 362, 375. In 1886, Congress appropriated an additional
$10,000 for the purchase of “agricultural implements, cattle, [or] lands.” Act of
May 15, 1886, Ch. 333, 24 Stat. 29, 39-40. With such funds, DOI purchased
several parcels of land, which DOI granted to individual Mdewakantons in fee.
Wolfchild VI, 559 F.3d at 1233 (A230).
Also in 1886, DOI conducted a census of full-blood Mdewakantons then
residing in Minnesota. Wolfchild VII, 96 Fed. Cl. at 316 (A15). DOI conducted a
supplemental census in 1889. Id. Through these censuses, DOI identified a total
of 264 individuals. Wolfchild VI, 559 F.3d at 1243 (A240). DOI used these
censuses to distribute benefits under the 1888-1890 Acts. Wolfchild VI, 559 F.3d
at 1234, 1243 (A231, 240); see also Wolfchild I, 62 Fed. Cl. at 528 (A108).
22
C. 1888-1890 Acts7
In 1888, Congress enacted the first of the three appropriations acts at issue in
the present case. Similar to the earlier appropriations acts (supra), the 1888 Act
appropriated funds for the “support” of the “full-blood Indians” who “belong[ed]
to the Medawakanton [sic] band of Sioux Indians,” but who had “severed their
tribal relations.” Act of June 29, 1888, Ch. 503, 25 Stat. 217, 228-29. The 1888
Act further defined the list of eligible beneficiaries as those former Mdewakantons
who had “resided in [Minnesota] since the twentieth day of May, A.D. eighteen
hundred and eighty-six.” Id. The Act appropriated $20,000 and directed the
Secretary to expend these funds “as in his judgment he may deem best” for
“agricultural implements, cattle, horses, and lands.” Id.
In 1889, Congress appropriated an additional $12,000 for the “support” of a
slightly enlarged class of former “full-blood” Mdewakantons; viz., those who had
resided in Minnesota since May 20, 1886, or “who were then engaged in removing
to said state and have since resided therein.” Act of Mar. 2, 1889, Ch. 412, 25 Stat.
980, 992. The 1889 Act directed the Secretary to expend these funds and
remaining appropriations from the 1888 Act upon “these Indians or family
thereof,” and further directed, “as far as practicable,” that all eligible Indians
7 The relevant text of these Acts is set out in the statutory addendum to this brief.
23
should receive, “an equal amount in value of [the appropriated funds],” that “lands
shall be purchased in such locality as each Indian desires,” and that “none of said
Indians will be required to remove from where he now resides . . . against his will.”
Act of Mar. 2, 1889, Ch. 412, 25 Stat 992-993.
In 1890, Congress appropriated an additional $8,000 to be expended under
the same terms and provisos as included in the 1889 Act, with two new variations:
the 1990 Act expanded the class of eligible beneficiaries to “full and mixed blood”
Mdewakantons and provided that $2,000 of the appropriated funds “shall be
expended for the Prairie Island settlement of Indians in Goodhue County.” Act of
Aug. 19, 1890, Ch. 807, 26 Stat. 336, 349.
D. Land Purchases and Assignments under the 1888-1890 Acts
As noted (supra), when purchasing lands under the 1884-1886 Acts, DOI
granted title to individual Mdewakantons in fee. Those grants proved
unsuccessful, as most recipients promptly sold, abandoned, or encumbered the
properties. Wolfchild VI, 559 F.3d at 1233 (A230). Accordingly, DOI changed its
practice when purchasing lands for the 1886 Mdewakantons under the 1888-1890
Acts. Specifically, DOI retained title (in the name of the United States) and
assigned non-inheritable rights of possession to eligible Mdewakanton via “Indian
Land Certificates.” Wolfchild VI, 559 F.3d at 1234, 1244-45 (A231, 241-42). The
certificates granted the rights of “exclusive use and benefit” so long as the named
24
“allottee or his or her heirs occupy and use” the land. Id. at 1245. However, DOI
retained and exercised authority to reassign the land to any other 1886
Mdewakanton or lineal descendant whenever the conditions of an assignment were
no longer met. Id. Among other things, when an assignee died, DOI did not
divide tracts among all heirs, but reassigned the “vacant” tract to the Mdewakanton
“most equitably entitled to have . . . temporary use and occupancy.” Id. at 1247
(A244) (quoting DOI memorandum).
DOI acquired tracts of lands under the 1888-1890 Acts (the “1886 lands”) in
four areas: (1) 260 acres in Scott County (“Shakopee” lands); (2) 575 acres in
Redwood County (“Lower Sioux” lands); (3) 120 acres in Goodhue County
(“Prairie Island” lands); and (4) 110 acres in Wabasha County. Wolfchild VII, 86
Fed. Cl. at 318-319 (A17-18). Three separate Indian communities developed
around the lands purchased in Scott, Redwood, and Goodhue Counties. Wolfchild
VI, 559 F.3d at 1234-35 (A231-32). DOI subsequently took additional lands into
trust for these Communities. Wolfchild VI, 559 F.3d at 1235 (A232); Wolfchild I,
62 Fed. Cl. 530 (A110). The 1886 lands in Wabasha County were transferred to
conservation use in 1944. Wolfchild VII, 96 Fed. Cl. at 319-320 (A18-19).
E. Development of Tribal Communities
In 1934, Congress enacted the Indian Reorganization Act, which permitted
Indian groups “residing on the same reservation” to organize for their common
25
welfare and to receive official recognition from the United States. See generally
25 U.S.C. §§ 461-79 (Reorganization Act as amended). Pursuant to this Act, the
three Indian communities that developed around the 1886 lands (as expanded by
trust purchases) organized as three separate tribal entities: (1) the Shakopee
Mdewakanton Sioux Community, (2) the Lower Sioux Indian Community; and
(3) the Prairie Island Indian Community. Wolfchild VI, 559 F.3d at 1235 (A232);
Wolfchild VII, 96 Fed. Cl. at 319 (A18).
Pursuant to federal law, all three Communities established their own tribal
governments and rules of membership and enrolled members who are not lineal
descendants of the 1886 Mdewakanton. Id. This left each of the Communities
with two classes of members: those who were lineal descendants of the 1886
Mdewakanton and could claim rights to the 1886 lands (as administered by DOI)
and those who could not. Wolfchild VII, 96 Fed. Cl. at 319, 322-23 (A18, 21-22).
Further, there are many lineal descendants of the 1886 Mdewakantons who never
resided on the 1886 lands or enrolled in any of the Communities. Id. Because
DOI held the 1886 lands for the potentially use of these lineal descendants (as a
class) and not as trust lands for the three Communities, the Communities lacked
corporate interests in the 1886 lands. Id. at 319, 323 (A18, 21). This created a
significant obstacle to land-use planning and community development. Id.
25

[mdenney]

In 1980, to resolve these problems, Congress enacted legislation declaring
that all ¡§right, title, and interest of the United States¡¨ in the 1886 lands in Scott,
Redwood, and Goodhue Counties would ¡§[t]hereafter be held by the United States
. . . in trust . . .¡¨ for the Shakopee, Lower Sioux, and Prairies Island Communities
respectively. Act of Dec. 19, 1980, Pub. L. No. 96-557, ¡± 1, 94 Stat. 3262 (¡§1980
Act¡¨). The Act required the Secretary of the Interior to publish notice of the ¡§lands
transferred¡¨ by virtue of the Act, id., ¡± 2, and contained a savings clause stating
that ¡§[n]othing in this Act shall (1) alter, or require the alteration, of any rights
under any contract, lease, or assignment entered into or issued prior to enactment
of this Act, or (2) restrict the authorities of the Secretary of the Interior under or
with respect to any such contract, lease, or assignment.¡¨ Id., ¡± 3.
F. Disbursement of Pre-1980 Land Revenues
Before the 1980 Act, DOI derived funds from the 1886 lands in two ways.
First, in 1944, Congress enacted legislation to transfer the Wabasha County tract
(110 acres) ¡V which was then no longer in use by Indians ¡V to a wildlife refuge.
Wolfchild VII, 96 Fed. Cl. at 319-320 (A18-19) (citing Pub. L. No. 78-335, ch. 243,
58 Stat. 274 (1944)). To ¡§carry out¡¨ the transfer, Congress declared that the sum
of $1,261.20 would be ¡§made available . . . to the credit of the Mdewakanton and
Wahpakoota Bands of Sioux Indians,¡¨ ¡§subject to disbursement under the
[Secretary¡¦s] direction for the benefit of [those] bands,¡¨ with the further instruction
27
that the Secretary could ¡§set apart and disburse¡¨ a ¡§proportionate share¡¨ to ¡§groups
of such Indians organized as tribes¡¨ under the Reorganization Act ¡§based on the
number of Indians so organized.¡¨ 8 Id. (A19).
Second, sometime after 1950, DOI developed a policy of leasing or licensing
1886 lands for fair market value, where there were no eligible 1886 Mdewakantons
available for (and interested in) assignment. Wolfchild VII, 96 Fed. Cl. at 320-21
(A19-20). In some cases, DOI directed license proceeds to be paid directly to a
third-party Indian organization (e.g., an Indian School). Id. at 320 (A19). In other
cases, DOI collected license fees and rents and deposited them into U.S. Treasury
accounts. Id.
In 1975, DOI prepared a report of all funds that had been derived from the
1886 lands and held in Treasury accounts. Id. at 321 (A20); A266-272. The 1975
report identified a total of $61,725.22 ¡V inclusive of the Wabasha transfer fund
(supra) ¡V in three ¡§Proceeds of Labor¡¨ Treasury accounts and four ¡§Individual
Indian Money¡¨ accounts. Id. Thereafter, DOI officials met with tribal leaders to
develop a plan for disbursing the proceeds among the three Communities.
8 Because the 1944 Act specified disbursement to the Mdewakanton and
Wahpakoota bands and authorized the Secretary to disburse the funds to organized
groups, the CFC held that the Act ¡§terminated¡¨ any duty to the 1886
Mdewakantons and their descendants, per se. Wolfchild VII, 96 Fed. Cl. at 346
(A45).
28
Wolfchild VII, 96 Fed. Cl. at 321 (A20). In 1981 and 1982, following enactment of
the 1980 Act (pp. 25-26, supra), DOI disbursed the funds (which had grown to
over $130,000) to the Communities in accordance with an agreed disbursement
plan. Id.; see also A299-307 (tribal agreement). The CFC ultimately determined
that these disbursements were unlawful on the theory that the 1888-1890 Acts
mandated the payment of the funds to the 1886 Mdewakantons. Wolfchild VII, 96
Fed. Cl. at 351 (A50).
SUMMARY OF ARGUMENT
A. Viability of Use-Restriction Claims
The CFC lacked jurisdiction over and erred in granting judgment upon the
use-restriction claims, which are not viable claims under the Tucker Act (28 U.S.C.
¡± 1491) or Indian Tucker Act (28 U.S.C. ¡± 1505). To state a claim under either
Act, a plaintiff must demonstrate: (1) a specific legal duty on the part of a federal
official, and (2) that the statute or other source of law imposing such duty is
¡§money-mandating,¡¨ i.e., fairly can be construed as mandating money damages for
a breach of the relevant duty. Here, the Claimants failed to show that the 1888-
1890 Acts imposed a specific duty with respect to revenues derived from 1886
lands or that any duties imposed under those acts are money mandating.
The only ¡§use restrictions¡¨ in the 1888-1890 Acts are restrictions on and
directives for the expenditure of the originally-appropriated funds. While statutes
29
that mandate cash payments to individuals ¡V e.g., as compensation for past injuries
or labors ¡V have been found to be money-mandating, the 1888-1890 Acts did not
mandate or even authorize cash payments from the appropriations. Instead they
directed DOI to make expenditures for the 1886 Mdewakantons on items to be
selected at DOI¡¦s discretion. The CFC cited no precedent for inferring a cause of
action for damages from the breach of such a duty.
Moreover, the specific ¡§use restrictions¡¨ imposed on the 1888-1890
appropriations cannot reasonably be applied to the later-derived land revenues.
Rather, because the 1888-1890 Acts are utterly silent on the question of land
revenues and their use, the 1888-1890 Acts either left DOI complete discretion to
disburse land revenues in accordance with the general purposes of the Acts or with
no discretion to disburse the funds whatsoever. Neither interpretation provides the
Claimants with a viable Tucker Act or Indian Tucker Act claim.
B. Timeliness of Use-Restriction Claims
The use-restriction claims were also untimely, since they were not brought
within six years of the alleged wrongful disbursement of the land revenues. The
so-called Indian Trust Accounting Statute or ¡§ITAS¡¨ does not control the
limitations period in this case because that statute applies only to ¡§claims
concerning losses to or mismanagement of trust funds.¡¨ Although DOI deposited
and maintained the land revenues in U.S. Treasury accounts denominated ¡§trust¡¨
30
accounts, that action does not make the revenues ¡§trust funds.¡¨ As this Court held
in Wolfchild VI, DOI was under no obligation to hold the land revenues in trust for
the descendants of the 1886 Mdewakantons. Absent a legal duty to manage the
revenues as a trust asset, the revenues cannot be deemed a true trust fund. In
addition, this is not a case involving mere mismanagement of or losses to an extant
trust, where an accounting was (and remains) reasonably required to provide notice
of a breach and possible suit. Rather, the Claimants alleged an unlawful
liquidation of trust funds and complete disbursement of trust assets to the wrong
beneficiaries. The existence of this alleged breach was evident at the point the
trusts funds were thus liquidated. According, ITAS has no bearing on the userestriction
claims and did not rescue those claims from the statute-of-limitations
time bar.
C. Applicability of Tribal Judgment Act
Because the use restrictions claims are not viable and are time-barred, there
is no basis for a judgment against the United States. If this Court finds a basis for
the CFC¡¦s judgment, however, this Court should review and reverse the CFC¡¦s
decision to retain jurisdiction over the distribution of the judgment. The CFC
entered judgment under the Indian Tucker Act in favor of the descendants of the
1886 Mdewakantons, as an ¡§identifiable group of American Indians.¡¨ Given the
nature of the judgment, the CFC correctly determined that the Tribal Judgment Act
31
applies to determine a proper distribution. The CFC refused to defer to the
Congressional-review procedures under that Act, however, on the theory that the
1995 Reports Elimination Act repealed 25 U.S.C. ¡± 1402(a), the provision that
requires DOI to submit use or distribution plans to Congress. In so holding, the
CFC ignored the plain terms of the Reports Elimination Act, which limit its
application to certain ¡§annual, semiannual, or other regular periodic reports.¡¨
Section 1402(a) does not require ¡§regular periodic¡¨ reports, but instead mandates
ad hoc submittals whenever the CFC issues a tribal judgment. There is no basis
for inferring Congressional intent to repeal this provision and thus no grounds for
the CFC¡¦s designating itself as substitute reviewer in Congress¡¦s place.
STANDARD OF REVIEW
This Court reviews de novo a grant of summary judgment or denial of a
motion to dismiss for lack of subject-matter jurisdiction. Creative Compounds,
LLC v. Starmark Laboratories, 651 F.3d 1303, 1309 (Fed. Cir. 2011). This Court
also reviews, de novo, all questions of statutory construction, In re Staats, 671 F.3d
1350, 1353 (Fed. Cir. 2012), including whether a statute is ¡§money-mandating¡¨ for
purposes of Tucker-Act jurisdiction, Ferreiro v. United States, 501 F.3d 1349,
1352 (Fed. Cir. 2007), and whether a statute of limitations applies to bar a claim.
Gillig v. Nike, Inc., 602 F.3d 1354, 1358 (Fed. Cir. 2010).
32
ARGUMENT
I. THE USE-RESTRICTION CLAIMS ARE NOT VIABLE
A. The Tucker Act and Indian Tucker Act Require a Separate
Source of Law Establishing a Money-Mandating Duty
The Tucker Act gives the CFC jurisdiction over certain ¡§claim against the
United States founded either upon the Constitution, . . . any Act of Congress, . . .
any regulation of an executive department, or . . . any express of implied contract .
. .¡¨ 28 U.S.C. ¡± 1491. The Indian Tucker Act similarly gives the CFC jurisdiction
over certain ¡§claim against the United States . . . in favor of any tribe, band, or
other identifiable group of American Indians,¡¨ whenever the claim ¡§aris[es] under
the Constitution, laws or treaties of the United States, or Executive orders of the
President¡¨ or ¡§would be cognizable in the [CFC] if the claimant were not an Indian
tribe, band or group.¡¨ 28 U.S.C. ¡± 1505. ¡§Neither . . . Act . . . creates substantive
rights; they are simply jurisdictional provisions that operate to waive sovereign
immunity for claims premised on other sources of law.¡¨ United States v. Navajo
Nation, 556 U.S. 287, 290 (2009) (¡§Navajo III¡¨).
To establish a cognizable claim on a separate substantive source of law, a
plaintiff need not show that such source expressly provides a remedy in damages
for an alleged breach. Id. However, a plaintiff must show: (1) that the relevant
¡§substantive source of law . . . establishes specific fiduciary or other duties¡¨ on the
33
Government, and (2) that such source of law ¡§can be fairly interpreted as
mandating compensation for damages sustained as a result of a breach of [such]
duties.¡¨ Id.
The courts have found statutory duties to be ¡§money mandating¡¨ in two
contexts. First, courts have found viable damage claims where a statute or
network of statutes creates a specific trust obligation on the part of the
Government. United States v. Mitchell, 463 U.S 206, 225-26 (1983) (¡§Mitchell
II¡¨). A ¡§bare¡¨ trust relationship is not sufficient. Navajo III, 556 U.S. at 299-302;
United States v. Mitchell, 445 U.S. 535, 540-545 (1980) (¡§Mitchell I¡¨). But where
there is detailed language establishing a specific duty (e.g., duty to manage certain
assets for the benefit of a tribe), the courts will infer a cause of action for damages
incurred as the result of an alleged breach of trust, based on the language
establishing the trust obligation and common-law trust principles. Navajo III, 556
U.S. at 301-302; Mitchell II, 463 U.S.at 225-26.
Second, this Court has found viable Tucker-Act claims under statutes that
create an entitlement to monetary compensation, either by leaving the Government
with ¡§no discretion¡¨ over the payment of funds, Fisher v. United States, 402 F.3d
1167, 1174-75 (Fed. Cir. 2005), or by mandating payment to specified persons
under ¡§clear standards,¡¨ in ¡§precise amounts,¡¨ and/or on satisfaction of certain
conditions. See Perri v. United States, 340 F.3d 1337, 1342¡V43 (Fed.Cir.2003)
34
(citing Doe v. United States, 100 F.3d 1576, 1579-80, 1582-83 (Fed.Cir.1996)).
For example, this Court has found Tucker Act jurisdiction over claims founded
upon:
„h a statute providing an ¡§undisputed right to the payment of a bonus in an
amount certain¡¨ upon a showing that a plaintiff was employed on a specified
date, Price v. Panetta, 674 F.3d 1335, 1340 (Fed. Cir. 2012);
„h a statute giving the Secretary of Defense ¡§no discretion [but] to pay out
retirement funds¡¨ to persons with qualifying disabilities once a disability is
found to be qualifying under specific standards, Fisher v. United States, 402
F.3d 1167, 1174-75 (Fed. Cir. 2005);
„h a statute providing an ¡§entitle[ment]¡¨ to remote duty allowance to persons
employed at specified remote duty sites, Agwiak v. United States, 347 F.3d
1375, 1380 (Fed. Cir. 2003); and
„h a statute compelling the Secretary of the Treasury to pay a percentage of the
funds recovered in a customs enforcement case to an informant who made
the recovery possible. Doe, 100 F.3d at 1582-83 (Fed. Cir. 1996).9
9 Although the statute in Doe stated that the Secretary of Treasury ¡§may award¡¨ a
customs informant compensation, an earlier (pre-1986) version of the statute had
long been construed as ¡§confer[ring] upon the informer an absolute right to
demand the payment of the [specified] award¡¨ when the ¡§conditions precedent¡¨
were met, id. at 1579-80 (quoting Tyson v. United States, 32 F.Supp. 135, 136 (Ct.
35
The common element of these statutes is language that fairly can be read as
mandating a monetary payment to specified persons or entities as compensation for
¡§past injuries or labors.¡¨ See Bowen v. Massachusetts, 487 U.S. 879, 905-6 n. 42
(1988) (citing United States v. Testan, 424 U.S. 392, 405 (1976) (referencing
¡§Back Pay Act¡¨); Bell v. United States, 366 U.S. 393, 398 (1961) (statute
providing compensation to former prisoners of war)).
In contrast, any statute that gives a government official ¡§substantial
discretion to decide whether to expend government funds in a particular way¡¨ does
not create a statutory entitlement to funds or any basis from which a cause of
action for money damages can be inferred. Price, 674 F.3d at 1339. For example,
In Samish Indian Nation v. United States, 657 F.3d 1330 (Fed. Cir. 2011) (¡§Samish
V¡¨), this Court found no Indian Tucker Act jurisdiction over the Samish Indian
Nation¡¦s claim to proceeds under annual appropriations acts that supported tribal
programs per the tribal priority allocation (¡§TPA¡¨) system established by the
Bureau of Indian Affairs. 657 F.3d at 1336. This Court noted that the
appropriations acts did ¡§not provide a clear standard for paying money to
Cl. 1940)), and this Court found no evidence that Congress intended to reverse
this longstanding interpretation. Id. at 1581-84.
36
recognized tribes,¡¨ did not ¡§state the amounts to be paid to any tribe,¡¨ and did not
¡§compel payment on satisfaction of conditions.¡¨ 10 Id.
Similarly, this Court found no Tucker Act jurisdiction over claims founded
on:
„h a statute authorizing the Secretary of the Air Force to provide
¡§incapacitation pay¡¨ whenever the Secretary finds it to be ¡§in the interests
of fairness and equity to do so,¡¨ Barnick v. United States, 591 F.3d 1372,
1378 (Fed. Cir. 2010); and
„h a statute permitting (but not mandating) awards to persons who provide
¡§information or assistance directly relating to violations of . . . criminal drug
laws¡¨ and other statutes. Perri v. United States, 340 F.3d 1337, 1341-43
(Fed. Cir. 2003) (distinguishing Doe, supra).
The common element of these statutes is that they left government officials with
substantial discretion to determine to whom to make authorized payments and in
what amount, precluding any assertion of entitlement.
10 In Samish V, this Court did find an Indian Tucker Act cause of action based on
language of the federal ¡§Revenue Sharing Act¡¨ directing the Secretary of the
Treasury to pay specified monetary ¡§entitlements¡¨ to tribes, States, and local
governments via formula based on population. 657 F.3d at 1332-33, 1335, 1338-
39; but see National Ass¡¦n of Counties v. Baker, 842 F.2d 369, 375 (D.C. Cir.
1988) (declining to imply a ¡§substantive right to recover damages¡¨ from statutory
language creating substantive rights to money ¡§standing alone¡¨).
37
B. The 1888-1890 Acts Did Not Mandate Payments to the
Descendants of the 1886 Mdewakantons
As explained supra (pp 22-23), the 1888-1890 Acts appropriated funds to be
expended by the Secretary of the Interior for the purchase of lands and goods for
the support of 1886 Mdewakantons. In contrast, the present case involves claims
by a different class of persons (alleged descendants of the 1886 Mdewakantons) to
a different set of funds (revenues derived from lands purchased under the 1888-
1890 Acts). The CFC determined that the 1888-1890 Acts governed disbursement
of the land revenues because the revenues were traceable to the appropriations,
Wolfchild VII, 96 Fed. Cl. at 336-37, and that ¡§use restrictions¡¨ within the 1888-
1890 Acts reasonably can and should be read as mandating the payment of the land
revenues to the descendants of the 1886 Mdewakantons. Id. at 337-348. While
DOI reasonably interpreted the 1888-1890 Acts as authorizing use of 1886 lands
for the support of descendants of the 1886 Mdewakantons, those Acts cannot be
construed as mandating the payment of land revenues to descendants.
1. Authority to Support Descendants Is Not a Money Mandate
The CFC held that DOI was ¡§statutorily required¡¨ to handle revenues from
1886 lands in accordance with ¡§mandates¡¨ within the 1888-1890 Acts, given the
¡§fundamental precept¡¨ that every agency action must be ¡§anchored¡¨ in some
statute and DOI¡¦s longstanding practice of managing the 1886 lands to meet the
38
purposes of the 1888-1890 Acts. Wolfchild VII, 96 Fed. Cl. at 336-37. There is no
denying that DOI looked to the 1888-1890 Acts when managing 1886 lands. As
this Court explained in Wolfchild VI, while the 1888-1890 Acts did not direct DOI
to take lands into trust or require DOI to retain title to lands purchased for the 1886
Mdewakantons, DOI¡¦s decision to retain title (in the name of the United States) left
DOI with continuing responsibility over the 1886 lands, if not to particular
persons, including the duty to determine rights of use and occupancy upon the
death of the individual Indians for whom the lands were purchased. See 559 F.3d
at 1246. Because the 1889 and 1890 Acts permitted DOI to consider the individual
needs of any ¡§families¡¨ of the 1886 Mdewakantons, Act of Mar. 2, 1889, ch. 412,
25 Stat. at 992; Act of Aug. 19, 1890, ch. 807, 26 Stat at 349, DOI adopted a policy
of reassigning available tracts, as the Department deemed best, to family members
of 1886 Mdewakantons, broadly defined as including descendants. Wolfchild VI,
559 F.3d at 1246-49. Similarly, when no 1886 Mdewakanton or descendant was
available to receive such assignment, DOI determined that it could lease or license
vacant tracts at fair market value and hold the revenue for the benefit of the area
Indian communities. Id. at 1248; see also Wolfchild VII, 96 Fed. Cl. at 320-321.
DOI¡¦s policy of managing the 1886 lands to ¡§approximate Congress¡¦s
purpose in the [1888-1890] Acts,¡¨ WolfchildVI, 559 F.3d at 1249, supports the
view that DOI also had authority to disburse land revenues to serve the purposes of
39
the Acts, i.e., to make expenditures, as the Department deemed best, to ¡§support¡¨
one or more of the 1886 Mdewakantons or their ¡§families,¡¨ inclusive of
descendants. It does not follow, however, that the 1888-1890 Acts mandated the
disbursements of land revenues at any particular time, to any particular descendent,
or in any particular amount. To be sure, any statute that authorizes expenditures
for a specified purpose necessarily restricts expenditures to that purpose, as
agencies cannot disburse federal funds without statutory authority. See generally
Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (¡§the
payment of money from the Treasury must be authorized by a statute¡¨). But DOI¡¦s
implied authority to generate and expend land revenues for the ¡§support¡¨ of
families of the 1886 Mdewakantons was not a mandate requiring any expenditures,
much less a mandate to make monetary payments to any and all identifiable
descendants.
2. The Equal Value Proviso Does Not Pertain to Money
Payments, Land Revenues, or the Descendants
The CFC inferred a money-mandating duty to descendants of the 1886
Mdewakantons not from statutory purpose alone, but principally from the clause in
the 1889 and 1890 Acts (hereinafter, the ¡§equal-value proviso¡¨) that stated:
all of said [appropriated] money which is to be expended for lands,
cattle, horses, implements seeds, food or clothing shall be so
expended that each of the Indians in this paragraph mentioned shall
40
receive, as nearly as practicable, an equal amount in value of this
appropriation.
See Act of Aug. 19, 1890, ch. 807, 26 Stat. at 349; Act of Mar 2, 1889, ch. 412, 25
Stat. at 992. This proviso required DOI, as practicable, to expend the subject
appropriations on at least one item (land or goods) for every eligible Indian and to
provide each Indian with sets of items of roughly equal value. Id. The CFC
determined that this language likewise provided a ¡§clear standard¡¨ for disbursing
the land revenues and thus created a money-money mandating duty with respect to
the revenues. Wolfchild VII, 96 Fed. Cl. at 337, 342-43, 347. This interpretation
cannot survive scrutiny.
To begin with, although the above quoted language used the obligatory
¡§shall,¡¨ it did so in relation to the expenditure of funds for the purchase of
specified items. Id. As explained supra, to establish Tucker Act or Indian Tucker
Act jurisdiction, a plaintiff must allege more than the breach of a mandatory duty.
Navajo III, 556 U.S. at 290. The plaintiff must also show that the duty is moneymandating;
i.e., that a cause of action for damages fairly can be inferred in relation
to the breach.11 Id. The CFC cited the authority (discussed, supra) for inferring a
11When the relevant statutes establish a specific trust obligation and ¡§define the
contours of the United States¡¦ fiduciary duties,¡¨ it ¡§naturally follows that the
Government should be liable in damages for the breach of its fiduciary duties.¡¨
41
cause of action for wrongful nonpayment where Congress has mandated direct
monetary payments to individuals or entities, e.g., to ¡§compensate a particular class
of persons for past injuries or labors.¡¨ Wolfchild VII, 96 Fed. Cl. at 342 (quoting
Bowen, 487 U.S. at 905-6 n. 42. The CFC cited no authority for inferring a
money-mandating duty from language that merely restricts the expenditure of
appropriations. Indeed, unlike an earlier 1885 statute that allowed appropriations
for the Mdewakantons to be disbursed in the form of ¡§cash,¡¨ the 1888-1890 Acts
did not even authorize monetary payments.12
Moreover, even if a money-mandating duty fairly can be inferred from the
statutory obligation to spend appropriations in roughly equal parts for the 1886
Mdewakantons, this obligation cannot be construed as applying to descendants of
the 1886 Mdewakantons and the later-derived land revenues. This is so for three
reasons. First, as noted supra, the 1889 and 1890 Acts merely permitted the
Secretary to expend the original subject appropriations ¡§as in his judgment he may
Mitchell II, 463 U.S. at 224, 226. Here, there is no trust, so the intent to provide a
monetary remedy for the breach of a statutory duty must be otherwise inferred.
12Compare Act of Mar. 3, 1885, ch. 341, 23 Stat. 362, 365 (authorizing
disbursements for ¡§agricultural implements, lands, or cash¡¨) with Act of June 29,
1888, ch. 503, 25 Stat. at 230, Act of Mar. 2, 1889, 25 Stat. at 992 and Act of
Aug.18, 1890, 26 Stat. at 349 (variously authorizing expenditures for ¡§lands¡¨,
¡§agricultural implements¡¨, ¡§buildings¡¨, ¡§seeds¡¨, ¡§cattle¡¨, ¡§horses¡¨, ¡§food¡¨, or
¡§clothing¡¨).
42
think best¡¨ on lands or goods ¡§as may be deemed best in the case of each [eligible]
Indian or family thereof.¡¨ Act of Mar. 2, 1889, ch. 412, 25 Stat. at 992 (emphasis
added); see also Act of Aug. 19, 1890, ch. 807, 26 Stat. 336 (nearly identical
language). This language did not compel the Secretary to make purchases for
living family members of the 1886 Mdewakantons (who did not themselves meet
the statutory criteria) or to make provisions for future generations. Id. The equalvalue
proviso (supra) did not mention family members or descendants. Id.
Second, by its terms, a requirement to distribute moneys equally among a
specified class can only operate as a point-in-time mandate; i.e., when there is a
fixed sum to be distributed to a fixed or determinable number of persons.13 DOI
generated the subject land revenues over an extended and potentially unbounded
period of time, during which time the number of descendants was continually in
flux (due to births and deaths). If DOI was statutorily required to disburse an
unknowable sum of land revenues equally to an ever-changing cast of individual
descendants, when did such mandate attach? Whenever DOI first received any
revenues and then only as those descendants alive at the time of each receipt? Or
13 The CFC¡¦s observation that the appropriations endured until expended,
Wolfchild VII, 96 Fed. Cl. at 343) does not alter the fact that the ¡§equal value¡¨
proviso applied to fixed sums and a fixed class of beneficiaries.
43
at some unspecified periodic interval?14 The virtual impossibility of administering
such a requirement precludes any inference that Congress intended (much less
mandated) such result.
Third, there is no reason to believe that Congress would have intended future
land revenues to be expended equally on any and all future descendants of the
1886 Mdewakantons. Congress¡¦s desire to provide roughly equal support to each
of the 1886 Mdewakantons reflected the common circumstance of these Indians,
all of whom had lost their tribal lands and affiliation as a result of a rebellion in
which they (presumably) did not participate, except to aid white settlers. In
contrast, the present Claimants have nothing in common except an alleged lineal
ancestor among one or more Indians alleged to have been eligible to receive
benefits under the 1888-1890 Acts. They are not all descendants to the same
degree, they do not all belong to the same (if any) tribal community, and they do
not share a common economic need. Moreover, per this Court¡¦s ruling in
Wolfchild VI, Congress did not intend the 1888-1890 Acts to create a trust on
behalf of the 1886 Mdewakanton and their descendants. See 559 F.3d at 1255. In
short, there is no textual basis for inferring a statutory duty to equally distribute the
14 If the alleged statutory requirement attached only if and when DOI exercised
discretion to disburse the revenues, there was no money-mandating duty, as DOI
was free to hold the revenues in perpetuity (or until Congress directed a specific
use).
44
unanticipated funds (the land revenues) to persons (the descendants) who were not
intended direct beneficiaries of the appropriations.
The CFC¡¦s effort to find support for such duty in the supposed purpose of
the 1888-1890 Acts is also misplaced. See Wolfchild VII, 96 Fed. Cl. at 340-342.
The CFC reasoned that because Congress acted to support the 1886 Mdewakanton,
Congress must have intended the appropriations to serve as ¡§substitutes¡¨ for
benefits earlier provided in treaties with the Sioux bands. Id. This cannot be
squared with Congress¡¦s express decision to appropriate the funds for the support
of individual former Mdewakantons who had not reorganized and were not
required to organize as a group as a condition precedent to receiving support. Nor
can it be squared with the absence of any statutory duty to generate future revenues
for, or to hold the lands or any portion of the appropriations in trust for, future
generations of the 1886 Mdewakantons individually or as a group. See Wolfchild
VI, 559 F.3d at 1255.
Finally, the CFC errs in suggesting, Wolfchild VII, 96 Fed. Cl. at 347, that
the equal-value proviso must be interpreted as applying to the land revenues to
avoid rendering the proviso ¡§superfluous.¡¨ The proviso applied to the original
appropriations. All 264 of the 1886 Mdewakantons presumably received their fair
share from the expenditures, in accordance with the equal value proviso, around
the time the statutes were enacted. No principle of statutory construction required
45
revivifying the proviso and applying it in a context to which it did not expressly
apply and reasonably could not be applied.
3. There Was no Actionable Breach (If Any) of the 1888-1890 Acts
Because the equal value proviso did not apply to disbursement of the land
revenues, the only potentially applicable restriction per the 1888-1890 Acts was an
arguable duty to expend the revenues to ¡§support¡¨ one or more family members
(descendants) of the 1886 Mdewekantons, as the Secretary deemed best. DOI¡¦s
disbursement of the land revenues to the tribal Communities that were organized
on and around the 1886 lands and by descendants of the 1886 Mdewakantons was
in accord with this purpose and in accord with the terms and purpose of the 1980
Act (which declared the 1886 lands held in trust for the Communities). However,
whether the disbursements were authorized under any or all of these statutes is not
at issue. The statutes either gave DOI complete discretion to determine how to
disburse the land revenues to meet the statutory purposes or no discretion to
disburse the revenues.15 Under either construction, the Claimants lack a viable
Tucker Act or Indian Tucker Act claim. The Claimants¡¦ ¡§use restriction¡¨ claims
were predicated on the assertion that each and every person who is a bona fide
15 ¡§Miscellaneous receipts¡¨ (funds received without a statutorily prescribed use)
must be deposited in the Treasury, 31 U.S.C. ¡± 3302(b), for expenditure only as
appropriated by Congress. Office of Personnel Management, 496 U.S. at 424.
46
descendant of an 1886 Mdewakanton is (or was) statutorily entitled to a share of
the land revenues. For reasons already stated, that interpretation of the 1888-1890
Acts cannot be sustained.
II. THE USE-RESTRICTION CLAIMS ARE BARRED BY THE
STATUTE OF LIMITATIONS
A. The Claims Are Time-Barred Under 28 U.S.C. ¡± 2501
The CFC¡¦s judgment on the use-restriction claims also must be reversed
under the statute of limitations. A cause of action under the Tucker Act or Indian
Tucker Act is time-barred unless filed within six years of the date the cause of
action accrued. 28 U.S.C. ¡± 2501; San Carlos Apache Tribe v. United States, 639
F.3d 1346, 1350 (Fed. Cir. 2011). A cause of action accrues ¡§when all the events
which fix the government's alleged liability have occurred and the plaintiff was or
should have been aware of their existence.¡¨ San Carlos Apache, 639 F.3d at 1350
(quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577
(Fed.Cir.1988)).
Here, the Claimants¡¦ use-restriction claims arguably accrued on each
occasion that DOI received revenues from leases or licenses on the 1886 lands and
failed to disburse the revenues to descendants of the 1886 Mdewakantons as
allegedly required by the 1888-1890 Acts. See pp. 42-43, supra. At the latest, the
claims accrued in 1981 and 1982 when DOI disbursed the revenues to the
47
Communities (pp.26-28, supra), thereby precluding disbursement to descendants
of the 1886 Mdewakantons individually and providing notice to individual
claimants that such disbursement would not occur. If the claims accrued in 1981
and 1982, the six-year statute of limitations ran in 1987 and 1988. 28 U.S.C. ¡±
2501.
B. ITAS Does Not Apply
As explained supra, despite the running of the statute of limitations, the CFC
determined that the statutorily-barred claims were ¡§resuscitated¡¨ in 1990, when
Congress began enacting, as part of the annual appropriation to DOI, a tolling
provision sometimes referred to as the ¡§Indian Trust Accounting Statute¡¨ or
¡§ITAS.¡¨ See Wolfchild VII, 96 Fed. Cl. at 331-35. The 2003 enactment stated
that:
[N]otwithstanding any other provision of law, the statute of
limitations shall not commence to run on any claim, including any
claim in litigation pending on the date of the enactment of this Act,
concerning losses to or mismanagement of trust funds, until the
affected tribe or individual Indian has been furnished with an
accounting of such funds from which the beneficiary can determine
whether there has been a loss.
Pub. L. No. 108-108, 117 Stat. 1241, 1263 (Nov. 10, 2003); see also Pub. L. No.
109-54, 119 Stat. 499, 519 (Aug. 2, 2005) (same). Contrary to the CFC¡¦s
determination, this statute does not apply.
48
¡§Statutes that toll the statute of limitations, resurrect an untimely claim,
defer the accrual of a cause of action, or otherwise affect the time during which a
claimant may sue the Government . . . are considered a waiver of sovereign
immunity¡¨ and ¡§must be construed strictly¡¨ in favor of the sovereign. Shoshone
Indian Tribe v. United States, 364 F.3d 1339, 1346 (Fed. Cir. 2004) (internal
citations omitted). This means a waiver will be found only where ¡§unequivocally
expressed.¡¨ Id. (quoting Dep¡¦t of Army v. Blue Fox, Inc., 525 U.S. 255, 261
(1999). In ITAS, Congress expressly consented to suit only as to claims
concerning ¡§trust funds,¡¨ and only where such claims allege ¡§loss or
mismanagement¡¨ for which an ¡§accounting¡¨ is reasonably required to establish
breach of a fiduciary duty.
1. ITAS Only Applies Where There Is a Trust Duty
Properly construed, the Claimants¡¦ use restriction claims do not involve
¡§trust funds.¡¨ Under common usage, a ¡§trust fund¡¨ is a fund that must be managed
in accordance with trust principles. The first certified question in Wolfchild VI was
whether the 1888-1890 Acts created a trust for the benefit of the 1886
Mdewakantons ¡§which . . . included land, improvements to land, and monies as the
corpus.¡¨ 559 F.3d at 1237 (emphasis added). This Court answered ¡§no.¡¨ Id. at
1255. Although this Court¡¦s decision focused principally on the 1886 lands as
opposed to the monies derived from the lands, this Court¡¦s decision expressly and
49
logically embraced both, foreclosing any claim that the 1888-1890 Acts imposed
trust duties as to the monies. Id. at 1237-55.
Nor did the CFC determine that DOI had a trust obligation in relation to the
land revenues arising from a different statute. In a footnote, the CFC cited various
authorities for the proposition that when the Government holds any Indian money,
the funds are presumed to be held in trust. Wolfchild VII, 96 Fed. Cl. at 332, n. 41
(citing Loudner v. United States, 108 F.3d 896, 900 (8th Cir. 1997); Moose v.
United States, 674 F.3d 1277, 1281 (9th Cir. 1982); American Indians Residing on
Maricopa-Ak Chin Reservation v. United States, 667 F.2d 980, 1002 (Ct. Cl.
1981)). An interpretive presumption, however, can only be applied in relation to
the statute or statutes giving the Government control over the subject funds. The
only statutes the CFC has identified as governing the land revenues are the 1888-
1890 Acts. And the presumption cited by the CFC applies equally to property. See
American Indians, 667 F.2d at 1002 (¡§Where the Government takes on or has
control and supervision over tribal money or property, the normal relationship is
fiduciary unless Congress expressly has provided otherwise¡¨) (emphasis added).
The CFC cannot presume a trust obligation arising from the 1888-1890 Acts after
this Court, on certified appeal, interpreted the Acts to create no trust in lands or
monies. Wolfchild VI, 559 F.3d at 1255.
50
Indeed, the CFC did not expressly find a trust obligation, notwithstanding its
citation to the interpretive presumption. 16 Rather, the CFC determined that the
land revenues were held ¡§in trust¡¨ simply because DOI had deposited and
maintained the subject land revenues ¡V prior to disbursement ¡V in various U.S.
Treasury accounts denominated ¡§trust¡¨ accounts. Wolfchild VII, 96 Fed. Cl. at
333-35. This is a non sequitur. Absent a statutory duty or delegated authority to
create a binding trust, the mere deposit of funds into an Indian trust account by
federal officials cannot create an Indian ¡§trust fund.¡¨
This principle is reflected in DOI guidelines that govern trust duties owed to
tribes and individual Indians under federal law. See 25 C.F.R. ¡± 115.001 et seq.
These regulations define the term ¡§trust fund¡¨ to mean ¡§money derived from the
sale or use of trust lands, restricted fee lands, or trust resources and any other
money that the Secretary must accept into trust.¡¨ 25 C.F.R. ¡± 115.002 (emphasis
added). The CFC cited this definition and correctly observed that the ¡§derived
from¡¨ clause did not apply to the subject land revenues, because the 1886 lands
(prior to the operation of the1980 Act) were not ¡§trust lands¡¨ or ¡§restricted fee
16The CFC¡¦s judgment on the use restriction claims is not predicated on the
existence of any trust duty, Wolfchild VII, 96 Fed. Cl. at 336-347, and the CFC
dismissed the Claimants¡¦ breach of trust claims in their entirety (not merely as to
the lands). Id. at 352.
50

[mdenney]

lands.” Wolfchild VII, 96 Fed. Cl. at 333. Yet the CFC proceeded to hold,
inexplicably, that the land revenues fell under the heading of “money that the
Secretary must accept into trust.” Id. at 333-34 (emphasis added). In so doing, the
CFC never identified any source of law that compelled the Secretary to take the
land revenues into trust or deposit them into trust accounts. Id. at 333-34. Nor in
its merits ruling did the CFC treat the revenues as anything other than the
equivalent of ordinary appropriations. Id. at 337 (finding that DOI was “statutorily
required to handle” the land revenues in a manner that accorded with the 1888-
1890 Appropriations Acts).
Thus, the CFC’s ruling boils down to the proposition that, in ITAS,
Congress extended the Tucker Act’s waiver of sovereign immunity (by removing
the otherwise applicable statute of limitations) for suits alleging the loss or
mismanagement of any funds appropriated to Indians. That interpretation cannot
stand, as such waiver was not “unequivocally expressed.” Shoshone, 364 F.3d at
1346.
2. ITAS Only Applies Where an Accounting Is Reasonably
Required to Demonstrate a Breach
Even if any funds once held in a trust account are “trust funds” for ITAS
purposes, ITAS does not apply to Claimants’ use-restriction claims for the
additional reason that an accounting was not reasonably required to provide notice
52
of the claims. As this Court explained in Shoshone, the “operative” clauses of
ITAS include the instruction that ITAS applies “[n]otwithstanding any other
provision law,” and the directive that the statute of limitations “shall not
commence to run” on subject claims until there is an accounting from which the
existence of a loss can be determined. Shoshone, 364 F.3d at 1346. Together,
these clauses eliminate the statute of limitations for subject claims as to which
there has been no accounting. Id. at 1346-1348. This Court explained that in trust
law, a claim for breach traditionally accrues upon “repudiation,” which can be
open and express or via actions inconsistent with a trust responsibility. Id. at 1348.
In the latter case, a breach can occur without clear notice to beneficiaries,
especially given the reliance beneficiaries are entitled to place in their trustees. Id.
Accordingly, it is “common” for courts to require an “accounting” to provide the
presumptive notice necessary to begin the relevant limitations period in breach-oftrust
cases. Id. Congress codified this rule in ITAS in response to the “simple
logic” that a beneficiary cannot be presumed aware of a relevant breach “unless
and until an accounting has been rendered.” Id. at 1347.
Such “simple logic,” however, does not apply where (as here) the United
States has openly repudiated an alleged trust, e.g. via the wholesale liquidation and
distribution of an alleged trust fund to persons other than the alleged beneficiaries.
In such cases, a formal “accounting” of trust assets is not required to provide
53
presumptive notice of a potential cause of action. Further, in ITAS, Congress did
not suspend the statute of limitations, pending an accounting, on all “breach of
trust” claims. Rather, Congress addressed claims “concerning losses to or
mismanagement of trust funds.” Id. at 1344. In context, the terms “loss” and
“mismanagement” imply misconduct in relation to an ongoing trust, i.e., where
there is a dispute as to the whether federal officials’ actions were consistent with
an acknowledged and ongoing trust obligation. These terms do not readily
encompass cases where the alleged trust has long since ceased to exist as a result of
federal action completely repudiating the notion of any trust obligation.
In finding that Congress did intend to include such claims, the CFC stated
that it was “difficult to imagine what type of claim would fall under ‘losses to or
mismanagement of trust funds’ if the disbursement of the entire funds [of an
alleged trust] to the wrong beneficiaries is not included.” Wolfchild VII, 96 Fed. Cl.
at 335. This betrays a fundamental misunderstanding of the issue. The terms
“loss” and “mismanagement” plainly are a subset of claims within the broader
category “breach of trust.” And the terms “loss” and “mismanagement” plainly
encompass claims like those not merely “imagined” but actually addressed by this
Court in Shoshone, i.e., alleged failures by federal officials to collect and manage
revenues in relation to acknowledged trust assets that the Government continued to
manage as trustee. Shoshone, 364 F.3d at 1348-1354. Thus, there is no difficulty
54
in identifying claims that fall within the terms of the ITAS waiver, as
unequivocally expressed.
In contrast, ITAS does not unequivocally express Congress’s intention to
eliminate/suspend the statute of limitations as to claims concerning the alleged
wholesale liquidation of trust funds, where the relevant trust accounts have long
since ceased to exist and where the federal officials have long since denied any
trust obligation. Because ITAS does not unequivocally apply to the use-restriction
claims in this case, the CFC’s reliance on ITAS was in error. Id. at 1346,
III. THE 1995 REPORTS ELIMINATION ACT DID NOT REPEAL ANY
PART OF THE TRIBAL JUDGMENT ACT
Because the Claimants’ use-restriction claims are not viable under the
Tucker Act or Indian Tucker Act and are time-barred, and because the CFC
correctly dismissed all remaining claims, there is no basis for judgment against the
United States. If this Court finds a basis for the CFC’s judgment, however, this
Court should reverse that portion of the judgment pertaining to the Tribal
Judgment Act. See pp. 16-18, supra. Contrary to the CFC’s conclusion, the
Tribal Judgment Act has not been repealed in any part and continues to govern any
judgment to a group of Indians under the Indian Tucker Act.
55
A. The Tribal Judgment Act Governs All Judgments under the
Indian Tucker Act
The Tribal Judgment Act (25 U.S.C. §§ 1401-1407) applies to determine the
“use or distribution” of any funds appropriated in satisfaction of a judgment by the
CFC “in favor of any Indian tribe, band, group, pueblo, or community.” 25 U.S.C.
§ 1401. These terms parallel those of the Indian Tucker Act, which grants
jurisdiction over claims “in favor or any tribe, band, or other identifiable group of
American Indians.” 28 U.S.C. § 1505. Under these statutes, if the CFC grants
judgment on an Indian-Tucker-Act claim in favor of an “identifiable group of
American Indians,” id., the Secretary must: (1) prepare a plan, with notice to and
input from the impacted group, that “best serve the interest” of all persons
“entitled to receive funds” under the judgment, 25 U.S.C. § 1403(a), (2) submit the
plan to Congress, id., § 1402(a), and (3) take immediate action to implement the
plan after a sixty-day review period, if Congress does not adopt a joint resolution
disapproving the plan during such period. Id., § 1405(a).
The Tribal Judgment Act specifies that the Secretary must submit the plan to
Congress “within one year after appropriation of funds” to pay the judgment. Id.,
§ 1402(a). Congress has provided that “necessary amounts are appropriated to pay
[specified] final judgments” upon certification by the Secretary of the Treasury. 31
U.S.C. § 1304(a). Such judgments include judgments rendered by the CFC against
56
the United States. Id. (referencing 28 U.S.C. § 2517(a). Accordingly, the one-year
deadline under the Tribal Judgment Act runs from the time an Indian-Tucker-Act
judgment is certified.
In the present case, although the Plaintiffs and Intervenor-Plaintiffs brought
claims in their own names (as under the Tucker Act), the Plaintiffs purported to
represent “all descendants” see Wolfchild I, 62 Fed. Cl. at 533-34, and all
Claimants pursued causes of action (include the use-restriction claims) that
asserted individual entitlement to damages solely due to each individual’s
membership within the “descendant” class. The CFC determined that the
descendants of the 1886 Mdewakantons are an “identifiable group of American
Indians” for purposes of the Indian Tucker Act, Wolfchild VIII, 101 Fed. Cl. at 79-
80, and entered judgment in the amount presumed due to the entire group. Id. at
91-92. Given the nature of the judgment (and assuming its correctness), the CFC
properly determined that the Tribal Judgment Act applies. Id. at 79-86.
B. Congress did Not Repeal Any Part of the Tribal Judgment Act
The CFC erroneously concluded, however, that the Court could retain
jurisdiction to review DOI’s use or distribution plan. The CFC acknowledged that
the Tribal Judgment Act provides an exclusive mechanism for determining
distribution of a judgment in favor of an Indian group. Wolfchild VIII, 101 Fed. Cl.
at 86 & n. 29; see also Turtle Mountain Band of Chippewa Indians v. United
57
States, 490 F.2d 935, 951 (Ct. Cl. 1974) (recognizing that distribution issues are
for Congress or authorized administrative bodies). Nonetheless, the CFC
determined that the court could and should retain jurisdiction here, because
Congress “decimated” the Tribal Judgment Act in 1995 via enactment of the
Reports Elimination Act, which allegedly repealed the provision of the Tribal
Judgment Act (25 U.S.C. § 1402(a)) requiring the submittal of use or distribution
plans to Congress. Wolfchild VIII, 101 Fed. Cl. at 90.
In Section 3003(a), Congress declared, subject to specified exceptions, that
each provision of law requiring the submittal to Congress . . . of any
annual, semiannual, or other regular periodic report specified on the
list described under subsection (c) shall cease to be effective, with
respect to that requirement, May 15, 2000.
See 31 U.S.C. § 1113, note (citing Pub.L. 104-66, Title III, § 3003(a),109 Stat. 734
(Dec. 21, 1995), as amended by Pub.L. 106-113, Div. B, § 1000(a)(5) [Title II, §
236], 113 Stat. 1536, 1501A-302 (Nov. 29, 1999); Pub.L. 110-314, Title I, §
203(b), 122 Stat. 3040 (Aug. 14, 2008)) (emphasis added). Subsection (c) refers to
“House Document No. 103-7,” a “list prepared by the Clerk of the House of
Representatives.” Id. That document is an over-200-page list of many hundreds of
“reports to which it is the duty of any officer or Department to make to Congress.”
See House Document No. 103-7 (transmittal letter).17 The list includes, at page
17 Available at clerk.house.gov/103/hd103007.pdf.
58
113, a reference to § 1402(a) of the Tribal Judgment Act (25 U.S.C. § 1402(a)),
which the Clerk describes as requiring reports “180 days after appropriation of
funds.”18 Because § 1402(a) is listed in House Document 103-7, the CFC
determined that it “ceased to be effective” in 2000, per the Reports Elimination Act
§ 3003(a). Wolfchild VIII, 101 Fed. Cl. at 90.
This interpretation is in error for three reasons. First, § 3003(a) expressly
applies only if two conditions are met: (1) the reporting requirement is listed in
House Document 103-7, and (2) the requirement is “annual,” “semiannual,” or
“regular” and “periodic” in nature. Pub.L. 104-66, Title III, § 3003(a), 109 Stat.
734. House Document 103-7 includes numerous statutes that, like § 1402(a) of the
Tribal Judgment Act, impose ad hoc reporting requirements; i.e., requirements
relating to events that do not occur on a “regular periodic” basis. If § 3003(a) is
construed to apply to all provisions listed in House Document 103-7 (not
specifically excepted), the terms “annual,” “semiannual,” and “regular periodic”
would be rendered superfluous. “It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or insignificant.” Golz v.
18This deadline is stated in the original Act. Pub.L. 93-134, § 2, 87 Stat. 466 (Oct.
19, 1973). In 1983, Congress changed the deadline to one year. Pub.L. 97-458,
§ 1, 96 Stat. 2512 (Jan. 12, 1983).
59
Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (quoting TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001)).
Second, there is also a “cardinal rule . . . that repeals by implication are not
favored.” TVA v. Hill, 437 U.S. 153, 189 (1978) (internal quotations and citations
omitted); accord Xianli Zhang v. United States, 640 F.3d 1358, 1368 (Fed. Cir.
2011). In § 3003(a) of the Reports Elimination Act, Congress acted to eliminate,
via sunset provision, “regular periodic” reporting requirements, on the apparent
understanding that requiring repeated reports to Congress, in perpetuity, for
informational purposes imposes unnecessary paperwork burdens. But Congress
expressed no clear intention to repeal ad hoc reporting requirements integral to the
operation of statutory programs. In holding that Congress nevertheless did so
“decimate” the Tribal Judgment Act, the CFC provided no explanation for why
Congress would have intended such result. Instead, the CFC implied that Congress
unwittingly “introduced . . . a defect.” Wolfchild VIII, 101 Fed. Cl. at 90. There is
no sound reason for implying an unwitting repeal not compelled by the plain terms
of a statute.
Third, there is also no sound basis for the CFC’s determination, in its ruling
denying reconsideration, that the phrase “regular periodic” can be construed to
include reports like those required under § 1402(a) of the Tribal Judgment Act.
The CFC observed: (1) that § 1402(a) imposes a deadline, (2) that select other ad
60
hoc reporting requirements cited in House Document 103-7 are described as not
having specific deadlines, and (3) that Congress exempted, from the operation of
§ 3003(a), at least one ad hoc reporting requirement with a deadline. Wolfchild IX,
101 Fed. Cl. at 96. From this, the CFC determined that the § 1402(a) reporting
requirement can be and should be deemed “regular” and “periodic” for purposes of
§ 3003(a).
Those terms cannot be stretched so far. As a modifier for “reports,” the
phrase “other regular periodic” plainly refers to reports that must be
“periodic[ally]” prepared on a “regular” interval, just like the “other” (“annual” or
“semiannual” ) reports specified in § 3003(a). This is a straightforward application
of the canon ejusdem generis, which means “of the same kind,” and dictates that
“where an enumeration of specific things is followed by a general word or phrase,
the general word or phrase . . . refer to things of the same kind as those
specified.” Nielson v. Shinseki, 607 F.3d 802, 807 (Fed. Cir. 2010).
In short, by its plain terms as construed under fundamental rules of statutory
interpretation, the Reports Elimination Act did not repeal § 1402(a) of the Tribal
Judgment Act. If permitted to stand, the CFC’s interpretation would unnecessarily
and improperly disrupt Congress’s carefully crafted process for determining the
distribution of tribal judgments and must be reversed
60
CONCLUSION
For the foregoing reasons, the judgment of the Court of Federal Claims
should be reversed and the case remanded for the dismissal of all claims and entry
of judgment in favor of the United States.
Respectfully submitted,
IGNACIA S. MORENO
Assistant Attorney General
/s John L. Smeltzer
JOHN L. SMELTZER
AARON AVILA
JODY SCHWARZ
Attorneys, Department of Justice
Environment & Natural Resources Divisi
P.O. Box 7415
Washington, DC 20044
[phone]
[e-mail]
May 25, 2011
D.J. No. 90-2-20-11099
61
STATUTORY ADDENDUM: 1888-1890 Acts
Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29 (“1888 Act”)
* * *
For the support of the full-blood Indians in Minnesota, belonging to the
Medawakanton [sic] band of Sioux Indians, who have resided in said State since
the twentieth day of May, A.D. eighteen hundred and eighty-six, and severed their
tribal relations, twenty thousand dollars, to be expended by the Secretary of the
Interior in the purchase, in such manner as in his judgment he may deem best, of
agricultural implements, cattle, horses and lands: Provided, That of this amount the
Secretary if he may deem it for the best interests of said Indians, may cause to be
erected for the use of the said Indians at the most suitable location, a school house,
at a cost not exceeding one thousand dollars: And provided also, That he may
appoint a suitable person to make the above-mentioned expenditures under his
direction, the expense of the same to be paid out of this appropriation.
Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93 (“1889 Act”)
* * *
For the support of the full-blood Indians in Minnesota heretofore belonging to the
Medawakanton [sic] band of 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 act of June twenty-ninth, eighteen
hundred and eighty-eight: Provided, That if the amount in this paragraph
appropriated, or any portion of the sum appropriated for the benefit of these same
Indians by said act of June twenty-ninth, eighteen hundred and eighty-eight, shall
not be expended within the fiscal year for which either sum was appropriated,
II
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 in this paragraph mentioned shall receive, as nearly as practicable an equal
amount in value of this appropriation and that made by said act of June twentyninth,
eighteen hundred and eighty-eight: And provided further, That as far as
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 Aug. 19, 1890, ch. 807, 26 Stat. 336, 349 (“1890 Act”)
* * *
For the support of the full and mixed blood Indians in Minnesota heretofore
belonging to the Medawakanton [sic] band of 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, eight thousand dollars, to be expended by the
Secretary of the Interior, as in his judgment he may think best, for such lands,
agricultural implements, buildings, seeds, cattle, horses, good, or clothing as may
be deemed best in the case of each of these Indians or families thereof: Provided,
That two thousand dollars of the above eight thousand dollars shall be expended
for the Prairie Island settlement of Indians in Goodhue County: Provided further,
That the Secretary of the Interior may appoint a suitable person to make the abovementioned
expenditure under his direction whose compensation shall not exceed
one thousand dollars; 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 in this paragraph mentioned shall receive, as nearly as practicable,
an equal amount in value of the appropriation: And provided further, That, as far as
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 or land against his will.
ll
302 96 FEDERAL CLAIMS REPORTER
utory claim pursuant to RCFC 12(b)(6) is
granted.
C. Defendant’s Motion for Judgment
Upon the Administrative Record15
In its motion for judgment upon the administrative
record, defendant argues that
substantial evidence supports the DFAS’s decision
to recoup plaintiff’s SSB in the amount
of $45,052.61. To the extent that the complaint
can be construed to challenge the
amount of the SSB, see Compl. ¶¶ 6, 9, 10–11
(alleging that (1) garnishments were made
without ‘‘verification of sums possibly owed,’’
(2) the DFAS failed to produce documentation
and had no records ‘‘to support [its]
claim,’’ and (3) ‘‘a garnishment without facts
to support the claim is illegal and unjust’’),
defendant is entitled to judgment upon the
administrative record. DFAS records indicate
that plaintiff received an SSB of
$45,052.61 in 1993. AR 1, 5, 9, 11. As
previously explained, plaintiff’s DD Form 214
indicated an SSB in the amount of $43,296.17.
AR 21; supra note 14. However, Mr. Heiney
indicated that $43,296.17 would have
been plaintiff’s SSB if he did not have prior
years of enlisted experience before becoming
an officer. AR 23 (Heiney Decl. ¶ 3). Because plaintiff did have enlisted experience
prior to becoming an officer, plaintiff’s correct
classification entitled him to an SSB in
the amount of $45,052.61. Id. (Heiney Decl.
¶¶ 3–4). Plaintiff ultimately received an SSB
in the amount of $45,052.61. Id. at 1, 5, 9,
11, 22. Furthermore, plaintiff himself indicated,
in correspondence with the DFAS in
April 2009, that his SSB was approximately
$45,000. Compl. Ex. at 2. The DFAS’s decision
to recoup $45,052.61, therefore, is supported
by both evidence in the administrative
record and plaintiff’s personal recollection of
the amount of his SSB. Accordingly, the
court, in the alternative, that defendant’s motion
for judgment upon the administrative
record is granted.
V. CONCLUSION
For the reasons set forth above, it is hereby
ordered:
15. Having dismissed the complaint pursuant to
RCFC 12(b), the court need not reach defendant’s
motion for judgment upon the administrative
record. Nevertheless, the court addresses
the issues raised by defendant as an alternative
holding.

1. Plaintiff’s application to proceed in forma
pauperis is DENIED.
2. Plaintiff motion for immediate preliminary
injunction is DENIED.
3. Defendant’s motion to dismiss is
GRANTED. The Clerk of Court is directed
to DISMISS WITHOUT PREJUDICE
those portions of the complaint over which
the court lacks jurisdiction and to DISMISS
WITH PREJUDICE those portions
of the complaint over which the court possesses
jurisdiction.
4. Alternatively, to the extent that the
complaint can be construed to challenge
the amount of plaintiff’s SSB, defendant’s
motion for judgment upon the administrative
record is GRANTED.
The Clerk of Court is directed to enter
judgment accordingly. No costs.

,

Sheldon Peters WOLFCHILD,
et al., Plaintiffs,
v.
UNITED STATES, Defendant.
Nos. 03–2684L, 01–568L.
United States Court of Federal Claims.
Dec. 21, 2010.
Background: Lineal descendants of Mdewakanton
Sioux who were loyal to United
States during 1862 Sioux uprising in
Minnesota sued United States for, inter
alia, breach of fiduciary duty based upon
government’s management of property
originally provided for benefit of loyal
Mdewakanton. The United States Court of
Federal Claims, Charles F. Lettow, J., 62
Fed.Cl. 521, ruled that government had
breached its fiduciary duties, and subse-
A1
WOLFCHILD v. U.S. 303
Cite as 96 Fed.Cl. 302 (2010)

quently, 68 Fed.Cl. 779, denied reconsideration
and, 78 Fed.Cl. 472, certified questions
for interlocutory appeal. Government
filed interlocutory appeal. The Court of
Appeals for the Federal Circuit, 260 Fed.
Appx. 261, granted leave to appeal, and,
559 F.3d 1228, reversed and remanded.
After plaintiffs moved to amend their complaints,
government moved to dismiss and
plaintiffs cross-moved for partial summary
judgment.
Holdings: The Court of Federal Claims,
Lettow, J., held that:
(1) amendment of complaint to add claims
based upon Appropriation Acts’ use restrictions
was not precluded on
grounds of futility;
(2) Indian Trust Accounting Statute
(ITAS) applied to toll six-year statute
of limitations for proposed claims
based upon Appropriations Acts’ use
restrictions;
(3) Appropriations Acts created moneymandating
duty providing basis for
plaintiffs’ claims under Indian Tucker
Act;
(4) plaintiffs could base their claims on use
restrictions contained in Appropriations
Acts, even though Acts did not
specify how broadly term ‘‘family’’ was
to be interpreted;
(5) Act authorizing transfer of certain
lands to wildlife refuge permitted disbursement
of funds paid to three Indian
communities in Minnesota;
(6) funds derived, prior to passage of 1980
Act, from lands purchased with monies
appropriated under Appropriations
Acts had to be distributed to lineal
descendants of loyal Mdewakanton;
and
(7) Indian communities, rather than lineal
descendants of loyal Mdewakanton,
were entitled to any income derived
from lands purchased with appropriated
funds following passage of 1980 Act.
Ordered accordingly.
1. Statutes O164
Where the legislature supplements or
amends an act so as to specify that a beneficiary
of the subsequent act may not receive
relief under both the prior and subsequent
act, there is no conflict between the two
statutes, and an implied repeal of the prior
act cannot be inferred.
2. Federal Courts O1111
Decision to grant or deny amendment of
a complaint or answer is within the discretion
of the trial court, but if the underlying facts
or circumstances relied upon by plaintiff may
be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on
the merits. RCFC, Rule 15(a)(2), 28
U.S.C.A.
3. Federal Courts O1111
Absent a reason, such as undue delay,
bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue
prejudice to the opposing party by virtue
of allowance of the amendment, or futility of
amendment, motion to amend pleading
should be granted. RCFC, Rule 15(a)(2), 28
U.S.C.A.
4. Federal Courts O1071
Jurisdiction must be established as a
threshold matter before the Court of Federal
Claims may proceed with the merits of action.
5. Federal Courts O1113
Plaintiffs bear the burden of establishing
that Court of Federal Claims has subject
matter jurisdiction over their claim.
6. Federal Courts O1111
In undertaking an analysis of subject
matter jurisdiction, the court must accept as
true the facts alleged in the complaint and
draw all reasonable inferences in favor of the
plaintiffs.
7. United States O125(3)
Jurisdiction over a claim against the
United States requires a waiver of sovereign
immunity combined with a cause of action
falling within the terms of that waiver.
A2
304 96 FEDERAL CLAIMS REPORTER
8. United States O125(5)
Waiver of sovereign immunity of United
States must be unequivocally expressed.
9. Federal Courts O1081
Claims that would ‘‘otherwise be cognizable
in the Court of Federal Claims if the
claimant were not an Indian tribe, band or
group’’ encompassed by waiver of United
States’s sovereign immunity under Indian
Tucker Act include those founded upon the
Tucker Act. 28 U.S.C.A. §§ 1491(a)(1), 1505.
10. Federal Courts O1081
Although it serves as a waiver of sovereign
immunity by United States, the Indian
Tucker Act does not itself create a substantive
right enforceable against the government
by a claim for money damages. 28
U.S.C.A. § 1505.
11. Federal Courts O1081
As with the Tucker Act, plaintiff grounding
its claim against United States on the
Indian Tucker Act must demonstrate that
some other source of law creates a moneymandating
right or duty that falls within the
ambit of the waiver of sovereign immunity;
this other source of law need not explicitly
provide that the right or duty it creates is
enforceable through a suit for damages, but
it triggers liability only if it can be fairly
interpreted as mandating compensation by
the federal government. 28 U.S.C.A.
§§ 1491(a)(1), 1505.
12. Federal Courts O1072
To establish Tucker Act jurisdiction, it is
enough that a statute creating a Tucker Act
right be reasonably amenable to the reading
that it mandates a right of recovery in damages;
a fair inference will do. 28 U.S.C.A.
§ 1491(a)(1).
13. Federal Courts O1072
If Court of Federal Claims determines
that the source of law upon which plaintiffs
rely to establish Tucker Act jurisdiction is
not money-mandating, court must dismiss
the claim for lack of subject matter jurisdiction.
28 U.S.C.A. § 1491(a)(1).

14. Federal Courts O1081
For claims arising under the Tucker Act
or the Indian Tucker Act, if the court concludes
that the facts as pled do not fit within
the scope of a statute that is money-mandating,
the court shall dismiss the claim on the
merits for failure to state a claim upon which
relief can be granted. 28 U.S.C.A.
§§ 1491(a)(1), 1505; RCFC, Rule 12(b)(6), 28
U.S.C.A.
15. Federal Courts O1111
Where an amendment would be futile, a
court should disallow plaintiff’s motion to
modify its complaint. RCFC, Rule 15(a)(2),
28 U.S.C.A.
16. Federal Courts O1111
In assessing futility of a proposed
amendment of a complaint, the court should
apply the same standard of legal sufficiency
as applies under rule governing motions to
dismiss for failure to state claim upon which
relief may be granted; thus, amendment to
add claim is ‘‘futile’’ if amendment fails to
state claim upon which relief can be granted.
RCFC, Rules 12(b)(6), 15(a)(2), 28 U.S.C.A.
See publication Words and Phrases
for other judicial constructions and definitions

17. Federal Courts O949
‘‘Law of the case’’ doctrine provides that
when a case has been once decided by a
superior court and remanded to the lower
court, whatever was before the superior
court and disposed of by its decree is considered
finally settled; the lower court is bound
by the decree as the law of the case, and
must carry it into execution, according to the
mandate.
See publication Words and Phrases
for other judicial constructions and definitions.
18. Federal Courts O949
Law of the case doctrine did not apply
to establish, for purposes of defendant’s futility
defense to plaintiffs’ motion to amend
complaint, that plaintiffs had viable claims
predicated on statutory use restrictions in
Appropriations Acts recognized by Court of
Appeals on prior appeal where Court of Appeals,
in its ruling on prior appeal, explicitly
abstained from addressing merits of any

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claims that plaintiffs would have under use
restrictions. Act June 29, 1888, § 1, 25 Stat.
217; Act March 2, 1889, § 1, 25 Stat. 980; Act
Aug. 19, 1890, § 1, 26 Stat. 336; RCFC,
Rules 12(b)(6), 15(a)(2), 28 U.S.C.A.
19. Federal Courts O1111
Lineal descendants of Mdewakanton
Sioux who were loyal to United States during
1862 Sioux uprising in Minnesota had legally
viable claims against United States based
upon their alleged rights, under statutory
use restrictions, to funds that were derived
from lands purchased with monies provided
via Appropriations Acts to benefit loyal Mdewakanton
and their descendants and alleged
improper disbursement, by Department of
the Interior, of such funds to three Indian
communities in Minnesota, rather than eligible
Mdewakanton, and therefore amendment
of complaint to add such claims was not
precluded on grounds of futility. Act June
29, 1888, § 1, 25 Stat. 217; Act March 2, 1889,
§ 1, 25 Stat. 980; Act Aug. 19, 1890, § 1, 26
Stat. 336; RCFC, Rules 12(b)(6), 15(a)(2), 28
U.S.C.A.

20. Indians O141(2), 152, 197
Passage of 1980 Act, which provided that
government would thereafter hold in trust,
for three Indian communities located in
Minnesota, lands which, pursuant to Appropriations
Acts, were purchased with monies
appropriated for the benefit of Mdewakanton
Sioux who were loyal to United States during
1862 Sioux uprising in Minnesota and their
lineal descendants, did not affect claims of
lineal descendants, based upon statutory use
restrictions in Appropriations Acts, to funds
derived from affected lands prior to passage
of 1980 Act, which was silent as disposition of
such funds, and instead applied only to lands
themselves. Act June 29, 1888, § 1, 25 Stat.
217; Act March 2, 1889, § 1, 25 Stat. 980; Act
Aug. 19, 1890, § 1, 26 Stat. 336, Act Dec. 19,
1980, § 1, 94 Stat. 3262.
21. Statutes O188
When interpreting a statute, the court
must look first to the statutory language.
22. Statutes O219(2)
Where the text of statute does not address
a particular issue, an agency’s interpretation


of the statute as contained in informal
opinion letters or otherwise not embodied in
regulations is entitled to respect on judicial
review, but only to the extent that those
interpretations have the power to persuade.

23. Statutes O219(6.1)
Skidmore deference did not apply in determining
whether lineal descendants of
Mdewakanton Sioux who were loyal to United
States during 1862 Sioux uprising in
Minnesota had viable claims against United
States based upon their alleged rights, under
statutory use restrictions, to funds that were
derived from lands purchased with monies
appropriated to benefit loyal Mdewakanton
and their descendants and alleged improper
disbursement, by Department of the Interior,
of derived funds to three Indian communities
located in Minnesota, rather than eligible
Mdewakanton, where Department simply
presumed that it could distribute funds to
three communities on basis of subsequent
Act providing for government to hold affected
lands in trust for three communities, contrary
to its earlier conclusions regarding
funds’ status and proper ownership, and pursuant
to unreasonable construction of Act.
Act June 29, 1888, § 1, 25 Stat. 217; Act
March 2, 1889, § 1, 25 Stat. 980; Act Aug. 19,
1890, § 1, 26 Stat. 336, Act Dec. 19, 1980,
§ 1, 94 Stat. 3262; RCFC, Rules 12(b)(6),
15(a)(2), 28 U.S.C.A.
24. Statutes O219(1, 3)

In applying limited Skidmore deference
given to agency’s interpretation of statute as
contained in informal opinion letters or otherwise
not embodied in regulations, court
considers thoroughness evident in agency’s
consideration, validity of its reasoning, its
consistency with earlier and later pronouncements,
and all those factors which give it
power to persuade, if lacking power to control.
25. Statutes O219(1)
In applying limited Skidmore deference
given to agency’s interpretation of statute as
contained in informal opinion letters or otherwise
not embodied in regulations, court
considers the extent to which the agency’s
interpretation relies upon its specialized ex-

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306 96 FEDERAL CLAIMS REPORTER

perience and broader investigations and information.
26. Statutes O211
Although the title of a statute cannot
limit the plain meaning of the text, statutory
titles and section headings are tools available
for the resolution of a doubt about the meaning
of statute.
27. Federal Courts O1106
Funds which were derived from lands
purchased with monies provided via Appropriations
Acts to benefit Mdewakanton Sioux
who were loyal to United States during 1862
Sioux uprising in Minnesota and their lineal
descendants, and which were placed by government
into proceeds-of-labor and individual
Indian money (IIM) accounts, were held ‘‘in
trust,’’ as required for Indian Trust Accounting
Statute (ITAS) to apply to toll six-year
statute of limitations for claims in which descendants
asserted rights to funds based
upon statutory use restrictions in Appropriations
Acts and alleged improper disbursement
of funds to three Indian communities
located in Minnesota, rather than eligible
Mdewakanton. 28 U.S.C.A. § 2501; 31
U.S.C.A. § 1321(a)(20); Department of the
Interior and Related Agencies Appropriations
Act, 2004, 25 U.S.C.A. § 4011 note; Act
June 29, 1888, § 1, 25 Stat. 217; Act March 2,
1889, § 1, 25 Stat. 980; Act Aug. 19, 1890,
§ 1, 26 Stat. 336; 25 C.F.R. § 115.002.
28. Federal Courts O1104
Since the six-year statute of limitations
applicable to suits against United States in
Court of Federal Claims circumscribes scope
of government’s waiver of sovereign immunity,
it is jurisdictional in nature and must be
construed strictly. 28 U.S.C.A. § 2501.
29. Federal Courts O1106
Court addressing statute of limitations
defense to action against United States in
Court of Federal Claims may not consider
whether a case warrants equitable tolling, or
imply exceptions to the limitations period.
28 U.S.C.A. § 2501.
30. Indians O141(2)
Where the government holds any Indian
money, there is a strong presumption that

those funds are held in trust, and this trust
relationship extends not only to Indian tribes
as governmental units, but to tribal members
living collectively or individually, on or off
the reservation.
31. Federal Courts O1106
Claims in which lineal descendants of
Mdewakanton Sioux who were loyal to United
States during 1862 Sioux uprising in
Minnesota asserted rights, under statutory
use restrictions imposed by Appropriations
Acts, to funds which were derived from lands
purchased with appropriated monies to benefit
loyal Mdewakanton and their descendants,
and which were held in trust by government
until their allegedly improper disbursement,
concerned ‘‘losses to or mismanagement of’’
trust funds, as required for Indian Trust
Accounting Statute (ITAS) to apply to toll
six-year statute of limitations otherwise governing
claims. 28 U.S.C.A. § 2501; 31
U.S.C.A. § 1321(a)(20); Department of the
Interior and Related Agencies Appropriations
Act, 2004, 25 U.S.C.A. § 4011 note; Act
June 29, 1888, § 1, 25 Stat. 217; Act March 2,
1889, § 1, 25 Stat. 980; Act Aug. 19, 1890,
§ 1, 26 Stat. 336; 25 C.F.R. § 115.002.
32. Indians O141(2), 197
Secretary of the Interior acted under
authority conferred by Appropriations Acts
that provided for funds to be expended for
the benefit of Mdewakanton Sioux who
were loyal to United States during 1862
Sioux uprising in Minnesota, and their lineal
descendants, when Secretary leased
lands purchased with appropriated funds to
non-eligible individuals and obtained money
as a result, and therefore Secretary was
statutorily required to handle funds obtained
in manner that accorded with congressional
mandates contained in Appropriation
Acts, including requirements that
benefits be distributed to loyal Mdewakanton
and their families and that such benefits
be conferred in as equal an amount as
practicable. Act June 29, 1888, § 1, 25
Stat. 217; Act March 2, 1889, § 1, 25 Stat.
980; Act Aug. 19, 1890, § 1, 26 Stat. 336.
33. Administrative Law and Procedure
O305
Every agency decision must be anchored
in the language of one or more statutes the
agency is charged to implement.
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307

34. United States O85

Under the Appropriations Clause of the
United States Constitution, funds from the
Treasury cannot be used for purposes other
than those permitted by the appropriating
statute. U.S.C.A. Const. Art. 1, § 9, cl. 7.
35. United States O105
Appropriations Acts that provided for
funds to be expended for the benefit of Mdewakanton
Sioux who were loyal to United
States during 1862 Sioux uprising in Minnesota
and their lineal descendants created
money-mandating duty providing basis for
descendants’ claims under Indian Tucker Act
to funds derived from lands purchased with
appropriated monies; Acts consistently used
word ‘‘shall,’’ appropriated funds were considered
by Congress as substitution for treaty
benefits of which loyal Mdewakanton had
been deprived, and Department of the Interior
had consistently considered appropriated
funds, lands, and funds derived from lands as
being held only for benefit of eligible Mdewakanton,
prior to its challenged decision to
disburse disputed funds to three Minnesota
Indian communities, rather than eligible
Mdewakanton. 28 U.S.C.A. § 1505; Act
June 29, 1888, § 1, 25 Stat. 217; Act March 2,
1889, § 1, 25 Stat. 980; Act Aug. 19, 1890,
§ 1, 26 Stat. 336.
36. Federal Courts O1081
Where the statutory text leaves the government
no discretion over payment of
claimed funds, Congress has provided a money-
mandating source for jurisdiction in Court
of Federal Claims under Indian Tucker Act.
28 U.S.C.A. § 1505.
37. Federal Courts O1072
Statutes O227
Use of the word ‘‘may’’ in a statute leads
to the presumption that the government has
discretion over the payment of funds and
does not owe a money-mandating duty to
plaintiff supporting Tucker Act jurisdiction,
but presumption of governmental discretion
in statute may be rebutted by the intent of
Congress and other inferences that the court
may rationally draw from the structure and
purpose of the statute. 28 U.S.C.A.
§ 1491(a)(1).

38. Federal Courts O1072
A statute is not wholly discretionary,
and so can establish money-mandating duty
supporting Tucker Act jurisdiction, even if it
uses the word ‘‘may’’ when an analysis of
congressional intent or the structure and
purpose of the statute reveal one of the
following: (1) the statute has clear standards
for paying money to recipients, (2) the statute
specifies precise amounts to be paid, or
(3) the statute compels payment once certain
conditions precedent are met. 28 U.S.C.A.
§ 1491(a)(1).
39. Indians O141(2), 197

Terms ‘‘family’’ and ‘‘families’’ included
in Appropriations Acts requiring appropriated
funds to be expended for benefit of Mdewakanton
Sioux who were loyal to United
States during 1862 Sioux uprising in Minnesota
and their families encompassed lineal
descendants of loyal Mdewakanton, such that
lineal descendants could base their claims to
funds derived from lands purchased with appropriated
funds on use restrictions contained
in Appropriations Acts, even though
Acts did not specify how broadly term ‘‘family’’
was to be interpreted. 28 U.S.C.A.
§ 1505; Act June 29, 1888, § 1, 25 Stat. 217;
Act March 2, 1889, § 1, 25 Stat. 980; Act
Aug. 19, 1890, § 1, 26 Stat. 336.
40. Indians O109
Statutes are to be construed liberally in
favor of Indians, with ambiguous provisions
interpreted to their benefit.

41. Indians O141(2), 197
Passage of Act authorizing transfer of
Indian lands to wildlife refuge, pursuant to
which payment received was allocated to be
paid for benefit of Mdewakanton and Wahpakoota
Bands generally, terminated entitlement
to funds derived from affected lands of
lineal descendants of Mdewakanton Sioux
who were loyal to United States during 1862
Sioux uprising in Minnesota, which was
based upon restrictions contained in Appropriations
Acts pursuant to which lands were
purchased for benefit of loyal Mdewakanton
and their lineal descendants, and also permitted
Secretary of the Interior to disburse
funds paid to three Indian communities in

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96 FEDERAL CLAIMS REPORTER

Minnesota. Act June 29, 1888, § 1, 25 Stat.
217; Act March 2, 1889, § 1, 25 Stat. 980; Act
Aug. 19, 1890, § 1, 26 Stat. 336; 1944 Act,
§ 2, 58 Stat. 274.
42. Indians O141(2), 197
Discretion granted to Secretary of the
Interior pursuant to Appropriations Acts
which provided for appropriated monies to
be expended for the benefit of Mdewakanton
Sioux who were loyal to United States during
1862 Sioux uprising in Minnesota and
their lineal descendants, pursuant to which
Secretary was to use his judgment in administering
benefits of Acts, did not modify or
abrogate Acts’ other restrictions, but rather
permitted Secretary to determine precise
manner of implementing Acts, and therefore
Secretary did not have authority to override
Acts’ mandates to administer funds for benefit
of loyal Mdewakanton and their lineal
descendants and to distribute funds as equally
as possible, and was required to distribute
funds derived from lands purchased with appropriated
funds to lineal descendants of loyal
Mdewakanton. Act June 29, 1888, § 1, 25
Stat. 217; Act March 2, 1889, § 1, 25 Stat.
980; Act Aug. 19, 1890, § 1, 26 Stat. 336.

43. Statutes O206

Statute ought, upon the whole, to be so
construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous,
void, or insignificant.
44. Federal Courts O1072
A statute can be money-mandating, so as
to support jurisdiction of Court of Federal
Claims under Tucker Act, without stating a
precise amount to be paid. 28 U.S.C.A.
§ 1491.
45. Indians O141(2), 152, 197
Passage of 1980 Act, which provided that
government would thereafter hold in trust,
for three Indian communities located in
Minnesota, lands which, pursuant to earlier
Appropriations Acts, had been purchased
with appropriated monies for the benefit of
Mdewakanton Sioux who were loyal to United
States during 1862 Sioux uprising in
Minnesota and their lineal descendants, prevented
further application of use restrictions
imposed by Appropriations Acts to affected

lands and funds derived from them, and
therefore Indian communities, rather than
lineal descendants of loyal Mdewakanton,
were subsequently entitled to any income
derived from lands. Act June 29, 1888, § 1,
25 Stat. 217; Act March 2, 1889, § 1, 25 Stat.
980; Act Aug. 19, 1890, § 1, 26 Stat. 336, Act
Dec. 19, 1980, § 1, 94 Stat. 3262.
46. Federal Courts O1081
Indians O141(2), 197

Congress was free to define as it
deemed appropriate beneficiary class of Appropriations
Acts that provided for funds to
be expended for benefit of Mdewakanton
Sioux who were loyal to United States during
1862 Sioux uprising in Minnesota and their
lineal descendants, and therefore issue of
whether manner selected for ascertaining lineal
descendants resulted in exclusion of some
individuals who might otherwise have qualified
was not properly before Court of Federal
Claims in action addressing lineal descendants’
entitlement to funds derived from
lands purchased with appropriated monies.
Act June 29, 1888, § 1, 25 Stat. 217; Act
March 2, 1889, § 1, 25 Stat. 980; Act Aug. 19,
1890, § 1, 26 Stat. 336.
47. Federal Courts O1080, 1081

Any money judgment issued by Court of
Federal Claims in action addressing entitlement
to funds derived from lands purchased
with monies appropriated for use for benefit
of Mdewakanton Sioux who were loyal to
United States during 1862 Sioux uprising in
Minnesota and their lineal descendants would
not be directly tied to tribal governing documents
that descendants sought to set aside,
and therefore court lacked jurisdiction to order
such equitable relief. 28 U.S.C.A.
§§ 1491(a)(2), 1505.
48. Federal Courts O1080
While limited equitable relief sometimes
is available in Tucker Act suits before Court
of Federal Claims, that equitable relief must
be an incident of and collateral to a money
judgment. 28 U.S.C.A. § 1491(a)(2).
Erick G. Kaardal, Mohrman & Kaardal,
PA, Minneapolis, MN, for Wolfchild plain-

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tiffs. With him on the briefs were William
F. Mohrman, Mohrman & Kaardal, P.A.,
Minneapolis, MN.
Jody H. Schwarz, Trial Attorney, Natural
Resources Section, Environment and Natural
Resources Division, United States Department
of Justice, Washington, D.C., for defendant.
With her on the briefs were Ignacia S.
Moreno, Assistant Attorney General, and
Sam Costello and Daniel Steele, Trial Attorneys,
Environment and Natural Resources
Division, United States Department of Justice,
Washington, D.C. Of counsel was James
Porter, Office of the Solicitor, Department of
the Interior, Washington, D.C.
John Ernst Jacobson, Jacobson, Buffalo,
Magnuson, Anderson & Hogen, P.C., St.
Paul, MN, for intervening plaintiff Lower
Sioux Indian Community.
Jack E. Pierce, Pierce Law Firm, PA,
Minneapolis, MN, for the Cermak plaintiffs
and for the Stephens, R. Cermak, J. Cermak,
Henderson, Klingberg, Alkire, Arnold, and
Godoy groups of intervening plaintiffs.
Kelly H. Stricherz, Vermillion, SD, for the
Mozak group of intervening plaintiffs.

Garrett J. Horn, Horn Law Office, Yankton,
SD, for the Saul, Trudell, Taylor, Ferris,
Henry, and Vassar groups of intervening
plaintiffs.
Creighton A. Thurman, Yankton, SD, for
the Cournoyer, Robinette, Kimbell, French,
and Wanna groups of intervening plaintiffs.
Elizabeth T. Walker, Walker Associates,
Alexandria, VA, for the anonymous Walker
group of intervening plaintiffs.
Robin L. Zephier, Abourezk & Zephier,
PC, Rapid City, SD, for the Zephier group of
intervening plaintiffs.
Larry Leventhal, St. Paul, MN, for the
Burley group of intervening plaintiffs.
Wood R. Foster, Jr., Siegel, Brill, Greupner,
Duffy & Foster, PA, Minneapolis, MN,
for the Lafferty, Blaeser, Whipple, and Lowe
groups of intervening plaintiffs.
Michael W. Ellwanger, Rawlings, Nieland,
Probasco, Killinger, Ellwanger, Jacobs &
Mohrhauser, LLP, Sioux City, IA, for the

Enyard and Kitto groups of intervening
plaintiffs.
Bernard J. Rooney, Amherst, WI, for the
Rooney group of intervening plaintiffs.
Scott A. Johnson, Johnson Law Group,
Minnetonka, MN, for the Rocque group of
intervening plaintiffs.
James L. Blair, Renaud, Cook, Drury, Mesaros,
PA, Phoenix, AZ, for the anonymous
Blair group of intervening plaintiffs. With
him on the briefs was Barry P. Hogan, Renaud
Cook Drury Mesaros, PA, Phoenix, AZ.
Gary J. Montana, Montana & Associates,
Osseo, WI, for the Julia DuMarce group of
intervening plaintiffs.
Nicole N. Emerson, Lynn, Jackson, Shultz
& Lebrun, PC, Sioux Falls, SD, for the Garreau
group of intervening plaintiffs.
Douglas Kettering, Kettering Law Office,
Yankton, SD, for the Ke Zephier group of
intervening plaintiffs.

Randy V. Thompson, Nolan, MacGregor,
Thompson & Leighton, St. Paul, MN, for the
Abrahamson group of intervening plaintiffs.
Frances Felix, pro se, Minneapolis, MN,
for herself and members of her immediate
family as intervening plaintiffs.
Royce Deryl Edwards, Jr., Joplin, MO, for
the Vadnais group of intervening plaintiffs.
Rory King, Bantz, Gosch & Cremer, LLC,
Aberdeen, SD, for the Marvel Jean DuMarce
group and the Youngbear group.
Brian L. Radke, Radke Law Office, P.C.,
Sioux Falls, SD for the Schroder group of
intervening plaintiffs.

OPINION AND ORDER

LETTOW, Judge.
This case arises under the Indian Tucker
Act, 28 U.S.C. § 1505, and comes before the
court for proceedings on remand from the
Court of Appeals for the Federal Circuit
after that court’s decision on an interlocutory
appeal of questions certified by this
court. See Wolfchild v. United States, 559
F.3d 1228 (Fed.Cir.2009) (‘‘Wolfchild VI ’’),
cert. denied, ––– U.S. ––––, 130 S.Ct. 2090,
176 L.Ed.2d 722, 755 (2010). The issues on

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310 96 FEDERAL CLAIMS REPORTER

remand are complex, reflecting both the convoluted
and lengthy history of the federal
government’s relationship with the group of
Indians who are plaintiffs and the extensive
prior proceedings in this litigation.
INTRODUCTION
Plaintiffs are lineal descendants of Mdewakanton
Sioux Indians who were loyal to
the United States and assisted white settlers
in Minnesota during the 1862 Sioux uprising
(‘‘the loyal Mdewakanton’’ or ‘‘1886 Mdewakanton’’).
See Wolfchild v. United States, 62
Fed.Cl. 521, 524 (2004) (‘‘Wolfchild I ’’). Approximately
20,750 persons have joined in
this litigation as plaintiffs.1 On October 27,
2004, the court granted partial summary
judgment for the plaintiffs, holding that a
trust for the benefit of the loyal Mdewakanton
and their lineal descendants was created
in connection with and as a consequence of
appropriations statutes enacted in 1888, 1889,
and 1890 (‘‘Appropriation Acts’’), providing
money to the Department of the Interior
(‘‘the Department’’) for the benefit of the
loyal Mdewakanton and their families. See
Wolfchild I, 62 Fed.Cl. at 555.2

The court concluded that the relationship
created pursuant to the Appropriations Acts
contained the three traditional elements of a
trust: a trustee (the United States), specific
beneficiaries (the 1886 Mdewakanton and
their lineal descendants), and trust property
acquired by the Department using the appropriated
funds (the 1886 lands, improvements
to those lands, and funds derived from
those lands). See Wolfchild I, 62 Fed.Cl. at
541. The court found additional evidence
that a trust was created by looking to the
arrangements made by the Department for
the use of the 1886 lands by the loyal MdeMdewakanton
and their lineal descendants over
the years following acquisition of those lands.
See id. at 541–43. Ninety years of detailed
management of the 1886 lands by the Department,
including its assigning rights of
use to particular loyal Mdewakanton, monitoring
beneficiaries’ use of the lands, and
leasing non-assigned land to third parties,
and the Department’s own repeated characterization
of the 1886 lands as being held ‘‘in
trust’’ for the loyal Mdewakanton, further
persuaded the court that a trust relationship
was created as a consequence of the assignment
system. See id.3
The court also held that the Act of December
19, 1980, Pub.L. No. 96–557, 94 Stat.
3262 (‘‘1980 Act’’), which provided that the
government would thereafter hold the 1886
lands in trust for three Indian communities
located in Minnesota (‘‘the three communities’’)
4 did not alter or terminate the trust
for the loyal Mdewakanton. See Wolfchild I,
62 Fed.Cl. at 543–44. Consequently, the
court concluded that actions taken in December
1980 and thereafter, including the Department
of Interior’s disbursement of funds
derived from the 1886 lands to the three
communities, constituted a breach of that
trust. See id. at 555.
Approximately two and one half years after
the court’s ruling in Wolfchild I, the
government interposed a motion to certify
the court’s decisions in Wolfchild I, Wolfchild
II, and Wolfchild III for interlocutory appeal
under 28 U.S.C. § 1292(d). See Wolfchild v.
United States, 78 Fed.Cl. 472 (2007)
(‘‘Wolfchild V ’’). The court granted the government’s
motion in part and certified the
following two questions for interlocutory review
by the Court of Appeals for the Federal
Circuit:
1. The Wolfchild plaintiffs number about 7,500
persons, and 41 separate groups totaling about
13,250 people were granted leave to intervene as
plaintiffs. See Wolfchild v. United States, 77 Fed.
Cl. 22, 31–35 (2007) (‘‘Wolfchild IV ’’).
2. The three Appropriation Acts are: the Act of
June 29, 1888, ch. 503, 25 Stat. 217, 228–29, the
Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992–
93, and the Act of Aug. 19, 1890, ch. 807, 26
Stat. 336, 349.
3. The government’s motion for reconsideration
of the trust holding was denied in Wolfchild v.United States, 68 Fed.Cl. 779, 801 (2005)
(‘‘Wolfchild II ’’). The court addressed procedural
issues in Wolfchild v. United States, 72
Fed.Cl. 511 (2006) (‘‘Wolfchild III ’’) and also in
Wolfchild IV.
4. The three Indian communities are the Lower
Sioux Indian Community, the Shakopee Mdewakanton
Sioux (Dakota) Community, and the
Prairie Island Indian Community in Minnesota.
See 94 Stat. 3262.

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(1) Whether a trust was created in connection
with and as a consequence of the
1888, 1889, and 1890 Appropriations
Acts for the benefit of the loyal Mdewakanton
and their lineal descendants,
which trust included land, improvements
to land, and monies as the corpus;
and
(2) If the Appropriations Acts created
such a trust, whether Congress terminated
that trust with enactment of the
1980 Act.
The Court of Appeals granted interlocutory
appeal of those two questions and in due
course reversed this court’s conclusion regarding
both certified questions. See
Wolfchild VI, 559 F.3d 1228, 1231. Although
the Court of Appeals acknowledged that ‘‘Interior
Department officials at times characterized
the 1886 lands as being held in trust
for the 1886 Mdewakantons and their descendants[,]’’
id. at 1241, it decided that ‘‘the key
question regarding the rights at issue in this
case is not whether the 1886 lands were held
‘in trust’ for the 1886 Mdewakanton descendants
to whom they were assigned, but rather
what rights were conferred in the assigned
lands.’’ Id. at 1248–49. The Court of
Appeals held that that the Appropriations
Acts did not create a trust for the benefit of
the loyal Mdewakanton nor did they vest any
title, legal or otherwise, in that group. Id. at
1240–41, 1249. Rather, it determined that
‘‘the Appropriations Acts are best interpreted
as merely appropriating funds subject to a
statutory use restriction.’’ Id. at 1240 (emphasis
added). Under that view of the Appropriations
Acts, the Court of Appeals concluded
that the 1886 lands ‘‘were being held
by the Department of the Interior for use by
the 1886 Mdewakantons and their descendants
pending an ultimate legislative determination
as to how the ownership interests in the lands should be allocated.’’ Id. at 1255.
Regarding the second certified question, the
Court of Appeals found that the 1980 Act

furnished that ‘‘ultimate legislative determination’’
by creating a trust for the benefit of
the three communities, thereby terminating
any trust that would have been created by
the Appropriations Acts. Id. at 1255, 1259–60.
The Court of Appeals remanded the case to
this court to address the issue of ‘‘whether it
was lawful for the Interior Department, following
the 1980 Act, to transfer to the three
communities approximately $60,000 in funds
that had been collected as proceeds from the
sale, use, or leasing of certain of the 1886
lands, given that the 1980 Act was silent as
to the disposition of those funds.’’ Id. at
1259 n. 14.
In light of the decision of the Court of
Appeals and its remand to this court, plaintiffs
and intervening plaintiffs have filed motions
to amend their complaints. The government
filed a motion to dismiss, arguing
that this court lacks subject matter jurisdiction
and that the complaint fails to state a
claim upon which relief may be granted.
Plaintiffs responded with a cross-motion for
partial summary judgment respecting their
entitlement to the money previously held by
Treasury and other monies derived from the
1886 lands.
For the reasons stated below, the government’s
motion to dismiss is denied, and plaintiffs’
and intervening plaintiffs’ motions to
amend their complaints are granted. Plaintiffs’
cross-motion for partial summary judgment
is granted in part and denied in part.
FACTS5
The Mdewakanton Sioux
Prior to August 1851, the Minnesota Sioux
lived along the Mississippi River, stretching
from the Territory of Dakota to the Big
Sioux River. See Medawakanton and Wahpakoota
Bands of Sioux Indians v. United
States, 57 Ct.Cl. 357, 359 (1922).6 Originally,

5. Thousands of pages of historical documents
have been filed in connection with the pending
motions and the prior motions dating back to
2004 in this litigation. The court has drawn
upon that historical record in developing the
recitation of facts which follows. Unless otherwise
noted, the facts set out are undisputed. No
authenticity objection has been raised to any of
the historical documents. The arguments of the
parties focus on the inferences to be drawn from
the resulting record.
6. Some prior documents and decisions refer to
the Mdewakanton Sioux as ‘‘Medawakanton.’’
The court does not revise or correct the spelling
in those instances.

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312 96 FEDERAL CLAIMS REPORTER

these Sioux were all Mdewakantons, but they
later split into four bands, known as the
Mdewakanton and the Wahpakoota (together
comprising the ‘‘lower bands’’), and the Sisseton
and the Wahpeton (known as the ‘‘upper
bands’’ or ‘‘Santee Sioux’’). Id. On September
29, 1837, the Sioux entered a treaty with
the United States by which they ceded ‘‘to
the United States all their land, east of the
Mississippi River, and all their islands in said
river[,]’’ in consideration of the United
States’ investment of $300,000 for the benefit
of the Sioux. Treaty of Sept. 29, 1837, arts.
I–II, 7 Stat. 538 (‘‘1837 Treaty’’).7 Under the
treaty, the United States was required to pay
an annuity to the Sioux at a rate of not less
than five percent interest, such annuity to be
paid ‘‘forever.’’ Id., art. II, 7 Stat. at 538.

In 1851, the Mdewakanton and Wahpakoota
bands entered another treaty with the
United States under which they ceded ‘‘all
their lands and all their right, title and claim
to any lands whatever, in the Territory of
Minnesota, or in the State of Iowa[,]’’ and
bound themselves to ‘‘perpetual’’ peace and
friendship with the United States. Treaty of
Aug. 5, 1851, arts. I–II, 10 Stat. 954 (‘‘1851
Treaty’’). This treaty stated that the government
would provide to the bands, among
other compensation, a trust fund of
$1,160,000, with interest set at five percent,
to be paid annually for a period of fifty years.
See id, art. IV, ¶ 2, 10 Stat. at 954. The
Sisseton and Wahpeton Bands signed a similar
treaty on July 23, 1851, ceding all of their
lands in the Territory of Minnesota and the
State of Iowa, and ‘‘all of the lands owned in
common by the four bands by natural boundaries.’’
Medawakanton, 57 Ct.Cl. at 360;
Treaty of July 23, 1851, art. II, 10 Stat. 949.
The Sisseton and Wahpeton Bands were to
receive compensation comparable to that of
the Mdewakanton and Wahpakoota bands,
with a trust of $1,360,000 and interest at 5%
to be paid out annually for fifty years. See
Treaty of July 23, 1851, art. IV, ¶ 2, 10 Stat.
at 949.
Article 3 of both 1851 treaties provided for
the creation of a reservation for the Minnesota
Sioux to run along the Minnesota River.
See Medawakanton, 57 Ct.Cl. at 361. Based
upon that Article, the Sioux were removed to
the reservation delineated in the treaty. See
id. at 360. The Senate, however, struck out
the third article in its ratification of each of
the treaties and instead agreed to pay the
Sioux for the reservation lands at a rate of 10
cents per acre, the total sum to be added to
the trust funds created by the treaties. See
id. The Senate also authorized the President
to set aside another reservation outside
the limits of the ceded land. See id. The
appropriate compensation corresponding to
the ten-cents-per-acre rate was thereafter
added to the trust funds created by the
treaties, but the President never established
an alternative reservation for the Sioux. See
id. at 362. The Sioux continued to live on
the land originally intended to serve as their
reservation under the 1851 treaties. See id.
In 1858, the United States entered into
another treaty with the Sioux under which
the Mdewakanton and Wahpakoota bands
‘‘agreed to cede that part of their reservation
lying on the north side of the Minnesota
River’’ in exchange for compensation, including
money and goods, the exact amount of
which would be determined by the Senate at
a later time. Medawakanton, 57 Ct.Cl. at
365–66; Treaty of June 19, 1858, arts. I–III,
12 Stat. 1031 (‘‘1858 Treaty’’).8 The treaty
created a new reservation for the Sioux consisting
of the land then occupied by the
bands along the Minnesota River in southcentral
Minnesota. See 1858 Treaty, art. I,
12 Stat. 1031.9 By entering the treaty, the

7. Although the 1837 treaty purports to bind the
entire Sioux Nation, it appears that the treaty
was signed only by leaders of the Mdewakanton
band. See 7 Stat. 538.
8. Specifically, by the 1858 treaty the Mdewakanton
and Wahpakoota bands agreed to cede part
of their reservation, should the Senate determine
they indeed had valid title to that land. See
Treaty of June 19, 1858, art. II, 12 Stat. at 1031.
The title was apparently in dispute because at
least some portion of the land to be ceded under

the 1858 treaty included that land originally
granted to the Sioux by virtue of the 1851 treaty
but removed in the Senate ratification process.
Congress authorized the President to confirm the
land to the Sioux in an 1854 Act, but it maintained
that ‘‘the President ha[d] not directly confirmed
said reserve to said Indians.’’ Id.
9. The Sisseton and Wahpeton bands entered into
a similar treaty in 1858 by which they also ceded
their land north of the Minnesota River. See
Treaty of June 19, 1858, 12 Stat. 1037.

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Mdewakanton and Wahpakoota bands of the
Sioux Indians pledged ‘‘to preserve friendly
relations with the citizens [of the United
States], and to commit no injuries or depredations
on their persons or property.’’ Id.,
art. VI, 12 Stat. at 1031.
The 1862 Sioux Uprising

In August of 1862, individuals from each of
the four bands of the Minnesota Sioux revolted
against the United States in response to
the United States’ failure to furnish the money
and supplies promised in exchange for the
Sioux lands under the aforementioned treaties.
See Def.’s Mot. to Dismiss and Mem. in
Support (‘‘Def.’s Mot.’’) at 4.10 In the course
of that uprising, the Sioux killed more than
500 settlers and damaged substantial property,
Wolfchild I, 62 Fed.Cl. at 526, thereby
breaching the 1851 and 1858 treaties. After
defeating the Sioux, the United States annulled
its treaties with them, which had the
effect of, among other things, voiding the
annuities that had been granted and were
then being paid to the Sioux as part of the
terms of the 1837 and 1851 treaties and
eliminating any possibility of compensation
under the 1858 treaty. See Act of Feb. 16,
1863, ch. 37, 12 Stat. 652. A portion of the
remaining unexpended annuities was appropriated
for payment to those settlers who had
suffered damages as a result of the uprising.
Id., § 2, 12 Stat. at 652–53. The United
States also confiscated the Sioux lands in
Minnesota, Id., § 1, 12 Stat. at 652, and later
directed that the Sioux be removed to tracts
of land outside the limits of the then-existing
states. See Act of Mar. 3, 1863, ch. 119, § 1,
12 Stat. 819.
Some of the Sioux, however, had been loyal
to the United States during the uprising by
either not participating in the revolt or affirmatively
acting to save the settlers. See
Wolfchild I, 62 Fed.Cl. at 526. Nonetheless,
Congress acted with a broad brush, declaring
the Sioux’s treaties void and annuities and
allocation of land forfeited and failing to except
from that termination the loyal Mdewakanton
band of Sioux, whose annuity was
valued at approximately $1,000,000. See id.
at 527. Those Sioux who observed their
pledge under the 1851 and 1858 treaties to
maintain peaceful relations with the citizens
of the United States were rendered ‘‘povertystricken
and homeless.’’ Wolfchild VI, 559
F.3d at 1232. Many of the loyal Sioux had
lost their homes and property but could not
‘‘return to their tribe TTT or they would be
slaughtered for the part they took in the
outbreak.’’ Wolfchild I, 62 Fed.Cl. at 526
(quoting CONG. GLOBE, 38TH CONG., 1ST SESS.
3516 (1864)).11
Congress’s Initial Efforts to Compensate
the Loyal Mdewakanton
Notwithstanding the broad termination of
the Sioux treaties, Congress did attempt to
provide for the loyal Mdewakanton by including
a specific provision for them in the Act of
February 16, 1863. After confiscating the
Sioux land, Congress authorized the Department
to assign up to eighty acres of that land
to each loyal Sioux:
[T]he Secretary of the Interior is hereby
authorized to set apart of the public lands,
not otherwise appropriated, eighty acres in
severalty to each individual of the before-

10. A statement made by the Episcopal Bishop of
Minnesota and quoted by Senator Fessenden in
the course of passing subsequent legislation in
1863 provides a more detailed explanation:
Four years ago the Sioux sold the Government
about eight hundred thousand acres of land,
being a part of their reservation. The plea for
this sale was the need of more funds to aid
them in civilizationTTTT Of $93,000 due to the
Lower Sioux they have never received a cent.
All has been absorbed in claims except
$880.58, which is to their credit on the books
in Washington. Of the portion belonging to
the Upper Sioux, $88,351.62 was also taken for
claims.
CONG. GLOBE, 37TH CONG., 3D SESS. 192 (1863). In
short, ‘‘y fraud somewhere, these Indians have
had money withheld from them which was justly
their due.’’ Id.
11. By an 1868 treaty with the Sioux, the United
States resumed paying annuities and providing
goods and land to the Sioux. See Treaty of Apr.
29, 1868, 15 Stat. 635. The loyal Mdewakanton,
however, did not benefit under this treaty as they
had severed all tribal relations, and were no
longer considered ‘‘Sioux.’’ See 21 CONG. REC.
7,585, 7,587 (1890) (statement of Sen. Dawes)
(‘‘The Sioux fund and the Sioux appropriation
grow out of an arrangement made in 1868, not
with these Sioux [the loyal Mdewakanton], but
with the warlike Sioux, from whom this band
separated themselves and whom the warlike
Sioux never afterward recognized.’’).

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96 FEDERAL CLAIMS REPORTER

named bands who exerted himself in rescuing
the whites from the late massacre [by]
said Indians. The land so set apart TTT
shall not be aliened or devised, except by
the consent of the President of the United
States, but shall be an inheritance to said
Indians and their heirs forever.
Act of Feb. 16, 1863, § 9, 12 Stat. at 654. As
the Court of Appeals noted, the provision
that the land would be ‘‘an inheritance to said
Indians and their heirs forever[,]’’ ‘‘clearly
would have created an inheritable beneficial
interest in the recipients of any land conveyed
under the statute.’’ Wolfchild VI, 559
F.3d at 1241.
Two weeks after enacting this statute Congress
passed an additional act providing for
the loyal Sioux. See Act of Mar. 3, 1863, ch.
119, 12 Stat. 819. The second Act of 1863
supplemented the first Act of 1863 in important
respects. Under the second Act, the
President was ‘‘authorized’’ and ‘‘directed’’ to
set apart ‘‘outside of the limits of any state’’
eighty acres of ‘‘good agricultural lands’’ for
the Sioux. Id., § 1, 12 Stat. at 819.12 This
grant of land appeared to be an attempt to
address the fact that the first Act of 1863
confiscated all Sioux land, leaving the Sioux
with no direction as to where they might
make a new home. See CONG. GLOBE, 37TH
CONG., 3D SESS. 528 (1863) (statement of Sen.
Harlan) (‘‘It was supposed by the committee
that this removal of the Indians could not
take place immediately TTT [and] that a place
must first be looked up for the Indians.’’).
The second Act of 1863 also stated:

t shall be lawful for [the Secretary of
Interior] to locate any [loyal Sioux] TTT
upon said [reservation] lands on which the
improvements are situated, assigning the
same to him to the extent of eighty acres,
to be held by such tenure as is or may be
provided by law: And provided, further,
That no more than eighty acres shall be

awarded to any one Indian, under this or
any other act.
Act of Mar. 3, 1863, § 4, 12 Stat. at 819.
The Court of Appeals concluded that the
second Act of 1863 ‘‘superseded’’ the first Act
of 1863, and ‘‘pointedly left open the nature
of the interest that the assignees would have
in the lands, stating that the lands would be
‘held by such tenure as is or may be provided
by law.’ ’’ Wolfchild VI, 559 F.3d at 1241–42.
Because the Court of Appeals found that the
second Act superseded the first Act of 1863,
it concluded that ‘‘the failure of the 1863 Acts
cannot be viewed as leading Congress to
create permanent ownership interests in the
1886 lands along the same lines set forth in
the first 1863 statute, because the second of
the two 1863 Acts left the question of ownership
open to later resolution.’’ Id. at 1242.
The Federal Circuit’s view of the relationship
between the two Acts of 1863, however,
misreads the second enactment. The original
version of the bill that became the second
Act of 1863 provided that the Secretary could
assign one hundred and sixty acres to each
loyal Sioux. See CONG. GLOBE, 37TH CONG., 3D
SESS. 528 (1863). In the course of debating
the bill, Senator Fessenden suggested that
‘‘the one hundred and sixty acres ought to be
reduced to eighty, and there ought to be a
reference to the former act to provide that
but eighty shall be given under any act;
otherwise it might be construed to give him
eighty acres under that act and eighty under
this.’’ Id. The Senate concurred, and the
provision that ‘‘no more than eighty acres
shall be awarded to any one Indian, under
this or any other act’’ was added. Id.
[1] This history demonstrates that Congress
was not ‘‘superseding’’ the first Act of
1863 by the second Act of 1863; to the
contrary, it passed the second act with the
specific understanding that the first Act of
1863 remained valid. The amendment to the
second act to include a reference to ‘‘any
other act’’ shows that the two acts of 1863
12. The Act also provided that the land that previously
served as the reservation for the Sioux
would be sold to ‘‘actual bona fide settler’’ or
‘‘sold at public auction[,]’’ Act of Mar. 3, 1863,
§ 3, 12 Stat. at 819, and that proceeds from the
sale of the lands that previously served as the
Sioux’s reservations were to be ‘‘invested by the
Secretary of the Interior for the benefit of said
Indians in their new homes, in the establishing
[of] them in agricultural pursuits.’’ Id., § 4, 12
Stat. at 819.
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were intended to co-exist, with the Secretary
of the Interior (‘‘the Secretary’’) entitled to
provide relief to the loyal Sioux under either
act.13 Where, as here, the legislature supplements
or amends an act so as to specify that
a beneficiary of the subsequent act may not
receive relief under both the prior and subsequent
act, there is certainly no conflict between
the two statutes, and an implied repeal
of the prior act cannot be inferred. See
National Ass’n of Home Builders v. Defenders
of Wildlife, 551 U.S. 644, 662–63, 127
S.Ct. 2518, 168 L.Ed.2d 467 (2007) (‘‘We will
not infer a statutory repeal unless the later
statute expressly contradicts the original act
or unless such a construction is absolutely
necessary TTT in order that the words of the
later statute shall have any meaning at all.’’
(citation and internal quotations omitted));
Miccosukee Tribe of Indians of Fla. v. United
States Army Corps of Eng’rs, 619 F.3d
1289, 1299 (11th Cir.2010) (‘‘Congress’s intent
to effect an implied repeal can be inferred
when a later statute conflicts with or is repugnant
to an earlier statute; or when a
newer statute covers the whole subject of the
earlier one, and clearly is intended as a substitute[,]
TTT [but] a conflict [between the two
statutes] is a minimum requirement.’’) (citations
omitted); Cathedral Candle Co. v.
United States Int’l Trade Comm’n, 400
F.3d
1352, 1365 (Fed.Cir.2005) (‘‘The Supreme
Court has frequently explained that repeals
by implication are not favored, and it has
instructed that ‘where two statutes are capable
of co-existence, it is the duty of the
courts, absent a clearly expressed congressional
intention to be contrary, to regard
each as effective.’ ’’) (quoting Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct.
2862, 81 L.Ed.2d 815 (1984)).
The land-grant provisions of both 1863
Acts intended to benefit the loyal Sioux were
not successfully implemented. See Wolfchild
I, 62 Fed.Cl. at 526–27. The Secretary did

not exercise the authority granted by either
1863 Act, and no lands were provided to the
loyal Mdewakanton. Wolfchild VI, 559 F.3d
at 1232.14 Notably, however, neither act has
been repealed.
Two years later, in 1865, Congress attempted
once again to alleviate the continuing
plight of the loyal Sioux by appropriating
an additional $7,500 for their benefit. See
Act of Feb. 9, 1865, ch. 29, 13 Stat. 427. In
doing so, Congress acknowledged that the
loyal Sioux, who ‘‘at the risk of their lives,
aid[ed] in saving many white men, women,
and children from being massacred,’’ had as
a result been forced to sever their relationships
with the tribe and ‘‘were compelled to
abandon their homes and property, and are
now entirely destitute of means of support.’’
Id.
Thereafter, additional efforts were made to
address the failure to implement the 1863
Acts. Beginning in 1884, Congress began appropriating
funds for the benefit of the Mdewakantons
who had remained in Minnesota
or had returned to the state. See Act of July
4, 1884, ch. 180, 23 Stat. 76, 87 (appropriating
$10,000 for the purchase of stock and ‘‘other
articles necessary for their civilization and
education, and to enable them to become selfsupporting’’);
Act of Mar. 3, 1885, ch. 341, 23
Stat. 362, 375 (amending the 1884 Act by
allowing the Secretary to disburse funds to
the full-blooded Mdewakanton ‘‘for agricultural
implements, lands, or cash, as in his
judgment may seem best for said Indians’’);
Act of May 15, 1886, ch. 333, 24 Stat. 29, 39–
40 (appropriating $10,000 for the purchase of
‘‘such agricultural implements, cattle, lands,
and in making improvements thereon, as in
[the Secretary’s] judgment may seem best
for said Indians’’). Pursuant to the 1884,
1885, and 1886 statutes, Interior Department
officials purchased land for the Mdewakanton
and distributed it to many of them in fee

13. This relationship between the two Acts of
1863 accords with the fact that the first Act of
1863 allowed the Secretary to set apart unspecified
public lands not otherwise appropriated, Act
of Feb. 16, 1863, § 9, 12 Stat. at 654, while the
second Act of 1863 provided that the Secretary
could assign to the loyal Sioux lands that had
previously served as reservation lands for the
Sioux. Act of Mar. 3, 1863, § 4, 12 Stat. 819.

14. The failure to purchase land for the loyal
Sioux was apparently due to fervent opposition
by whites to permitting any Sioux from resettling
in the state. See Wolfchild VI, 559 F.3d at 1232–
33.
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316 96 FEDERAL CLAIMS REPORTER

simple. See Wolfchild VI, 559 F.3d at 1233.
This method of providing land to the Mdewakanton
failed to supply long-term relief to
the group as most of the recipients sold the
land, otherwise encumbered it, or abandoned
it. Id. Consequently, ‘‘the Interior Department
discontinued the practice of transferring
land to the loyal Mdewakantons in fee.’’
Id.
The 1886 Census and the 1888, 1889,
and 1890 Appropriations Acts
In 1886, the Department of Interior set out
to establish with a greater degree of certainty
which Mdewakanton were loyal to the
United States during the 1862 uprising. Because
of the administrative difficulty of this
task, Congress decided that presence in
Minnesota as of May 20, 1886 would suffice
to qualify an individual as a ‘‘loyal Mdewakanton.’’
Wolfchild I, 62 Fed.Cl. at 527. To
determine which Mdewakanton lived in
Minnesota on May 20, 1886, U.S. Special
Agent Walter McLeod took a census listing
all of the full-blood Mdewakantons, which
census was mailed to the Commissioner of
Indian Affairs on September 2, 1886. Id. at
528.15 At the behest of the Secretary, on
January 2, 1889, a second supplemental census
was taken by Robert B. Henton, Special
Agent for the Bureau of Indian Affairs
(‘‘BIA’’), of those Mdewakanton living in
Minnesota since May 20, 1886. Id. The
McLeod and Henton listings (together, ‘‘the
1886 census’’) were used to determine who
would receive the benefits of the later Appropriations
Acts. Id.
Motivated by the failure of the 1863 Acts
to provide viable long-term relief, in 1888,
1889, and 1890, Congress passed three Appropriations
Acts that included provisions for
the benefit of the loyal Mdewakanton. See
Wolfchild VI, 559 F.3d at 1241; Wolfchild I,
62 Fed.Cl. at 524.16 These Acts served as
the foundation of the plaintiffs’ breach-oftrust
claims asserted in this litigation, and
led to the approximately $60,000 in land proceeds
that are at issue on remand. That
$60,000, identified in a report prepared in
1975, had grown to $131,483 by 1980, and,
with additional interest since 1980, would be
a few times greater than that larger amount
by today, thirty years later.
In 1888, Congress appropriated $20,000 ‘‘to
be expended by the Secretary of the Interior’’
in purchasing land, cattle, horses, and
agricultural implements for those ‘‘full-blood’’
loyal Mdewakanton who had severed their
tribal relations. Act of June 29, 1888, ch.
503, 25 Stat. 217, 228–29.17 In 1889, Congress
appropriated a further sum of $12,000
‘‘to be expended by the Secretary of the
Interior’’ for the ‘‘full-blood’’ loyal Mdewakanton.
Act of Mar. 2, 1889, ch. 412, 25 Stat.
980, 992–93.18 The 1889 Act was substantial-

15. Although the census was not prepared as of
May 20, 1886, ‘‘inclusion on the McLeod list has
been deemed to create a rebuttable presumption
that an individual met the requirements of the
subsequent 1888, 1889, and 1890 Acts.’’ Wolfchild
I, 62 Fed.Cl. at 528.
16. Notably, over thirty years later, the funds provided
under the Appropriations Acts were deducted
from a judgment for the Mdewakanton
and Wahpakoota Bands, which judgment was
rendered to compensate them for the annuities
that were terminated by the 1863 Acts. See
Wolfchild VI, 559 F.3d at 1254 (citing Medawakanton,
57 Ct.Cl. 357).
17. The section of the statute pertaining to the
loyal Mdewakanton provided as follows:
For the support of the full-blood Indians in
Minnesota, belonging to the Mdewakanton
band of Sioux Indians, who have resided in
said State since the twentieth day of May, A.D.
eighteen hundred and eighty-six, and severed
their tribal relations, twenty thousand dollars,
to be expended by the Secretary of the Interior
in the purchase, in such manner as in his
judgment he may deem best, of agricultural
implements, cattle, horses and lands: Provided,
That of this amount the Secretary if he may
deem it for the best interests of said Indians,
may cause to be erected for the use of the said
Indians at the most suitable location, a school
house, at a cost not exceeding one thousand
dollars: And provided also, That he may appoint
a suitable person to make the abovementioned
expenditures under his direction,
the expense of the same to be paid out of this
appropriation.
25 Stat. at 228–29.
18. The relevant portion of the 1889 appropriation
act reads as follows:
For the support of the full-blood Indians in
Minnesota heretofore belonging to the Mdewakanton
band of 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 sev-

[mdenney]

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ly similar to the 1888 Act but included three
additional provisions not included in the 1888
Act. Unlike the 1888 Act, the 1889 Act required
the Secretary to expend the appropriated
funds in a manner such that each loyal
Mdewakanton received as close to an equal
amount as practicable. Id. Additionally, the
1889 Act mandated that any money appropriated
in the 1889 Act not expended within the
fiscal year would not be recovered by Treasury,
but rather would be carried over to the
following years and expended for the benefit
of the loyal Mdewakanton. Id. at 992. The
1889 Act made both of these additional provisions
applicable to the money appropriated
under the 1888 Act as well. Id. at 992–93.
The 1889 Act differed from the 1888 Act in a
third way by granting the Secretary discretion
based on what ‘‘may be deemed best in
the case of each of these Indians or family
thereof.’’ Id. at 992 (emphasis added). The
1888 Act, on the other hand, made no explicit
mention of the loyal Mdewakantons’ families
as beneficiaries of the appropriations. See
25 Stat. at 228–29.
In 1890, Congress provided an additional
$8,000 ‘‘to be expended by the Secretary of
the Interior’’ for the loyal Mdewakanton.
Act of Aug. 19, 1890, ch. 807, 26 Stat. 336,
349.19 The 1890 Act was substantially similar
to the 1889 Act, and included the requirement
that the Secretary spend the money in
a way that ensured each loyal Mdewakanton
would receive as close to an equal amount as
practicable. Id. There were, however, two
unique aspects of the 1890 Act. First, the
1890 Act dictated that the amount was to
support both ‘‘full and mixed blood’’ loyal
Mdewakanton. Id. Additionally, the 1890
Act did not include the provision found in the

ered 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 act of June twenty-ninth, eighteen hundred
and eighty-eight: Provided, That if the
amount in this paragraph appropriated, or any
portion of the sum appropriated for the benefit
of these same Indians by said act of June
twenty-ninth, eighteen hundred and eightyeight,
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 in this paragraph mentioned shall receive,
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 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.
25 Stat. at 992–93.
19. The full text of the 1890 appropriation provided
as follows:
For the support of the full and mixed blood
Indians in Minnesota heretofore belonging to
the Mdewakanton band of 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, eight thousand
dollars, to be expended by the Secretary of the
Interior, as in his judgment he may think best,
for such lands, agricultural implements, buildings,
seeds, cattle, horses, good, or clothing as
may be deemed best in the case of each of
these Indians or families thereof: Provided,
That two thousand dollars of the above eight
thousand dollars shall be expended for the
Prairie Island settlement of Indians in Goodhue
County: Provided further, That the Secretary
of the Interior may appoint a suitable
person to make the above-mentioned expenditure
under his direction whose compensation
shall not exceed one thousand dollars; 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 in this paragraph mentioned shall
receive, as nearly as practicable, an equal
amount in value of the appropriation: And
provided further, That, as far as 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
or land against his will.
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318 96 FEDERAL CLAIMS REPORTER

1889 Act specifying that any monies not expended
in the fiscal year were to be carried
over to the following years. See id.20
Land Assignments under the
Appropriations Acts
Unlike the failed 1863 Acts, the funds provided
by the three Appropriations Acts were
used for the purchase of land, agricultural
implements, livestock, and goods for the loyal
Mdewakanton. See Wolfchild I, 62 Fed.Cl.
at 528. The lands were purchased in three
distinct areas of Minnesota, and by 1980 they
consisted of: (1) approximately 260 acres in
Scott County (the ‘‘Shakopee lands’’), (2) approximately
575 acres in Redwood County
(the ‘‘Lower Sioux’’ lands), and (3) approximately
120 acres in Goodhue County (the
‘‘Prairie Island’’ lands). Id. Collectively,
these properties were known as the ‘‘1886
lands’’ to reflect the date by which the beneficiaries
of the Appropriations Acts were defined.
Id.
In 1904, the Secretary began conveying
rights to use the purchased land to the loyal
Mdewakanton. See Def.’s Mot. at 4. Rather
than granting the land in fee simple—a practice
that had failed to provide long-term relief
under the 1884, 1885, and 1886 appropriations—
the Department chose to make the
land available to the loyal Mdewakanton
while retaining title in the United States’
name. See Wolfchild I, 62 Fed.Cl. at 528;
see also Pls.’ App. in Support of Cross–Mot.
for Summ. Judgment (‘‘Pls.’ App.’’) at 61
(Letter from Acting Comm’r of Dep’t of Interior
to James McLaughlin, U.S. Indian Inspector)
(Feb. 20, 1899) (‘‘As you are doubtless
aware, the title to all the land purchased
by late Agent Henton for said Indians [loyal

Mdewakanton], is still vested in the United
States—being held in trust for them.’’). To
that end, the Department employed an assignment
system under which a parcel of
land would be assigned to a particular beneficiary
who could use and occupy the land as
long as he or she wanted; however, if the
assignee did not use it for two years, the
parcel would be reassigned. See Wolfchild I,
62 Fed.Cl. at 528.

Under the assignment system, the Department
provided documents called Indian Land
Certificates to assignees as evidence of their
entitlement to the land. See Wolfchild I, 62
Fed.Cl. at 528. The Certificates stated that
the assignee ‘‘and [his] heirs are entitled to
immediate possession of said land, which is to
be held in trust, by the Secretary of the
Interior, for the exclusive use and benefit of
the said Indian, so long as said allottee or his
or her heirs occupy and use said lands.’’
Def.’s Mot., Ex. P (Indian Land Certificate).
21 If an assignee abandoned the land
for a period of time, usually two years, then
the Department of Interior would reassign
the land to another beneficiary; any sale,
transfer, or encumbrance of the land other
than to the United States was void. Wolfchild
I, 62 Fed.Cl. at 529. ‘‘Although not guaranteed
under the assignment system, in
practice an assignee’s land would pass directly
to his children upon his death.’’ Id. Other
relatives, however, were required to follow
procedures established by the Bureau of Indian
Affairs to receive an assignment. Id.
Evolution of the Three Communities
In 1934, the Indian Reorganization Act
(‘‘Reorganization Act’’) fundamentally altered
the way in which the federal government

26 Stat. at 349.
20. This provision was contained in the original
version of the bill but was elided pursuant to an
amendment proposed by Senator thingyrell who
declared it a ‘‘remarkable provision.’’ 21 CONG.
REC. 7,586 (1890). Senator Dawes responded to
Senator thingyrell by observing that ‘‘[t]his whole
paragraph [the entire text of the 1890 appropriation
to the loyal Mdewakanton] is [not] of the
ordinary course of an Indian appropriation bill.’’
Id. Senator thingyrell responded: ‘‘Or any other
appropriation bill, is it not?’’ Id.
21. In accord with the representation in the Indian
Land Certificates that the land was ‘‘held in

trust TTT by the Secretary of the Interior’’ for the
assignee and his heirs, Congress amended a bill
that allowed the Secretary of Interior to sell an
unfarmable parcel of 1886 lands to include a
requirement that the loyal Mdewakanton had to
consent to the sale. See Wolfchild I, 62 Fed.Cl.
at 528–29; Act of Feb. 25, 1901, ch. 474, 31 Stat.
805, 806. In the course of debating that amendment,
Senator Pettigrew remarked that ‘‘[the
1886 lands] were not an Indian reservation.
These Indians own the homes, and they have a
right there greater than that of reservation Indians.
The land was purchased for their benefit,
and the title is in them subject to a provision by
which they can not convey it.’’ Wolfchild I, 62
Fed.Cl. at 529 (citing 34 CONG. REC. 2,523 (1901)).

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dealt with Indians and Indian tribes. See
Act of June 18, 1934, ch. 576, 48 Stat. 984
(also known as the Wheeler–Howard Act)
(codified as amended at 25 U.S.C. §§ 461–
79). The Reorganization Act permitted
‘‘ny Indian tribe, or tribes, residing on the
same reservation TTT to organize for its common
welfare.’’ Id., § 16, 48 Stat. at 987.
Pursuant to the Act, the Mdewakanton and
others formed three communities: the Shakopee
Mdewakanton Sioux Community, the
Prairie Island Indian Community, and the
Lower Sioux Indian Community. See
Wolfchild I, 62 Fed.Cl. at 529. Although
loyal Mdewakanton resided in the three communities,
the three communities were and
are not exclusively comprised of descendants
of the loyal Mdewakanton, and ‘‘many of the
descendants of the 1886 Mdewakantons are
not enrolled members of any of the three
communities.’’ Wolfchild VI, 559 F.3d at
1235. The membership of these communities
thus is not defined in terms of indigenous
relatiorelationships; 22 rather, the communities exercise
discretion over who attains or keeps
their membership. See Wolfchild I, 62 Fed.
Cl. at 530; see, e.g., Def.’s Mot., Ex. E, art.
III (Constitution and Bylaws of the Lower
Sioux Indian Community in Minnesota). As
a result, ‘‘a lineal descendant of a loyal Mdewakanton
might be denied admission to, or
removed from, membership in a community
even if the descendant lived on 1886 land
encompassed by the community boundary.’’
Wolfchild I, 62 Fed.Cl. at 530.

As a consequence of the fact that the communities
were not equivalent to the loyal
Mdewakanton, the communities did not have
a collective claim to the 1886 lands. In 1978,
a Field Solicitor for the Department of Interior
addressed this issue: ‘‘[N]one of the
three Community governments, organized
under the [Reorganization Act] TTT has any
right, title or interest in these lands. The
land is held for the benefit of a specific class
of people and their descendants.’’ Joint App.
(‘‘J.A.’’) 00399–400 (Letter from Mariana R.
Shulstad, Field Solicitor, to Edwin L. Demery

Area Dir. for Minneapolis Area Office of
the Bureau of Indian Affairs (Nov. 8, 1978)
(‘‘Shulstad 1978 Letter’’)).
Nonetheless, after the passage of the Reorganization
Act, the BIA consulted with the
communities before granting assignments to
1886 lands. See Wolfchild I, 62 Fed.Cl. at
529–30. Although the Field Solicitor for the
Department noted that the communities’ recommendations
were ‘‘a courtesy only’’ and
not ‘‘a legal necessity, since the communities
have no decision making authority concerning
use of these lands[,]’’ the communities
were provided an opportunity to influence
the assignment of 1886 lands. J.A. 00400
(Shulstad 1978 Letter). Additionally, prior
to the establishment of the three communities,
the Department’s policy was that any
sand and gravel deposits located on the 1886
lands were the government’s property and
were not subject to sale by the assignees.
See Def.’s Mot., Ex. D (Letter from J.W.
Balmer, Superintendent of the Pipestone Indian
School to Earl Pendleton) (Nov. 22,
1930). After the passage of the Reorganization
Act, however, the BIA adopted the view
of the Lower Sioux Indian Community that
sand and gravel on the 1886 lands within the
reservation constituted a community resource
and was not the government’s property.
See Def.’s Mot. at 8.
Funds Derived from the 1886 Lands
Eventually, money derived from 1886 lands
began to be held in Treasury accounts. On
June 13, 1944, Congress enacted a statute
authorizing the Secretary to transfer approximately
110.24 acres of 1886 lands in Wabasha
County to the Upper Mississippi River
Wild Life and Fish Refuge (‘‘the Wabasha
Land Transfer’’). See An Act to Add Certain
Lands to the Upper Mississippi Wild Life
and Fish Refuge, Pub.L. No. 78–335, ch. 243,
58 Stat. 274. The parcels had been acquired
pursuant to the 1888 and 1889 Appropriations
Acts ‘‘for Indian use, but [were] no
longer [being] used by Indians.’’ Id., § 2, 58
Stat. at 274.

22. Groups organized pursuant to and recognized
by the Reorganization Act are not required to
‘‘correspond exactly to any tribe or band.’’ FELIX
COHEN, ON THE DRAFTING OF TRIBAL CONSTITUTIONS 5
(David E. Wilkins ed., Univ. of Oklahoma Press

2006) (1934). Accordingly, ‘‘ll the Indians of
a given reservation may organize as a unit if they
so desire, regardless of past tribal affiliations.’’
Id.
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96 FEDERAL CLAIMS REPORTER


The Secretary of the Interior drafted a bill
to authorize the land transfer and proposed it
to Congress. See S.Rep. No. 78–809, at 1
(1944). In his proposal, the Secretary noted
that ‘‘[t]hese lands cannot be acquired or
transferred in the usual manner as their use
has been fixed by Congress TTT n these
circumstances it is recommended that the
proposed legislation be placed before the
Senate for appropriate action.’’ Id. at 2. In
the course of considering the Secretary’s bill,
Senator Mundt remarked, ‘‘I understand that
it is a matter of transferring the title so that
it can be used by the refuge.’’ 90 CONG. REC.
5,325 (1944). The Act provided as follows:
In order to carry out TTT [the transfer of
the land], the sum of $1,261.20 TTT is hereby
made available for transfer on the
books of the Treasury of the United States
to the credit of the Mdewakanton and
Wahpakoota Bands of Sioux Indians pursuant
to the provisions of the Act of May 17,
1926 (44 Stat. 560) TTT and shall be subject
to disbursement under the direction of the
Secretary of the Interior for the benefit of
the Mdewakanton and Wahpakoota Bands
of Sioux Indians. Where groups of such
Indians are organized as tribes under the
[Reorganization Act], the Secretary of the
Interior may set apart and disburse for
their benefit and upon their request a proportionate
part of said sum, based on the
number of Indians so organized.

Pub.L. No. 78–335, § 2, 58 Stat. 274.23 The
1886 lands at Wabasha were transferred, and
on October 6, 1944, $1,261.20 was credited to
the United States Treasury Account 147436,
‘‘Proceeds of Labor, Mdewakanton and Wahpakoota
Bands of Sioux Indians, Minnesota.’’
See Def.’s Mot. at 8, Ex. A (Letter from F.G.
Hutchinson, Acting Chief, Branch of Realty,
to E.M. Pryse, Area Director, Minneapolis,
Minn. (Feb. 24, 1955)), Ex. B (Letter from
C.B. Emery, Chief, Branch of Budget and
Finance, to D.C. Foster, Area Director, Minneapolis,
Minn. (June 8, 1951)).

Although the 1944 Act provided the funds
to the Mdewakanton and Wahpakoota generally,
not the loyal Mdewakanton specifically,
the Act notably allowed funds from the Wabasha
Land Transfer to be disbursed to
tribes organized under the Reorganization
Act only in proportion to the number of
Mdewakanton and Wahpakoota contained
within those tribes. See Pub.L. No. 78–335,
§ 2, 58 Stat. 274. The importance of the
restriction contained in the last sentence was
reiterated by the Chief of Budget and Finance
for BIA, C.B. Emery, in a letter dated
June 8, 1951, to the Area Director of BIA for
Minneapolis, D.C. Foster, in response to Mr.
Foster’s inquiry as to the status of the Wabasha
Land Transfer funds. See Def.’s Mot.,
Ex. B (In regards to the Wabasha Land
Transfer funds, ‘‘[t]he last sentence of the
Act of June 13, 1944 should be particularly
noted.’’).24

Money was also derived from the 1886
lands by the Department’s policy of leasing
or licensing 1886 lands for fair market value
where no eligible 1886 Mdewakanton was
available for the land assignment. See
Wolfchild I, 62 Fed.Cl. at 530. The Department
sometimes licensed the unused parcels
to non-Indians for a fixed compensation to be
paid to a third party. See, e.g., Def.’s Mot.,
Ex. R (License Agreement (Apr. 22, 1916))
(granting license to non-Indian in consideration
of $25.00 per annum payment to Pipestone
Indian School, Pipestone, Minn.). The
Department also deposited some leasing
funds derived from the 1886 lands in various
Treasury accounts. See Def.’s Mot., Ex. C
(Accountant’s Report, Income to Mdewakanton
Sioux Lands, Minneapolis Area Office,
Minneapolis Minn. (Field work for report
completed Feb. 5, 1975)) (‘‘1975 Report’’).
In 1974, the Acting Associate Solicitor for
Indian Affairs in the Department, Duard R.
Barnes, wrote a detailed opinion explaining
the Department’s interpretation of the status
of the 1886 lands and the funds derived from
the land. J.A. 00392–97 (Mem. to Comm’r of

23. The Act also provided that the $1,261.20
‘‘when so transferred, shall operate as a full,
complete, and perfect extinguishment of all their
right, title, and interest in and to the lands above
described.’’ Pub.L. No. 78–335, § 2, 58 Stat.
274.

24. The 1944 Act also made the Wabasha Land
Transfer funds subject to the restrictions contained
in the Act of May 17, 1926, ch. 309, 44
Stat. 560. See Pub.L. No. 78–335, § 2, 58 Stat.
274. The effect of that statute is discussed infra,
at 333 n. 42.

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Indian Affairs (Mar. 19, 1974)) (‘‘Barnes 1974
Mem.’’). The opinion stated that legal title
was taken in the United States’ name, and
tenancies at will or defeasible tenancies were
granted to the 1886 Mdewakantons. J.A.
00394. The memorandum concluded that the
1886 lands were ‘‘held in trust by the United
States with the Secretary possessing a special
power of appointment among members of
a definite class.’’ Id. at 00396. The opinion
also noted that whereas lease income from
the 1886 lands had been ‘‘expended through
local tribal governments TTT for the benefit
of reservation communities in which members
of the beneficiary class reside or with
which they are affiliated[,]’’ in the future
‘‘

roceeds from the leases should be kept
separate and may be expended for the benefit
of the class.’’ Id. at 00394, 00397. The
letter ended by proposing that the BIA ‘‘undertake
to ascertain whether some legislative
disposition of beneficial title to these lands
consistent with the present situation is current
and can be recommended to the Congress.’’
Id. at 00397. Pursuant to the 1974
opinion letter, the BIA began to deposit lease
income in suspense accounts, see Def.’s Mot.,
Ex. C, and ordered that all income from the
1886 lands be identified and maintained in a
separate account. Id., Ex. F (Mem. from
Milton C. Boyd, Chief, Office of Audit, BIA,
to Minneapolis Area Director (Mar. 21,
1975)).
In 1975, the BIA completed a report documenting
all funds derived from the 1886
lands. See Def.’s Mot., Ex. C. The 1975
Report found no evidence of any income derived
from the 1886 lands prior to 1950 with
the exception of the Wabasha Land Transfer.
Id.25 The BIA accountants found a total of
$61,725.22 in funds derived from the 1886
lands, including the $1,261.20 in Wabasha–
Land–Transfer funds. The Accounts were
divided into three ‘‘Proceeds of Labor’’ Treasury
accounts,26 and four Individual Indian
Money (‘‘IIM’’) accounts. Id.27 Of the remaining
$60,464.02, $58,784.96 was deposited
in four Lower Sioux Treasury and IIM accounts,
and $1,679.06 was deposited in two
Prairie Island Treasury and IIM accounts.
Id. As is evident from the accounting described
above, the majority of the income
derived from the 1886 lands was allocated to
accounts belonging to the Lower Sioux, and
no money accounted for in the 1975 Report
was attributed to the Shakopee Mdewakanton
Sioux. See id. The entire $61,725.22
was subsequently placed in Treasury Account
147436 ‘‘Proceeds of Labor, Mdewakanton
and Wahpakoota’’ and its associated
interest account, 147936, thus, in the words
of the BIA, ‘‘restor[ing] these funds to the
proper accounts.’’ See id.

On June 27, 1975, BIA officials met with
representatives of the three communities to
address the disbursement of the money gathered
in Treasury Account 147436 and its
associated interest account. See Def.’s Mot.
at 10. The parties agreed that the three
communities ‘‘would submit resolutions requesting
distribution of the TTT funds’’ and
‘‘requesting a Congressional directive as to
the 1886 lands.’’ Id. The three communities
submitted their proposals to the BIA, see id.,
and by September 1980, the three communities
had agreed that the funds should be
divided equally and disbursed to the communities,
and that any money earned after January
1, 1978 would be paid to the community
whose reservation encompassed the 1886
lands from which the funds were derived.
See id., Ex. I (Mem. to Area Director of
Minneapolis Area Office from Richard L.
McLaughlin, BIA (Sept. 16, 1980)).

25. The 1975 Report did not provide an accounting
of any income disbursed to the assignees or
to the Pipestone Indian School.
26. The ‘‘Proceeds of Labor’’ Treasury Accounts
were: Account 147158, ‘‘Proceeds of Labor,
Lower Sioux Indian Community,’’ Account
147043, ‘‘Proceeds of Labor, Prairie Island Indian
Community,’’ and Account 147436, ‘‘Proceeds
of Labor, Mdewakanton and Wahpakoota.’’ See id.

27. An IIM account is ‘‘an interest bearing account
for trust funds held by the Secretary that
belong to a person who has an interest in trust
assets. These accounts are under the control
and management of the Secretary. There are
three types of IIM accounts: unrestricted, restricted,
and estate accounts.’’ 25 C.F.R.
§ 115.002. The Report does not specify in which
types of IIM accounts the funds were placed.
See Def.’s Mot., Ex. C.

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96 FEDERAL CLAIMS REPORTER

About the same time that some BIA officials
were consulting the three communities
as to the funds derived from the 1886 lands,
other BIA officials realized that the three
communities did not have a claim to the
funds. In a response dated Nov. 6, 1975 to
an inquiry by Minnesota Representative
Richard Nolan regarding the 1886 lands and
funds derived from the lands, the Acting
Area Director for the Minnesota Field Office
of the BIA stated that ‘‘the funds appropriated
are to be used only for the benefit of a
certain class of people identified by special
census of that time [the 1886 Mdewakanton]
[and] [t]he current Sioux Communities do not
represent the special class of people referred
to even though some of their members may
qualify in the special class mentioned in the
actions taken in 1888, 1889, and 1890.’’ J.A.
02548 (‘‘Area Director’s 1975 Mem.’’). In a
subsequent memorandum dated June 3, 1976,
to the Commissioner of Indian Affairs, the
Office of the Area Director reiterated that
the funds obtained by virtue of the 1886
lands could not be distributed to the three
communities without legislative action. He
stated,

[W]e should not attempt to distribute such
funds on the strength of the resolutions
from the three communities at this time
TTT The land was originally purchased for
the Mdewakanton Sioux residing in Minnesota
on May 20, 1886, and their descendants
TTT A very small portion of the
descendants reside on the three Minnesota
Sioux Communities today. A question
arises as to whether all descendants would
be entitled to the income similar to an
Indian Claims Commission judgment
award distributed to descendantsTTTT
One suggestion to resolve this matter
would be to incorporate the disposition of
the funds with legislation converting the

title. Another suggestion would be to develop
a descendancy roll similar to a claim
distribution, however, this would only dispose
of funds accumulating up to the date
of the payment and would have to be repeated
in the future, or until title to the
land is changed. We would appreciate
your advice and authority for the disposition
of subject funds.

J.A. 01115–16 (‘‘Area Director’s 1976 Mem.’’).

Nonetheless, on January 9, 1981, the BIA
disbursed $37,835.88 to the Shakopee Mdewakanton,
$36,210.01 coming from Treasury
Account 147436 and $1,625.87 coming from
the associated interest account 147936. See
Def.’s Mot., Ex. K (Public Voucher (Dec. 30,
1980)). On March 3, 1981, the BIA disbursed
$37,835.88 to the Lower Sioux, $27,601.78
coming from Treasury Account 147436 and
$10,234.10 coming from a Lower Sioux ‘‘Proceeds
of Labor’’ and interest account. See
id., Ex. L (Public Voucher (Feb. 23, 1981)).
And on April 21, 1981, the BIA disbursed the
final $37,835.88 to the Prairie Island community,
$25,450.48 coming from accounts 147436
and 147936 and $12,385.40 from a Prairie
Island ‘‘Proceeds of Labor’’ and interest account.
See id., Ex. M (Public Voucher (Apr.
21, 1981)).28 The BIA made additional disbursements
from Treasury Account 147436 in
1981 and 1982, with the Shakopee Mdewakanton
receiving $6,429.71, the Lower Sioux
receiving $5,115.85, and the Prairie Island
receiving $6,429.71. See Def.’s Mot. at 11;
id., Ex. N (Public Voucher (Mar. 22, 1983)).
Treatment of the 1886 Lands
under the 1980 Act

After the passage of the Reorganization
Act, ‘‘additional lands were acquired in trust
for the benefit of’’ the three communities.
See H.R.Rep. No. 96–1409, at 2 (1980). As a

28. The ‘‘Proceeds of Labor’’ accounts from
which disbursements were made to the Lower
Sioux and Prairie Island Communities are the
same accounts that the 1975 Report identified as
containing money derived from the 1886 lands.
See Def.’s Mot., Ex. C. Pursuant to that report, all
money related to the 1886 lands then found in
those accounts was transferred to Treasury Account
147436 and its associated interest account
147936. Id. However, it would appear from the
source of the 1980 disbursements that subsequent
to the 1975 transfer of $61,725.22, funds
derived from the 1886 lands were once again
placed in the ‘‘Proceeds of Labor’’ Treasury Accounts
belonging to the Lower Sioux and the
Prairie Island Communities. The BIA’s decision
to resume placing monies derived from the 1886
lands in accounts other than Account 147436
and its associated interest account 147936 is
perplexing given the BIA’s acknowledgement, in
its 1975 Report, that transferring the funds to
accounts 147436 and 147936 ‘‘restore[d] these
funds to the proper accounts.’’ Id.

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result, the three communities had ‘‘two
classes of members: all members of the community
who were entitled to the benefits of
the tribal lands acquired under the Reorganization
Act and members who were descendants
of the 1886 Mdewakanton and who had
exclusive rights to the benefits of the 1886
lands.’’ Id. The property interests possessed
by the two classes of members of the three
communities were interspersed and resulted
in ‘‘a checkerboard pattern of land used that
severely diminishe[d] the effectiveness of
overall land management programs and community
development.’’ See id. at 6. In a
lame-duck session following the 1980 elections,
Congress statutorily addressed the disparate
property interests of the members of
the three communities in December 1980,
approximately one month after the communities
and the BIA signed the agreement for
the disbursement of the funds to the communities.
See Act of Dec. 19, 1980, Pub.L. No.
96–557, 94 Stat. 3262.

The 1980 Act provided that the 1886 lands,
which ‘‘were acquired and are now held by
the United States for the use or benefit of
certain Mdewakanton Sioux Indians’’ under
the Appropriations Acts, would henceforth be
‘‘held by the United States TTT in trust for’’
the three communities. 94 Stat. 3262.29 The
Act also contained a savings clause providing
that the Act would not ‘‘alter’’ any rights
then existing under ‘‘any contract, lease, or
assignment entered into or issued prior to
enactment of’’ the Act. Id. ‘‘Thus, all of the
individuals then holding assignments to the
1886 lands retained their rights to use the

land unaffected by the 1980 legislation.’’
Wolfchild VI, 559 F.3d at 1235.
The United States continued to ‘‘oversee
assignments that had been made before 1980
and were covered by Section 3 of the 1980
Act[,]’’ but no new assignments were made
by the Department after the passage of the
1980 Act. Def.’s Mot. at 6–7. Upon the death
of an assignee of the 1886 lands, the assignee’s
parcel of land was apparently shifted to
the control of the community that possessed
an interest in the surrounding land pursuant
to the 1980 Act. See id. at 7 (citing Gitchel v.
Minneapolis Area Director, 28 IBIA 46
(1995)). The three communities also assumed
the responsibility of ‘‘managing TTT
and issuing new assignments’’ for those 1886
lands not assigned to loyal Mdewakanton
prior to the passage of the 1980 Act. See
Def.’s Mot. at 6 (citing Smith v. Haliburton,
1982 U.S. Dist. Lexis 14243 *4–*5 (D.Minn.
Aug. 23, 1982)).

Most importantly for the court’s present
purpose, the 1980 Act did not address the
disposition of the funds that were derived
from the 1886 lands then held by Treasury.
See 94 Stat. 3262; Wolfchild VI, 559 F.3d at
1259 n. 14. Despite the silence of the 1980
Act as to the funds, the Department acted on
the presumption that the funds derived from
the 1886 lands ‘‘could be turned over to the
communities without notice to the 1886 beneficiaries.’’
Wolfchild I, 62 Fed.Cl. at 533.
As described above, the disbursement of the
funds was agreed prior to the passage of the
1980 Act, and the funds were given to the

29. The Act provided, in material part:
ll right, title, and interest of the United
States in those lands (including any structures or
other improvement of the United States on such
lands) which were acquired and are now held by
the United States for the use or benefit of certain
Mdewakanton Sioux Indians under TTT [the Appropriations
Acts], are hereby declared to hereafter
be held by the United States—,
(1) with respect to the some 258.25 acres of
such lands located within Scott County, Minnesota,
in trust for the Shakopee Mdewakanton
Sioux Community of Minnesota;
(2) with respect to the some 572.5 acres of
such lands located within Redwood County,
Minnesota, in trust for the Lower Sioux Indian
Community of Minnesota; and
(3) with respect to the some 120 acres of such
lands located in Goodhue County, Minnesota, in

trust for the Prairie Island Indian Community of
Minnesota.
Sec. 2. The Secretary of the Interior shall
cause a notice to be published in the Federal
Register describing the lands transferred by section
1 of this Act. The lands so transferred are
hereby declared to be a part of the reservations
of the respective Indian communities for which
they are held in trust by the United States.
Sec. 3. Nothing in this Act shall (1) alter, or
require the alteration, of any rights under any
contract, lease, or assignment entered into or
issued prior to enactment of this Act, or (2)
restrict the authorities of the Secretary of the
Interior under or with respect to any such contract,
lease, or assignment.
94 Stat. 3262.

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three communities beginning approximately
one month after the passage of the 1980 Act.
STANDARDS FOR DECISION
Motion to Amend
[2, 3] ‘‘The court should freely give leave
[to amend pleadings] when justice so requires.’’
Rule 15(a)(2) of the Rules of the
Court of Federal Claims (‘‘RCFC’’). The
decision to grant or deny amendment of a
complaint or answer is within the discretion
of the trial court, but ‘‘f the underlying
facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he
ought to be afforded an opportunity to test
his claim on the merits.’’ Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); see also Mitsui Foods, Inc. v. United
States, 867 F.2d 1401, 1403 (Fed.Cir.1989)
(Under Rule 15(a), ‘‘discretion should be exercised
liberally to permit such amendments.’’).
Absent a reason, such as ‘‘undue
delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure
deficiencies by amendments previously allowed,
undue prejudice to the opposing party
by virtue of allowance of the amendment[, or]
futility of amendment[,]’’ the motion to
amend should be granted. Foman, 371 U.S.
at 182, 83 S.Ct. 227; Mitsui Foods, Inc., 867
F.2d at 1403–04; see also Henry E. and
Nancy Horton Bartels Trust ex rel. Cornell
Univ. v. United States, 88 Fed.Cl. 105, 111
(2009), aff’d, 617 F.3d 1357 (Fed.Cir.2010).

Motion to Dismiss
[4–6] ‘‘Jurisdiction must be established
as a threshold matter before the court may
proceed with the merits of this or any other
action.’’ OTI Am., Inc. v. United States, 68
Fed.Cl. 108, 113 (2005) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 88–
89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)).
Plaintiffs bear the burden of establishing the
court’s subject matter jurisdiction over their
claim. See McNutt v. General Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189, 56
S.Ct. 780, 80 L.Ed. 1135 (1936). In undertaking
an analysis of subject matter jurisdiction,
the court must accept as true the facts
alleged in the complaint and draw all reasonable
inferences in favor of the plaintiffs. See

Henke v. United States, 60 F.3d 795, 797
(Fed.Cir.1995) (citing Scheuer v. Rhodes, 416
U.S. 232, 236–37, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974), overruled on other grounds as
noted in Francis v. Giacomelli, 588 F.3d 186,
192 n. 1 (4th Cir.2009)); Catawba Indian
Tribe of S.C. v. United States, 982 F.2d 1564,
1568–69 (Fed.Cir.1993).
[7–9] Jurisdiction over a claim against
the United States requires a waiver of sovereign
immunity combined with a cause of action
falling within the terms of that waiver.
See United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472, 123 S.Ct.
1126, 155 L.Ed.2d 40 (2003) (citing United
States v. Mitchell, 445 U.S. 535, 538–39, 100
S.Ct. 1349, 63 L.Ed.2d 607 (1980) (‘‘Mitchell
I ’’); United States v. Mitchell, 463 U.S. 206,
216–17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)
(‘‘Mitchell II ’’)). Such a waiver must be
‘‘unequivocally expressed.’’ Mitchell I, 445
U.S. 535 at 538, 100 S.Ct. 1349 (quoting
United States v. King, 395 U.S. 1, 4, 89 S.Ct.
1501, 23 L.Ed.2d 52 (1969)). The government
has consented to suit through the Indian
Tucker Act, 28 U.S.C. § 1505, which provides:
The United States Court of Federal
Claims shall have jurisdiction of any claim
against the United States accruing after
August 13, 1946, in favor of any tribe,
band, or other identifiable group of American
Indians residing within the territorial
limits of the United States or Alaska whenever
such claim is one arising under the
Constitution, laws or treaties of the United
States, or Executive orders of the President,
or is one which otherwise would be
cognizable in the Court of Federal Claims
if the claimant were not an Indian tribe,
band or group.
Claims that would ‘‘otherwise be cognizable
in the Court of Federal Claims if the claimant
were not an Indian tribe, band or group’’
include those founded upon the Tucker Act,
28 U.S.C. § 1491(a)(1), which waives immunity
for claims ‘‘founded either upon the Constitution,
or any Act of Congress or any
regulation of an executive department, or
upon any express or implied contract with
the United States, or for liquidated or unliq-

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uidated damages in cases not sounding in
tort.’’
[10, 11] Although serving as a waiver of
sovereign immunity, the Indian Tucker Act
does not itself ‘‘create[ ] a substantive right
enforceable against the Government by a
claim for money damages.’’ White Mountain
Apache, 537 U.S. at 472, 123 S.Ct. 1126.
As with the Tucker Act, a plaintiff grounding
its claim on the Indian Tucker Act must
demonstrate that some other source of law
creates a money-mandating right or duty
that falls within the ambit of the waiver of
sovereign immunity. See United States v.
Navajo Nation, ––– U.S. ––––, ––––, 129
S.Ct. 1547, 1551–52, 173 L.Ed.2d 429 (2009).
‘‘The other source of law need not explicitly
provide that the right or duty it creates is
enforceable through a suit for damages, but
it triggers liability only if it can be fairly
interpreted as mandating compensation by
the Federal Government.’’ Id. at 1552 (internal
quotations omitted).

[12, 13] ‘‘This ‘fair interpretation’ rule demands
a showing demonstrably lower than
the standard for the initial waiver of sovereign
immunity.’’ White Mountain Apache,
537 U.S. at 472, 123 S.Ct. 1126; see also
Mitchell II, 463 U.S. at 218–19, 103 S.Ct.
2961 (‘‘Because the Tucker Act supplies a
waiver of immunity for claims of this nature,
the separate statutes and regulations need
not provide a second waiver of sovereign
immunity, nor need they be construed in the
manner appropriate to waivers of sovereign
immunity.’’). Accordingly, ‘‘t is enough TTT
that a statute creating a Tucker Act right be
reasonably amenable to the reading that it
mandates a right of recovery in damages.’’
White Mountain Apache, 537 U.S. at 473,
123 S.Ct. 1126; see Adair v. United States,
497 F.3d 1244, 1250 (Fed.Cir.2007) (‘‘Tucker
Act jurisdiction requires merely that the
statute be fairly interpreted or reasonably
amenable to the interpretation that it mandates
a right of recovery in damages.’’) (citations
and internal quotations omitted). ‘‘
fair inference will do.’’ White Mountain
Apache, 537 U.S. at 473, 123 S.Ct. 1126. If
the court determines that the source of law
upon which plaintiffs rely is not money-mandating,
the court must dismiss the claim for
lack of subject matter jurisdiction under Rule
12(b)(1). Adair, 497 F.3d at 1251.
To survive a motion to dismiss for failure
to state a claim upon which relief can be
granted, ‘‘a complaint must contain sufficient
factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’ ’’
Ashcroft v. Iqbal, ––– U.S. ––––, ––––, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). A court ruling on a 12(b)(6)
motion to dismiss must not only ‘‘accept as
true the complaint’s undisputed factual allegations[,]’’
it must also ‘‘construe them in a
light most favorable to the plaintiff.’’ Cambridge
v. United States, 558 F.3d 1331, 1335
(Fed.Cir.2009) (citing Papasan v. Allain, 478
U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209
(1986); Gould, Inc. v. United States, 935
F.2d 1271, 1274 (Fed.Cir.1991)).
[14] A claim is facially plausible when the
plaintiff pleads facts such that ‘‘the court
[may] draw the reasonable inference that the
defendant is liable for the misconduct alleged.’’
Iqbal, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
The plaintiff need not show that it is probable
that it will succeed on the merits of the
case, but it must demonstrate ‘‘more than a
sheer possibility that a defendant has acted
unlawfully.’’ Iqbal, 129 S.Ct. at 1949. In the
context of claims arising under the Tucker
Act or the Indian Tucker Act, the standard
applied under RCFC 12(b)(6) means that if
‘‘the court concludes that the facts as pled do
not fit within the scope of a statute that is
money-mandating, the court shall dismiss the
claim on the merits under Rule 12(b)(6) for
failing to state a claim upon which relief can
be granted.’’ Adair, 497 F.3d at 1251; see
Greenlee Cnty. Ariz. v. United States, 487
F.3d 871, 876–77 (Fed.Cir.2007).
Motion for Summary Judgment
A grant of summary judgment is warranted
when the pleadings, affidavits, and evidentiary
materials filed in a case reveal that
‘‘there is no genuine issue as to any material
facts and that the movant is entitled to judgment
as a matter of law.’’ RCFC 56(c)(1);
see Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) (‘‘By its very terms, this standard
provides that the mere existence of some
alleged factual dispute between the parties
will not defeat an otherwise properly supported
motion for summary judgment; the
requirement is that there be no genuine
issue of material fact.’’). A material fact is
one ‘‘that might affect the outcome of the suit
under the governing law.’’ Anderson, 477
U.S. at 248, 106 S.Ct. 2505. Whether a fact
is material will, of course, depend upon the
substantive law of the case. Id. A genuine
dispute is one that ‘‘may reasonably be resolved
in favor of either party.’’ Id. at 250,
106 S.Ct. 2505.

The party moving for summary judgment
bears the burden of demonstrating the absence
of any genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Consequently, ‘‘the inferences to be drawn
from the underlying facts TTT must be
viewed in the light most favorable to the
party opposing the motion.’’ Matsunutsa
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986) (quoting United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8
L.Ed.2d 176 (1962)). If the moving party
carries its burden of establishing that there
is no genuine issue of material fact, the nonmoving
party ‘‘may not rely merely on allegations
or denials in its own pleadings; rather
its response must—by affidavits or as otherwise
provided in this rule—set out specific
facts showing a genuine issue for trial.’’
RCFC 56(e)(2); see Long Island Sav. Bank,
FSB v. United States, 503 F.3d 1234, 1244
(Fed.Cir.2007) (‘‘Once the moving party has

satisfied its initial burden, the opposing party
must establish a genuine issue of material
fact and cannot rest on mere allegations, but
must present actual evidence.’’). Where an
examination of the record, ‘‘taken as a
whole,’’ could not lead a rational trier of fact
to find for the non-moving party, there is no
‘‘genuine issue for trial’’ and summary judgment
is appropriate. Matsunutsa, 475 U.S.
at 587, 106 S.Ct. 1348 (quoting First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569
(1968)).

ANALYSIS
Legally, this case is just as tangled and
convoluted as the historical record of events.
A. Amendment of Complaints
Plaintiffs request leave of the court to
amend their complaints to state counts asserting
their right to the funds derived from
the 1886 lands based upon the statutory use
restrictions contained in the Appropriations
Acts. See Pls.’ Mot. to Am. Compl. (‘‘Pls.’
Mot. to Am.’’); Pls.’ Sixth Am. Compl.
(‘‘Sixth Am. Compl.’’). Plaintiffs’ proposed
amendments rest on the same operative facts
as those addressed in their prior complaints;
the recasted claims simply reflect the basis
on which the Federal Circuit decided Wolfchild
VI and the remand ordered by that decision.
See 559 F.3d at 1259 n. 14.30 The
government will not suffer prejudice as a
result of these amendments as it has long
had notice of plaintiffs’ demand for relief
based upon the terms of the Appropriations
Acts and of the factual history surrounding
this case. See Foman, 371 U.S. at 182, 83

30. Included in plaintiffs’ proposed sixth amended
complaint are other alleged counts that: (1)
assert that the statutory use restrictions created a
duty on the part of the government to collect
lease and other revenue from the three communities
and distribute gaming proceeds to the
plaintiffs under the Indian Gaming Regulatory
Act, Pub. Law No. 100–497, 102 Stat. 2467
(1988) (codified as amended at 18 U.S.C. § 1166
and 25 U.S.C. §§ 2701–21) (‘‘Indian Gaming
Act’’), Sixth Am. Compl. ¶¶ 83–98; (2) aver that
the Department’s adoption of a so-called ‘‘recognition
test’’ for determining the identity of the
loyal Mdewakanton violated the statutory use
restrictions, Sixth Am. Compl. ¶¶ 99–106; and

(3) ask the court to issue an order setting aside
provisions in the three communities’ constitutions,
ordinances, resolutions, censuses, rolls,
and tribal revenue-allocation plans ‘‘which are
repugnant to the tatutory se [r]estriction’’
and remanding the matter to the Department of
Interior pursuant to 28 U.S.C. § 1491(a)(2),
Sixth Am. Compl. ¶ 116. The court will not
parse the individual paragraphs of plaintiffs’
amended complaint in ruling on plaintiffs’ motion
to amend; rather, the merits of plaintiffs’
particular claims will be addressed infra, after
the court determines whether the motions to
amend should be granted as a general matter.

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S.Ct. 227; Mitsui Foods, Inc., 867 F.2d at
1403–04.31
The government asserts, however, that
such amendments would be ‘‘futile’’ and
plaintiffs’ claims also would be barred by the
statute of limitations. See Def.’s Opp’n at 5,
15; Def.’s Mot. at 30–36. The plaintiffs respond
that amendment is necessary in light
of the Federal Circuit’s remand order and
that this court’s prior ruling regarding the
statute of limitations in Wolfchild I, 62 Fed.
Cl. at 547–49, largely dispenses with the
government’s present statute-of-limitations
argument. See Pls.’ Reply to Def.’s Opp’n to
Pls.’ Mot. to Am. (‘‘Pls.’ Reply’’) at 4–7, 14–
17.

1. Futility.
[15, 16] Where an amendment would be
futile, a court should disallow the plaintiff’s
motion to modify its complaint. See Foman,
371 U.S. at 182, 83 S.Ct. 227; Mitsui Foods,
Inc., 867 F.2d at 1403–04. In assessing the
‘‘futility’’ of an amendment, the court should
apply ‘‘the same standard of legal sufficiency
as [it] applies under Rule 12(b)(6).’’ Merck
& Co., Inc. v. Apotex, Inc., 287 Fed.Appx.
884, 888 (Fed.Cir.2008) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir.1997)); see also Taylor
Consultants, Inc. v. United States, 90 Fed.Cl.
531, 546 (2009) (same). ‘‘Thus, an amendment
to add a [ ]claim is futile if the amendment
fails to state a claim upon which relief
can be granted.’’ Merck, 287 Fed.Appx. at
888.

[17] The government argues that an
amendment to plaintiffs’ complaint would be
‘‘futile’’ because ‘‘the Federal Circuit did not
recognize a viable claim for statutory use
restriction in its opinion holding that

laintiffs could not assert a claim for breach
of trust’’ and that such a claim would be
‘‘directly contrary to the Federal Circuit’s
findings and cannot be a basis for a lawsuit
against the United States.’’ Def.’s Opp’n at
6, 9.32 The government additionally asserts
that ‘‘[t]o the extent that a[ny] statutory use
restriction w[ere] created by the Appropriations
Acts, any interest

laintiffs may have
had in the TTT funds w[ere] terminated by
the 1980 Act.’’ Id. at 14. Plaintiffs counter
that the Federal Circuit’s statement that
‘‘the Appropriations Acts are best interpreted
as merely appropriating funds subject to
TTT statutory use restriction, and not creating
a trust relationship[,]’’ Wolfchild VI,
559 F.3d at 1240, must be read to mean that
the Court of Appeals recognized that plaintiffs
had a viable claim predicated on the
statutory use restrictions and that such recognition
is ‘‘the law of the case.’’ Pls.’ Reply
at 4–7.33

[18] Both parties misapprehend the Federal
Circuit’s opinion. The Federal Circuit
indeed held that the Appropriations Acts
were subject to statutory use restrictions, see
Wolfchild VI, 559 F.3d at 1240, but it quite
explicitly abstained from addressing the merits
of any claim that plaintiffs would have
under such restrictions. The court stated:

31. The government denigrates the plaintiffs’ basis
for the amendment by contending that it
relies on ‘‘the appellate court’s passing comments’’
regarding the Appropriations Acts. Def.’s
Opp’n to Pl.’s Mots. to Am. Compls. (‘‘Def.’s
Opp’n’’) at 9. Yet, that disparagement ignores the
remand order. The Federal Circuit remanded
the case to this court address, to the extent
necessary, the funds derived from the 1886
lands, see Wolfchild VI, 559 F.3d at 1259 n. 14;
in these circumstances, justice would require
that the plaintiffs be given leave to amend their
complaints to take account of the Federal Circuit’s
remand. See RCFC 15(a)(2).
32. In its opposition to plaintiffs’ motion to
amend, the government alleges that the amendment
is futile also because the court lacks subject
matter jurisdiction over the case. Def.’s Opp’n
at 11–14. The court addresses this argument in

its analysis of the government’s motion to dismiss
for lack of subject matter jurisdiction.
33. The ‘‘law of the case’’ doctrine provides that
when a case has been once decided by a superior
court and remanded to the lower court, whatever
was before the superior court and disposed of by
its decree, is considered finally settled. The lower
court is bound by the decree as the law of the
case, and must carry it into execution, according
to the mandate. See In re Sanford Fork & Tool
Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed.
414 (1895); Gould, Inc. v. United States, 67 F.3d
925, 930 (Fed.Cir.1995) (The law of the case
doctrine ‘‘prevent the relitigation of issues that
have been decided and TTT ensure that trial
courts follow the decision of appellate courts.’’)
(citation omitted); see also Banks v. United
States, 76 Fed.Cl. 686, 689–90 (2007) (describing
the law of the case doctrine).

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The parties devote some attention to the
question whether it was lawful for the
Interior Department, following the 1980
Act, to transfer to the three communities
approximately $60,000 in funds that had
been collected as proceeds from the sale,
use, or leasing of certain of the 1886 lands,
given that the 1980 Act was silent as to the
disposition of those funds. See Wolfchild
I, 62 Fed.Cl. at 549–50. That issue does
not affect our analysis of the two certified
questions, however, and we leave that issue
to be addressed, to the extent necessary,
in further proceedings before the trial
court.

Wolfchild VI, 559 F.3d at 1259 n. 14 (emphasis
added). The Federal Circuit’s ruling was
thus limited to its answer to the two questions
certified for interlocutory appeal—
namely, that the Appropriations Acts did not
create a trust for the loyal Mdewakanton and
that any trust so created in land would have
been terminated by the 1980 Act. See id. at
1255, 1260.34 On the one hand, recognition
that the Appropriations Acts were subject to
statutory use restrictions cannot be construed
to mean that it concluded that plaintiffs
have a meritorious claim based on those
restrictions. On the other hand, neither can
the Federal Circuit’s ruling be read to foreclose
the possibility that the statutory use
restrictions, which it recognized, could serve
as the basis for a legitimate claim by the
plaintiffs.

[19] Thus, there is no ‘‘law of the case’’
as to the merits of plaintiffs’ statutory-userestrictions
claim and as to the accompanying
question of whether it was lawful for the
Department to disburse the funds at issue to
the communities. Accordingly, the court
may, and, indeed, must—given the parties’
contentions—examine the merits of plaintiffs’
claims under the Federal Circuit’s remand
order. See Engel Indus., Inc. v. Lockformer
Co., 166 F.3d 1379, 1382 (Fed.Cir.1999)
(‘‘[W]hile a mandate is controlling as to matters

within its compass, on the remand a
lower court is free as to other issues.’’) (quoting
Sprague v. Ticonic Nat’l Bank, 307 U.S.
161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939));
see also Laitram Corp. v. NEC Corp., 115
F.3d 947, 951 (Fed.Cir.1997) (‘‘Upon return
of its mandate, the district court cannot give
relief beyond the scope of th[e] mandate, but
it may act on ‘matters left open by the
mandate.’ ’’) (quotation omitted).

[20] Plaintiffs’ proposed amendments
could have legal viability. The statutory use
restrictions reflect mandatory terms of the
Appropriations Acts and may be sufficient to
provide a ‘‘fair inference’’ that the government
had a money-mandating duty to the
loyal Mdewakanton and their lineal descendants
that was contravened when the Department
disbursed the funds held in Treasury
trust accounts to the three communities.
As the Federal Circuit has observed: ‘‘The
court has found Congress provided such
damage remedies where the statutory text
leaves the government no discretion over
payment of claimed funds.’’ Samish Indian
Nation v. United States, 419 F.3d 1355, 1364
(Fed.Cir.2005); see also Hopi Tribe v. United
States, 55 Fed.Cl. 81, 86–87 (2002) (‘‘If the
language and effect of the statute is mandatory,
then the court possesses jurisdiction.’’)
(quoting Lewis v. United States, 32 Fed.Cl.
59, 64 (1994)). Further, plaintiffs’ claims find
support in Reuben Quick Bear v. Leupp, 210
U.S. 50, 28 S.Ct. 690, 52 L.Ed. 954 (1908).
Under Quick Bear, a court should trace the
historical origins of the funds at issue and
determine whether the funds can be characterized
as mere gratuitous appropriations or
whether the funds are in reality, or have
been treated as though they are, ‘‘Indians’
money.’’ See id. at 77–82, 28 S.Ct. 690.

[21] Any claim plaintiffs may have based
on statutory use restrictions to pre–1980
funds is also unaffected by the 1980 Act.35


34. The Federal Circuit’s conclusions as to these
two issues certainly constitute ‘‘the law of the
case.’’ The court accordingly cannot revisit
these matters.
35. In support of its argument that the 1980 Act
terminated any interest plaintiffs may have had
in the funds, the government quotes the Federal

Circuit’s opinion in Wolfchild VI noting that
‘‘[t]he fact that the savings clause was regarded
as necessary to protect the current assignees is a
clear indication that the drafters viewed the Act
as otherwise terminating any equitable interests
of the 1886 Mdewakantons.’’ Def.’s Opp’n at 15.
The government fails to quote, however, the last
three words of that sentence, which read: ‘‘in

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When interpreting a statute, the court must
look first to the statutory language. See
Strategic Hous. Fin. Corp. of Travis Cnty. v.
United States, 608 F.3d 1317, 1323 (Fed.Cir.
2010) (citing Jimenez v. Quarterman, 555
U.S. 113, ––––, 129 S.Ct. 681, 685, 172
L.Ed.2d 475 (2009); Lamie v. United States
Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023,
157 L.Ed.2d 1024 (2004)); see also Park ’N
Fly, Inc. v. Dollar Park and Fly, Inc., 469
U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582
(1985) (‘‘Statutory construction must begin
with the language employed by Congress and
the assumption that the ordinary meaning of
that language accurately expresses the legislative
purpose.’’). In this instance, however,
the statute contains no text pertaining to the
disposition of the funds. See 94 Stat. 3262;
Wolfchild VI, 559 F.3d at 1259 n. 14 (‘‘[T]he
1980 Act was silent as to the disposition of
th[e] funds.’’).

[22, 23] The Department simply presumed
that it could distribute the funds to
the three communities on the basis of the
1980 Act, and memorialized that view in a
letter from the Field Solicitor to the Area
Director. J.A. 00878–80 (Letter from Elmer
T. Nitzschke to Edwin Demery (Feb. 6, 1981)
(‘‘Nitzschke 1981 Letter’’)); see Wolfchild I,
62 Fed.Cl. at 532–33. Where the text of
statute does not address a particular issue,
an agency’s interpretation of the statute as
contained in informal opinion letters or otherwise
not embodied in regulations is ‘‘entitled
to respect’’ under Skidmore v. Swift &
Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed.
124 (1944), ‘‘but only to the extent that those
interpretations have the ‘power to persuade.’
’’ Christensen v. Harris Cnty., 529
U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d
621 (2000) (quoting Skidmore, 323 U.S. at
140, 65 S.Ct. 161); id. (‘‘Interpretations such
as those in opinion letters—like interpretations
contained in policy statements, agency
manuals, and enforcement guidelines, all of
which lack the force of law—do not warrant
Chevron-style deference.’’) (referring to
Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984)); see also United States
v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct.
2164, 150 L.Ed.2d 292 (2001) (‘‘Interpretive
choices’’ of agencies may be entitled to Skidmore
deference).

[24] In applying the ‘‘limited deference’’
of Skidmore, the court considers ‘‘the thoroughness
evident in [the agency’s] consideration,
the validity of its reasoning, its consistency
with earlier and later pronouncements,
and all those factors which give it power to
persuade, if lacking power to control.’’ Skidmore,
323 U.S. at 140, 65 S.Ct. 161; see
Mead, 533 U.S. at 228, 121 S.Ct. 2164 (same);
see also Cathedral Candle, 400 F.3d at 1366
(Under Skidmore, the court should ‘‘defer to
an agency interpretation of the statute that it
administers if the agency has conducted a
careful analysis of the statutory issue, if the
agency’s position has been consistent and
reflects agency-wide policy, and if the agency’s
position constitutes a reasonable conclusion
as to the proper construction of the
statute, even if we might not have adopted
that construction without the benefit of the
agency’s analysis.’’).

[25] The court also considers the extent
to which the agency’s interpretation relies
upon its ‘‘specialized experience and broader
investigations and information.’’ Mead, 533
U.S. at 234, 121 S.Ct. 2164 (quoting Skidmore,
323 U.S. at 139, 65 S.Ct. 161); see also
Cathedral Candle, 400 F.3d at 1367 (applying
Skidmore deference, taking into account the
International Trade Commission’s ‘‘specialized
expertise’’ and broader access to information
in ruling on Commission’s exclusion
of plaintiffs from the list of potential affected
domestic producers under the Byrd Amendment,
19 U.S.C. § 1675c); Rubie’s Costume
Co. v. United States, 337 F.3d 1350, 1356–60
(Fed.Cir.2003) (considering the United States
Customs Service’s ‘‘specialized experience’’
and ‘‘expertise’’ in classifying goods in ruling
on Customs Service’s tariff classification for
certain imported textile costumes).
The majority of the Field Solicitor’s letter
is devoted to interpreting the 1980 Act as it

those lands.’’ Wolfchild VI, 559 F.3d at 1259
(emphasis added). Selective quotation such as
this does little to aid the government’s case.

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applied to the 1886 lands, see J.A. 00878–80
(Nitzschke 1981 Letter); however, in the final
paragraph, the Field Solicitor addresses
the funds:

One further matter for consideration is the
accumulated revenues currently held by
the Bureau identifiable to the lands in
question. It is my understanding that the
apportioned share belonging to or identified
for the Shakoppee Community has
already been turned over to that group.
Similar action should be taken as to the
other two communities claiming an interest
in these monies. As to how the respective
communities can utilize these funds, it is
interesting to note, as pointed out in the
Secretary’s letter to OMB that the cost of
acquiring the land in question was offset
against the recovery by the Mdewakanton
and Wahpakoot Bands of Sou[ ]x Indians
against the United States (57 Court of
Claims 357 (1932 [—sic—57 Ct. Cl. 357
[ (1922) ] )) the beneficiaries of which included
many individuals other than those
for whom such land was held by the United
States. In light of this bit of information
it may be that tribal use of these
impounded funds may include other than
those persons previously identified as eligible
Mdewakantons for purposes of occupying
the land in question.
J.A. 00879 (Nitzschke 1981 Letter).

This singular paragraph appears to constitute
the entirety of the ‘‘analysis’’ the Department
devoted to considering the applicability
of the 1980 Act to the funds.36 The
letter shows that the Department did not
engage in a thorough consideration of the
issue. In fact, it did not consider the issue at
all; it simply assumed, without deliberation
or analysis, that the Act applied.37
The Field Solicitor’s opinion regarding the
disposition of the funds also was issued after
one third of the funds had already been
distributed to the Shakoppee Community.
J.A. 00879 (Nitzschke 1981 Letter) (‘‘It is my
understanding that the apportioned share belonging
to or identified for the Shakopee
Community has already been turned over to
that group.’’); Def.’s Mot., Ex. K (Public
Voucher (Dec. 30, 1980)) (documenting distribution
of $37,835.88 to the Shakopee Mdewakanton).
Thus, the Department’s ‘‘consideration’’
of the issue, to the extent that the
Field Solicitor’s letter can be deemed as
such, only factored into the agency’s action
after the distributions had begun.

Consequently, the court cannot conclude
that the Department engaged in the sort of
thoughtful analysis of the fund-disposition issue
that warrants Skidmore deference. See,
e.g., Federal Nat’l Mortg. Ass’n v. United
States, 379 F.3d 1303, 1308–10 (Fed.Cir.2004)
(concluding that Internal Revenue Service’s
interpretation of a statute was not entitled to
Skidmore deference where it ‘‘set[ ] forth no
reasoning in support of its conclusion’’ and
was ‘‘unaccompanied by any supporting rationale,’’
but allowing an agency interpretation
to stand based upon the ground that a waiver
of sovereign immunity must be strictly construed.).

Furthermore, the action by the Department
after adoption of the 1980 Act was
directly contrary to its conclusions respecting
the status and proper ownership of the funds
prior to 1980. See supra, at 320–22 (addressing
BIA’s positions from 1975–1980). This
volte face by the Department as to the fundamental
question of who was entitled to the
pre–1980 funds disfavors deferring to the
Department’s actions after the 1980 Act was
adopted. See Cathedral Candle Co., 400
F.3d at 1367 (indicating that where the agency’s
current position is ‘‘inconsistent with

36. The only additional contemporaneous document
in the record that touches on the issue of
income from the 1886 lands is a letter from the
Acting Area Director of the BIA dated January
15, 1981 to the Chairman, Community Council,
Lower Sioux Community. J.A. 00876 (Letter
from David Granum to Leon Columbus). In that
letter, the Director simply states that ‘‘income
derived from the[ ] [1886] lands in the future will
be utilized as other income from tribal land.’’
Id. The letter does not include any opinion on the

status of the income or funds derived from the
1886 lands prior to the 1980 Act. Id.
37. The Field Solicitor’s citation of the fact that
the 1922 judgment in the Medawakanton case
reflected an offset for funds provided by the
Appropriations Acts was inapposite. The judgment
in that case did not modify, and could not
have modified, the statutory terms of the Appropriations
Acts.

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positions the [agency] TTT has previously taken,’’
it may counsel against Skidmore deference)
(citing Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 212–13, 109 S.Ct. 468,
102 L.Ed.2d 493 (1988)). In short, although
the Department certainly possesses ‘‘specialized
experience’’ in dealing with Native
American matters, the Nitzschke 1981 Letter
did not draw on any expertise or specialized
information to interpret the scope of the 1980
Act.

[26] Finally, the agency’s position does
not constitute ‘‘a reasonable conclusion as to
the proper construction of the statute.’’ Cathedral
Candle Co., 400 F.3d at 1366. At
every possible point, the 1980 Act specifies
that it only applied to the 1886 lands. The
name of the Act is ‘‘An Act to provide that
certain land of the United States shall be
held by the United States in trust for certain
communities of the Mdewakanton Sioux in
Minnesota.’’ 94 Stat. 3262 (emphasis added).
Although the title of a statute cannot limit
the plain meaning of the text, ‘‘statutory
titles and section headings ‘are tools available
for the resolution of a doubt about the meaning
of statute.’ ’’ Florida Dep’t of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. 33, 47,
128 S.Ct. 2326, 171 L.Ed.2d 203 (2008) (quoting
Porter v. Nussle, 534 U.S. 516, 528, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002)). The 1980
Act states that ‘‘all right, title, and interest of
the United States in those lands (including
any structures or other improvements of the
United States on such lands) TTT are hereby
declared to hereafter be held by the United
States [in trust for the three communities].’’
1980 Act, § 1, 94 Stat. 3262 (emphasis added).
It then describes the lands in detail
down to the hundredths of an acre. See id.
§ 2. It finally requires the Secretary to publish
notice in the Federal Register describing
the lands being transferred and recites the
so-called ‘‘savings clause’’ preserving any prior
contract, lease, or assignment interests in
the land. Id. §§ 2, 3.
Notably, the sponsor of the legislation in
the House, Representative Richard Nolan of
Minnesota, was aware of the funds’ existence.
See J.A. 02547–49 (Area Director’s 1975

Mem.). In introducing the bill, Rep. Nolan
defined its scope as ‘‘legislation which will
change the legal status of tracts of land in
Minnesota presently held by the United
States for exclusive use by the descendants
of the Mdewakanton Sioux who resided there
on May 20, 1886.’’ 26 CONG. REC. 8,897 (emphasis
added). Rep. Nolan did not mention
the funds in his introductory statement, see
id. at 8,897 to 8,898, nor were the funds
mentioned in any of the other legislative
history materials surrounding the 1980 Act.
The specific choice not to include a provision
for disposition of the funds could not have
been attributable to inadvertence particularly
in light of the suggestion in the Area Director’s
1976 Memorandum that the disposition
of the funds needed to be included ‘‘with
legislation converting the title’’ to enable the
Department to distribute the funds to the
three communities. See J.A. 01116 (Area
Director’s 1976 Mem.). Instead, this is yet
another instance where ‘‘[t]he best evidence
of congressional intent is the plain meaning
of the statutory language at the time Congress
enacted the statute.’’ Strategic Hous.
Fin. Corp. of Travis Cnty., 608 F.3d at 1323.

The silence of the 1980 Act as to the pre–
1980 funds, particularly in light of the detailed
nature of the statute and the legislative
history, cannot be read to terminate any
interest plaintiffs may have in those funds.
The 1980 Act also did not constitute a repeal,
‘‘implied or otherwise,’’ of the Appropriations
Acts. Wolfchild VI, 559 F.3d at 1258 n. 13.
Thus, the court will not defer to the Department’s
actions disposing of the pre–1980
funds after passage of the 1980 Act, and it
instead concludes that the 1980 Act does not
affect plaintiffs’ claims in those funds.38

2. Statute of limitations.
[27–29] Generally, suits against the United
States filed in this court must be filed
within six years after accrual of the cause of
action. 28 U.S.C. § 2501. Because this statute
of limitations circumscribes the scope of
the government’s waiver of sovereign immunity,
it is ‘‘jurisdictional’’ in nature and must
be construed strictly. See John R. Sand &

38. However, as explained infra, the 1980 Act
does affect plaintiffs’ claim that they are entitled
to funds derived from the 1886 lands after the
passage of the 1980 Act.

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Gravel Co. v. United States, 552 U.S. 130,
133–34, 128 S.Ct. 750, 169 L.Ed.2d 591
(2008); Hopland Band of Pomo Indians v.
United States, 855 F.2d 1573, 1576–77 (Fed.
Cir.1988). The court may not consider
whether a case warrants equitable tolling, see
John R. Sand & Gravel Co., 552 U.S. at 133–
34, 128 S.Ct. 750, or imply exceptions to the
limitations period. See Hopland Band of
Pomo Indians, 855 F.2d at 1577. However,
in this instance Congress has acted by statute
to toll the limitations period.
In a series of appropriations acts for the
Department of the Interior beginning in
1990, Congress began enacting ‘‘provisions
which suspend accrual of the statute of limitations
for certain tribal trust claims.’’ Shoshone
Indian Tribe of the Wind River Reservation,
Wyo. v. United States, 93 Fed.Cl.
449, 459 (2010).39 At the time of the plaintiffs’
filing of their initial complaint in this
case, the version of that provision, referred
to as ‘‘the Indian Trust Accounting Statute’’
or ‘‘ITAS,’’ provided:

[N]otwithstanding any other provision of
law, the statute of limitations shall not
commence to run on any claim, including
any claim in litigation pending on the date
of the enactment of this Act, concerning
losses to or mismanagement of trust funds,
until the affected tribe or individual Indian
has been furnished with an accounting of
such funds from which the beneficiary can
determine whether there has been a loss.
Pub.L. No. 108–108, 117 Stat. 1241, 1263
(Nov. 10, 2003). The Federal Circuit has
held that the Indian Trust Accounting Stat-

Statute
displaces the six-year general statute of
limitations for claims falling within its terms,
and that it postpones the beginning of the
limitations period until an accounting has
been provided to the affected beneficiary.
Shoshone Indian Tribe of Wind River Reservation
v. United States, 364 F.3d 1339, 1346–
47 (Fed.Cir.2004).40

The government argues that the Indian
Trust Accounting Statute or ‘‘Appropriations
Rider,’’ as it calls the provision, does not
apply to plaintiffs’ claims because those
claims are ‘‘based upon funds and lands
which were not held in trust by the United
States for

laintiffs.’’ Def.’s Mot. at 35; see
also Def.’s Opp’n at 16–17. The government
also argues that the plaintiffs assert ‘‘mismanagement-
styled claims’’ not cognizable
under the ITAS. Def.’s Mot. at 36. Plaintiffs
respond that the Department’s placement of
funds derived from the 1886 lands into Treasury
trust fund accounts places their claims
squarely within the ambit of the ITAS. Pls.’
Reply at 14–17; see also Pls.’ Cross. Mot. at
47–48.

[30] The government is mistaken in its
view that the Federal Circuit’s ruling regarding
plaintiffs’ trust claim dispenses with the
statute-of-limitations issue. While the monies
at issue were derived from lands said to
be held under use restrictions and not in
trust for the loyal Mdewakanton, see Wolfchild
VI, 559 F.3d at 1255, it does not follow
that funds stemming from those lands could
not have been held in trust by the government.
41

39. A version of the 1990 provision has been
adopted each year since, with minor changes.
See Shoshone, 93 Fed.Cl. at 459 n. 9.
40. In Shoshone, the Federal Circuit was interpreting
a prior version of the Indian Trust Accounting
Statute, Pub.L. No. 108–7, 117 Stat. 11
(Feb. 20, 2003), which nonetheless was identical
to the one applicable to this case. See 364 F.3d
at 1344.
41. Where the government holds any Indian money,
there is a strong presumption that those funds
are held in trust. See, e.g., Loudner v. United
States, 108 F.3d 896, 900 (8th Cir.1997)
(‘‘[T]here is a presumption that absent explicit
language to the contrary, all funds held by the
United States for Indian tribes are held in trust.’’
(quoting Rogers v. United States, 697 F.2d 886,

890 (9th Cir.1983) (emphasis added))); Moose v.
United States, 674 F.2d 1277, 1281 (9th Cir.1982)
(‘‘[W]here the United States holds funds for Indian
tribes, a trust relationship exists unless there
is explicit language to the contrary.’’); American
Indians Residing on Maricopa–Ak Chin Reservation
v. United States, 667 F.2d 980, 1002 (Ct.Cl.
1981) (‘‘Where the [g]overnment takes on or has
control and supervision over tribal money or
property, the normal relationship is fiduciary unless
Congress expressly has provided otherwise.
Defendant must account for all Indian money
that is in its hands, both that classified as Indian
Money Proceeds of Labor and deposited in the
United States Treasury and that called Individual
Indian Moneys and held outside the Treasury.’’).
‘‘This ‘trust relationship extends not only to Indian
Tribes as governmental units, but to tribal
members living collectively or individually, on or

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The Department of Interior has adopted
guidelines that govern the management by
the BIA of ‘‘Trust Funds for Tribes and
Individual Indians.’’ See 25 C.F.R. Chapter
I, Part 115. Those guidelines define ‘‘trust
funds’’ as ‘‘money derived from the sale or
use of trust lands, restricted fee lands, or
trust resources and any other money that the
Secretary must accept into trust.’’ 25 C.F.R.
§ 115.002 (emphasis added). The monies at
issue ostensibly would fit under the heading
of money derived from ‘‘restricted fee lands.’’
However, that term has been defined in the
Department’s regulations as having a restrictive
meaning pertinent to allottees only. Id.
(‘‘Restricted fee land(s) means the land the
title to which is held by an individual Indian
or a tribe and which can only be alienated or
encumbered by the owner with the approval
of the Secretary because of limitations contained
in the conveyance instrument pursuant
to federal law.’’) The Federal Circuit’s
ruling that the Appropriations Act did not
vest any form of title to the 1886 lands in the
loyal Mdewakanton as a group or in the
individual assignees forecloses classifying the
funds at issue as money derived from ‘‘trust
lands’’ or ‘‘restricted fee lands.’’

Nonetheless, ‘‘trust funds’’ are also defined
as embracing ‘‘any other money that the
Secretary must accept into trust.’’ 25 C.F.R.
§ 115.002. At the time of the 1975 Report by
the BIA, the funds at issue were held in
three Indian Money ‘‘Proceeds of Labor’’
Treasury Accounts (Account 147158, ‘‘Proceeds
of Labor, Lower Sioux Indian CommuCommunity,’’
Account 147043, ‘‘Proceeds of Labor,
Prairie Island Indian Community,’’ and Account
147436, ‘‘Proceeds of Labor, Mdewakanton
and Wahpakoota.’’) 42 and four IIM
accounts. See Def.’s Mot., Ex. C. Pursuant
to the 1975 Report, all of the funds were
placed in Treasury Account 147436 ‘‘Proceeds
of Labor, Mdewakanton and Wahpakoota’’
and its associated interest account,
147936. See id.

Proceeds–of–Labor accounts are statutorily
classified as ‘‘trust funds’’ accounts. See
Permanent Appropriation Repeal Act of
1934, ch. 756, § 20, 48 Stat. 1224, 1233 (codified
as amended at 31 U.S.C. § 1321(a)(20)
(2004)) (classifying ‘‘Indian moneys, proceeds
of labor, agencies, schools, and so forth’’ as
‘‘trust funds’’); see also Short v. United
States, 50 F.3d 994, 998 (Fed.Cir.1995) (subjecting
Proceeds–of–Labor accounts to the
statutory requirements applicable to ‘‘trust
funds’’ and funds ‘‘held in trust’’ by the United
States); Red Lake Band of Chippewa
Indians v. Barlow, 834 F.2d 1393, 1395 n. 4
(8th Cir.1987) (‘‘The Secretary apparently
maintains four general trust accounts in the
name of the Red Lake Band. The one of
primary concern here is the ‘Proceeds–of–
Labor’ account.’’).

That Proceeds–of–Labor accounts are
‘‘trust fund’’ accounts finds further support in
the numbers designated for the accounts. In
Chippewa Cree Tribe of the Rocky Boy’s
Reservation v. United States, 69 Fed.Cl. 639,
653 (2006), the court examined the Treasury


off the reservation.’ ’’ Loudner, 108 F.3d at 901
(quoting Little Earth of United Tribes, Inc. v.
Department of Housing and Urban Dev., 675
F.Supp. 497, 535 (D.Minn.1987), amended, 691
F.Supp. 1215 (D.Minn.1988), aff’d, 878 F.2d 236
(8th Cir.1989)); cf. Morton v. Ruiz, 415 U.S. 199,
236, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (‘‘The
overriding duty of our Federal Government to
deal fairly with Indians wherever located [on or
off reservation] has been recognized by this
Court on many occasions.’’).
42. Proceeds–of–Labor accounts were created
consequent upon adoption of the Act of March 3,
1883, ch. 141, 22 Stat. 582, 590, which provided,
in pertinent part: ‘‘[T]he proceeds of all pasturage
sales of timber, coal, or other product of any
Indian reservation TTT and not the result of the
labor of any member of such tribe, shall be
covered into the Treasury for the benefit of such

tribe.’’ In 1887, Congress authorized the Secretary
of the Interior to use the money deposited
into these accounts ‘‘for the benefit of several
tribes on whose account said money was covered
in, in such way and for such purposes as in his
discretion he may think best.’’ Act of March 2,
1887, ch. 320, 24 Stat. 449, 463. The 1883 and
1887 acts were later amended in 1926 to provide
that ‘‘all miscellaneous revenues derived from
Indian reservations, agencies, and schools which
are not required by existing law to be otherwise
disposed of, shall be covered into the Treasury
TTT under the caption ‘Indian moneys, proceeds
of labor.’ ’’ Act of May 17, 1926, ch. 309, § 1, 44
Stat. 560 (now codified as 25 U.S.C. § 155). The
1926 Act also authorized the Secretary to expend
the funds ‘‘for the benefit of the Indian tribes,
agencies, and schools on whose behalf they are
collected.’’ Id. In 1982, Congress abolished the
use of Proceeds–of–Labor funds effective September
30, 1982. See 25 U.S.C. § 155b.

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accounting system used ‘‘to account for trust
and other moneys received by the United
States government.’’ Under that system,
‘‘all appropriated moneys and funds collected
by the various departments of government
are assigned account numbers that indicate
the class of receipt or appropriation.’’ Id.
Treasury funds are given ‘‘master symbols’’
to designate the type of funds within the
account. Id. (quoting King v. United States,
107 Ct.Cl. 223, 234–35, 68 F.Supp. 206
(1946)).43 Master symbols 0001 to 5999 designate
‘‘General Funds,’’ and master symbols
6000 to 6999 designate ‘‘Special Funds.’’ Id.
(quoting King, 107 Ct.Cl. at 234–35, 68
F.Supp. 206). ‘‘Master symbols 7000 to 9999
designate ‘Trust Funds,’ which represent
moneys received by the United States for the
purposes specified in and for disbursement in
accordance with the terms of the arrangements
under which they are accepted.’’ Id.
at 653 (quoting King, 107 Ct.Cl. at 234–37, 68
F.Supp. 206)

The full account numbers assigned by
Treasury to accounts that held the funds at
issue were account nos. 14x7158, 14x7043,
and 14x7436, with all of the funds ultimately
being deposited in account 14x7436. See
Def.’s Mot., Ex. C (1975 Report). ‘‘The numerical
code ‘14’ [placed before each account
number] identifies the Department of Interior,
while the letter ‘x’ denotes that the appropriation
is ongoing and without a fiscal year
limitation under the authority of the [Permanent
Appropriation Repeal] Act[, codified as
amended at 31 U.S.C. § 1321].’’ Chippewa,
69 Fed.Cl. at 653 (citing King, 107 Ct.Cl. at
236, 68 F.Supp. 206). The actual accounts
numbers of 7158, 7043, and 7436 thus fall
within the range reserved for trust funds
only.44
Similarly, according to the Department of
Interior’s guidelines, an IIM account is ‘‘an
interest bearing account for trust funds held
by the Secretary that belong to a person who

has an interest in trust assets.’’ 25 C.F.R.
§ 115.002 (emphasis added). IIM accounts
are ‘‘under the control and management of
the Secretary.’’ Id. As mentioned previously,
there are three types of IIM accounts:
unrestricted, restricted, and estate accounts,
id., but it is not readily apparent which type
of IIM accounts held the funds at issue.
Regardless, under the Department’s own
regulations, IIM accounts are trust fund accounts.
See also American Indians Residing
on Maricopa–Ak Chin Reservation, 667
F.2d at 1002 (‘‘IIM funds are recognized as
trust funds.’’).

[31] The funds derived from the 1886
lands and placed in Proceeds–of–Labor and
IIM accounts thus fall under the heading of
‘‘any other money that the Secretary must
accept into trust.’’ 25 C.F.R. § 115.002.
Nonetheless, the conclusion that the funds
derived from the 1886 lands were held ‘‘in
trust’’ and come within the reach of the
Indian Trust Accounting Statute does not
end the court’s inquiry as to the applicability
of the ITAS. The ITAS requires that plaintiffs’
claims not only concern ‘‘trust funds’’
but also that those claims fit within the scope
of ‘‘losses to or mismanagement of’’ such
trust funds. 117 Stat. at 1263.

The government argues that ‘‘any rights
here

laintiffs assert to the [1886 monies]
TTT on the basis of funds mismanagementstyled
claims should be rejected for the same
reasons th[e] [c]ourt rejected

laintiffs’
breach of contract claim.’’ Def.’s Mot. at 36.
This contention appears to involve two separate
arguments, viz., (1) that the court’s reasoning
expressed in its conclusion that the
Indian Trust Accounting Statute was inapplicable
to plaintiffs’ breach of contract claims
is germane to the present question, and (2)
that the court should dismiss the plaintiffs’
arguments because they are mismanagement-
style claims of the type rejected in
Shoshone, 364 F.3d 1339.

43. The King decision is set out in full only in the
Court of Claims reporter and on Lexis Nexis. A
portion of the decision is also reported at 68
F.Supp. 206, and that portion is available on-line
via Westlaw, but neither the report in the Federal
Supplement nor in Westlaw on-line reproduces
the portion of the King decision quoted and cited
in Chippewa and relevant here

44. King’s recitation of the Treasury accounting
system, which cited to general regulations of the
Comptroller General promulgated in 1928 and
amended in 1936, comports with regulations in
effect during the time period in which the funds
at issue were being deposited into the Treasury.
See General Regulations No. 84–2d Revision, 30
Comp. Gen. 541, 543 (Nov. 20, 1950).

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In Wolfchild I, the court concluded that
the Indian Trust Accounting Statute did not
apply to plaintiffs’ breach of contract claims
because the ITAS only applies to ‘‘trust mismanagement
and to specific kinds of losses[,]’’
not claims based on a breach of contract.
62 Fed.Cl. at 548. That reasoning,
however, is inapposite regarding claims respecting
the funds. Because the funds at
issue were held ‘‘in trust’’ specifically by
statute, the ITAS applies by its express
terms.

The government’s second argument recalls
a contention that it made, and lost, in Shoshone.
In Shoshone, the government argued
that the ITAS would only encompass ‘‘mismanagement
or loss of tribal funds that were
actually collected and deposited into the tribal
trusts by the [g]overnment.’’ 364 F.3d at
1349. The Federal Circuit rejected ‘‘the
[g]overnment’s narrow reading of the
[ITAS]’’ and accepted that some losses to
trust funds could occur prior to collection.
Id. at 1349–50.45

The plaintiffs assert a loss to and mismanagement
of the funds derived from the 1886
lands caused by the government’s disbursal
of such funds to the three communities, and
not to eligible Mdewakanton. See Pls.’ Cross–
Mot. at 47–48. Those funds were in the
government’s possession and deposited into
trust funds by the government. The Federal
Circuit has held that losses to trust funds
within the government’s possession fall under
the ITAS, see Shoshone, 364 F.3d at 1349–50,
and indeed, it is difficult to imagine what
type of claim would fall under ‘‘losses to or
mismanagement of trust funds’’ if the disbursement
of the entire funds at issue to the
wrong beneficiaries is not included.
It is also evident that plaintiffs’ claims
concern trust funds, not, as the government
argues, trust assets. The funds may have
been derived from various leases and licenses
in and for the 1886 lands, but the issue at
hand is the government’s payment of the
funds to the three communities. Plaintiffs’
claims are thus distinguishable from claims
the Federal Circuit and this court have concluded
are not within the reach of ITAS
because they concern trust assets. See, e.g.,
Shoshone, 364 F.3d at 1350 (claim concerned
‘‘mineral trust assets’’); Simmons v. United
States, 71 Fed.Cl. 188, 192–93 (2006) (claim
concerned lumber harvested from plaintiff’s
land).

Accordingly, the court finds that the Indian
Trust Accounting Statute is applicable to
plaintiffs’ claim that the government mismanaged
and caused a loss to the monies derived
from the 1886 lands, such monies being held
in trust for the plaintiffs. The government
does not assert nor is there any evidence
before the court that the plaintiffs have been
provided with an accounting of the funds.
See 117 Stat. at 1263; Shoshone, 364 F.3d at
1347 (‘‘The clear intent of the [ITAS] is that
the statute of limitations will not begin to run
on a tribe’s claims until an accounting is
completed.’’). Consequently, the ITAS resuscitates
and preserves plaintiffs’ claims,
thereby displacing the general six-year statute
of limitations, 28 U.S.C. § 2501.

3. Plaintiff–Intervenors’ motion to
amend.
The Julia DeMarce Group and the Harley
D. Zephier Group of Plaintiff–Intervenors
have filed motions and proposed complaints
containing an additional count, which alleges
that the government violated its obligation to
set aside land under the Act of Feb. 16, 1863
§ 7, 12 Stat. 652, 654. The government opposes
the motion arguing that the Federal
Circuit’s conclusion that the second Act of
1863, 12 Stat. 819, superseded the first Act of
1863 means that plaintiff-intervenors cannot
base a claim on the first Act of 1863. Def.’s
Opp’n at 18. The government also alleges
that this claim would be barred by the statute
of limitations as ‘‘

laintiffs were on
notice of their claim six years before filing
their complaints, even as early as 1888, when
the first of the Appropriations Acts were
passed and the land designated under this

45. In a related view, the Federal Circuit opined
in Shoshone that claims pertaining to losses to
trust assets, rather than trust funds, are outside
the scope of the ITAS. See 364 F.3d at 1350; id.
at 1351 (noting that the Federal Circuit’s interpretation
of ‘‘losses TTT to trust funds’’ limited
that phrase to ‘‘accounts receivable due and owing
to the Tribes’’); see also Rosales v. United
States, 89 Fed.Cl. 565, 580 (2009) (summarizing
Shoshone ).

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96 FEDERAL CLAIMS REPORTER

particular statute was not acquired for the
benefit of the loyal Mdewakanton.’’ Id. at
18–19. Notwithstanding these arguments by
the government, the salient threshold question
realistically is whether the first Act of
1863 can be read as giving rise to a moneymandating
duty under controlling precedent—
a question that neither party has addressed.
The court will grant intervenorplaintiffs’
motion to amend such that this
threshold issue might be addressed.
B. Motion to Dismiss and Competing
Motion for Partial Summary
Judgment
1. Entitlement to the funds obtained
from the 1886 lands prior to the adoption
of the 1980 Act.

[32] The government makes an overarching
argument that the statutory mandates
contained in the Appropriations Acts are essentially
immaterial to plaintiffs’ potential entitlement
to the funds at issue. Specifically,
the government argues that ‘‘the only thing
‘restricted’ by the statutory use restriction
is what the Secretary can do with the money
appropriated—here, money appropriated in
1888, 1889, and 1890[,]’’ and that ‘‘t is
plainly impossible to violate such TTT restriction[
s] once those funds have been expended.’’
Def.’s Reply at 13–14. The court expressed
some skepticism of that argument at
the hearing held on the present motions, see
Hr’g Tr. 30:10–30:19 (Oct. 22, 2010), and will
now address the merits of the government’s
position in full.

[33] ‘‘Every agency decision must be anchored
in the language of one or more statutes
the agency is charged to implement.’’ 1
RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW
TREATISE 155 (5th ed. 2010). This fundamental
precept of administrative law—that an
agency may only act pursuant to and within
the scope of a statutory delegation of authority
granted by Congress—is embodied in the
Administrative Procedure Act and judicial
review of congressional delegations of power
to administrative agencies. See 5 U.S.C.
§ 706(2)(c) (A ‘‘reviewing court shall TTT hold
unlawful and set aside agency action, findings,
and conclusions found to be TTT in
excess of statutory jurisdiction, authority, or
limitations, or short of statutory right.’’); see,

e.g., Federal Commc’n Comm’n v. Fox Television
Stations, Inc., ––– U.S. ––––, ––––,
129 S.Ct. 1800, 1823, 173 L.Ed.2d 738 (2009)
(Kennedy, J., concurring); Whitman v.
American Trucking Ass’ns., 531 U.S. 457,
472–73, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001);
Mistretta v. United States, 488 U.S. 361,
371–73, 109 S.Ct. 647, 102 L.Ed.2d 714
(1989); Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814,
28 L.Ed.2d 136 (1971), overruled on unrelated
grounds by Califano v. Sanders, 430 U.S.
99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

[34] Moreover, ‘‘nder the Appropriations
Clause of the Constitution, funds from
the Treasury cannot be used for purposes
other than those permitted by the appropriating
statute.’’ Marathon Oil Co. v. United
States, 374 F.3d 1123, 1133 (Fed.Cir.2004)
(citing Office of Pers. Mgmt. v. Richmond,
496 U.S. 414, 424, 110 S.Ct. 2465, 110
L.Ed.2d 387 (1990) (‘‘Money may be paid out
[of the Federal Treasury] only through an
appropriation made by law; in other words,
the payment of money from the Treasury
must be authorized by a statute.’’)); see also
Reeside v. Walker, 52 U.S. 272, 291, 11 How.
272, 13 L.Ed. 693 (1850) (‘‘However much
money may be in the Treasury at any one
time, not a dollar of it can be used in the
payment of anything not thus previously
sanctioned.’’). Of course, the funds at issue
were derived from the 1886 lands, which
were properly purchased with appropriated
funds; nonetheless, this basic principle regarding
the expenditure of appropriations reinforces
the conclusion that the Secretary
was required to deal with the monies in a
way that comported with the original appropriating
statute.

The 1974 opinion letter from the Solicitor’s
office at the Department, which ‘‘sets forth
the most definitive statement of the Department’s
position as to the legal status of the
1886 lands[,]’’ Wolfchild VI, 559 F.3d at 1248,
explicitly makes the point that the Department
must comply with the statutory use
restrictions on a continuing basis. See J.A.
00392–97 (Barnes 1974 Mem.). That letter
began by stating the Department’s longstanding
interpretation that the Appropriations
Acts’ benefits, including the 1886 lands

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were to extend only to the loyal Mdewakanton
and their lineal descendants. Id. at
00392. Because the benefits of the Acts
could only be enjoyed by eligible Mdewakanton,
the letter noted the predicament that
unassigned lands might remain ‘‘idle and unproductive
of income which might be used for
the benefit of the Indians,’’ as they could not
be assigned to individuals who did not qualify
as lineal descendants. Id. at 00393. The
letter then analyzed whether the Secretary
might find some source of authority under
which it could lease the lands to non-eligible
individuals. Id. at 00394.

After determining that the 1886 lands
could not be classified as ‘‘tribal lands’’ susceptible
to leasing under 25 U.S.C. § 15, the
letter looked to the Appropriations Acts as a
possible source of the Secretary’s leasing
authority. J.A. 00395. As noted in the recitation
of facts, the letter concluded that
‘‘[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.’’ J.A. 00396. Relying on the
determination that the Appropriations Acts
conferred the powers of a trustee on the
Secretary, the letter concluded that ‘‘the Secretary
in the exercise of powers of an ordinary
trustee, in light of broad discretionary
powers conferred by statute, [and] in these
unique circumstances may grant leasehold
interests in the lands acquired under authority
of the above-listed acts of Congress [the
Appropriations Acts].’’ Id. at 00396 (emphasis
added). The letter then recognized that because
the Secretary was acting pursuant to
authority conferred by the Appropriations
Acts, the funds derived from the 1886 lands
were equally subject to the restrictions contained
in those statutes. It stated: ‘‘Proceeds
from the leases should be kept separate
and may be expended for the benefit of the
class in such manner as the Secretary deems
best consistent with his powers under the
trust.’’ J.A. 00397 (emphasis added).

In the 1978 letter from the Field Solicitor
of the Department to the Area Director of
the BIA, this understanding of the restrictions
on the Secretary’s power to lease the
1886 lands was reiterated. J.A. 00399–401

(Shulstad 1978 Letter). In that letter, the
Field Solicitor repeated the conclusion set
out in the 1974 memorandum that the 1886
lands ‘‘could be leased, under certain specified
circumstances, to non-Indians or to noneligible
Indians, provided that fair rent payments
are made in order to provide income
for the benefit of eligible Mdewakantons.’’
J.A. 00400 (emphasis added); see J.A. 00401
(‘‘The rental would have to be paid to the
Bureau of Indian Affairs for the benefit of
Mdewakanton Sioux.’’).

Thus, when the Secretary leased the 1886
lands to non-eligible individuals and obtained
money as a result, he plainly did so under
authority conferred by the Appropriations
Acts. Because the Secretary acted in these
endeavors pursuant to a congressional delegation
of power granted in the Appropriations
Acts, he was statutorily required to
handle the funds derived from the 1886 lands
in a manner that accorded with the congressional
mandates contained in those Acts—
including the requirements that the benefits
of the Appropriations Acts be distributed to
the loyal Mdewakanton and families thereof
and that such benefits be conferred in as
equal an amount as practicable. See Lincoln
v. Vigil, 508 U.S. 182, 193, 113 S.Ct. 2024, 124
L.Ed.2d 101 (1993) (‘‘Of course, an agency is
not free simply to disregard statutory responsibilities:
Congress may always circumscribe
agency discretion to allocate resources
by putting restrictions in the operative statutes.’’).
The question remains, however,
whether the requirements contained in the
Appropriations Acts may be read as creating
a money-mandating duty such that the Secretary’s
contravention of them may allow a
damages remedy for the lineal descendants
of the loyal Mdewakanton.

(a.) Jurisdiction.
[35] The government challenges the
court’s jurisdiction, arguing that the Appropriations
Acts and subsequent Department
actions do not create the money-mandating
duty that plaintiffs must establish as a basis
for their claims under the Indian Tucker Act,
28 U.S.C. § 1505.46 See Def.’s Mot. at 18–25.

46. As part of its argument that the court lacks
subject matter jurisdiction, the government con-

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Plaintiffs assert that the Appropriations Acts
created a money-mandating duty on the part
of the government for the benefit of the 1886
Mdewakanton and their lineal descendants,
and that the government is liable in damages
for its disbursement of the funds to the three
communities. See Pls.’ Cross–Mot. at 26–29,
33–43.

The Indian Tucker Act was adopted in
1946 to avoid the need for Indians to present
special jurisdictional bills to Congress. See
Mitchell II, 463 U.S. at 214, 103 S.Ct. 2961.
Where the plaintiffs are a ‘‘tribe, band, or
other identifiable group of American Indians
residing within the territorial limits of the
United States or Alaska,’’ the Indian Tucker
Act provides the court with the same juridical
power it would have respecting traditional
Tucker Act claims. 28 U.S.C. § 1505. The
loyal Mdewakanton are an ‘‘identifiable
group of American Indians’’ within the meaning
of the Act, see Wolfchild I, 62 Fed.Cl. at
539–40,47 and their claims are premised on
laws of the United States, namely the Appropriations
Acts. Thus, plaintiffs’ claims fall
within the terms of the Indian Tucker Act.
As explained above, however, the source of
law upon which plaintiffs rely must ‘‘be fairly
interpreted or reasonably amenable to the
interpretation that it mandates a right of
recovery in damages.’’ Adair, 497 F.3d at
1250 (quoting White Mountain Apache, 537
U.S. at 472–73, 123 S.Ct. 1126) (internal quotations
omitted).

[36] ‘‘[W]here the statutory text leaves
the government no discretion over payment
of claimed funds[,]’’ Congress has provided a
money-mandating source for jurisdiction in
this court. Samish, 419 F.3d at 1364; see

Hopi Tribe, 55 Fed.Cl. at 86–87. In this
regard, the Federal Circuit has ‘‘repeatedly
recognized that the use of the word ‘shall’
generally makes a statute money-mandating.’’
Greenlee Cnty., 487 F.3d at 877 (quoting
Agwiak v. United States, 347 F.3d 1375,
1380 (Fed.Cir.2003)). ‘‘But Tucker Act jurisdiction
is not limited to such narrow statutory
entitlements[;] [c]ertain discretionary
schemes also support claims within the Court
of Federal Claims[’] jurisdiction.’’ Samish,
419 F.3d at 1364.

[37, 38] For example, the use of the word
‘‘may’’ in a statute leads to the presumption
that the government has discretion over the
payment of funds and does not owe a moneymandating
duty to a plaintiff. See Doe v.
United States, 463 F.3d 1314, 1324 (Fed.Cir.
2006). Yet, ‘‘this presumption of discretion
may be rebutted by ‘the intent of Congress
and other inferences that [the court] may
rationally draw from the structure and purpose
of the statute at hand.’ ’’ Id. (quoting
McBryde v. United States, 299 F.3d 1357,
1362 (Fed.Cir.2002)); see, e.g., Doe v. United
States, 100 F.3d 1576, 1579–82 (Fed.Cir.1996)
(concluding that moiety statute, 19 U.S.C.
§ 1619(a), which provided that the Secretary
of Treasury ‘‘may award and pay’’ to an
informant a reward, was money-mandating in
light of legislative history and prior interpretation
of statute). Thus, ‘‘a statute is not
wholly discretionary, even if it uses the word
‘may’ when an analysis of congressional intent
or the structure and purpose of the
statute reveal one of the following: (1) the
statute has ‘clear standards for paying’ money
to recipients, (2) the statute specifies ‘precise
amounts’ to be paid, or (3) the statute

tends also that any claim plaintiffs may have in
the funds derived from the 1886 lands was extinguished
by the 1980 Act and that such a claim
would be barred by the statute of limitations as
well. Def.’s Mot. at 25–26; 30–35. In granting
plaintiffs’ motion to amend, the court concluded
that the 1980 Act does not affect a wholesale
termination of plaintiffs’ interest in the funds and
the statute of limitations has been tolled. See
supra, at 327–31. The court’s conclusion as to
these issues in its motion-to-amend analysis dispenses
with these same arguments as presented
in the government’s motion to dismiss. But see
infra, at 345–46 (reaching the opposite conclusion
respecting funds derived from the Wabasha
Land Transfer). Accordingly, the court rejects

the government’s arguments on these points and
will not repeat its reasoning here.
47. In Wolfchild I, the government argued that
lineal descendants of the loyal Mdewakanton do
not have a right to sue under the Indian Tucker
Act because they are not a tribe or otherwise
identifiable group. See 62 Fed.Cl. at 539. The
court rejected this argument, noting that the
1886 census and the Department’s own dealings
with the lineal descendants demonstrated that
the plaintiffs are an identifiable group. See id.
The government does not resuscitate this objection
to plaintiffs’ claim in the motions currently
before the court.

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compels payment once certain conditions
precedent are met.’’ Doe, 463 F.3d at 1324
(citing Samish, 419 F.3d at 1364–65); see
also District of Columbia v. United States,
67 Fed.Cl. 292, 305 (2005) (‘‘Even statutory
language such as ‘may award and pay’ has
been found to be money-mandating, when the
legislative intent and context of the statute
indicate that the applicant is entitled to payment
from the United States if certain conditions
have been met.’’ (citing Doe, 100 F.3d
at 1580–82)).

To determine whether the Appropriations
Acts created a mandatory form of benefits
for plaintiffs, the court must first look to the
text of the Acts. See Samish, 419 F.3d at
1365 (‘‘The objective in interpreting
is to give effect to congressional intent.
To determine [c]ongressional intent the court
begins with the language of the statutes at
issue.’’ (citations omitted)). All of the Appropriations
Acts provided that the money appropriated
was ‘‘to be expended by the Secretary
of the Interior.’’ 25 Stat. at 229; 25
Stat. at 992; 26 Stat. at 349. In this respect,
Congress used the word ‘‘shall.’’ For example,
the 1889 Act provided that the unspent
funds ‘‘shall TTT be used and expended for
the purposes for which the same amount was
appropriated and for the benefit of the
above-named Indians.’’ 25 Stat. at 992 (emphasis
added). The 1889 and 1890 Acts provided
‘‘all of said money TTT shall be so
expended that each of the [loyal Mdewakanton]
TTT shall receive[ ]’’ an equal amount as
practicable, and the 1889 Act made that provision
applicable to the 1888 Act. 25 Stat. at
992–93; 26 Stat. at 349 (emphasis added).
Both Acts also stated that, as far as practicable,
lands for the loyal Mdewakanton ‘‘shall
be purchased in such locality as each Indian
desires.’’ 25 Stat. at 993; 26 Stat. at 349
(emphasis added). The 1890 Act additionally
provided that a certain sum of the money
‘‘shall be expended for the Prairie Island
settlement.’’ 26 Stat. at 349 (emphasis added).

The language of the Appropriations Acts
exceeds the wholly discretionary language
that may render a statute merely ‘‘moneyauthorizing,’’
not ‘‘money-mandating.’’ See,
e.g., Perri v. United States, 340 F.3d 1337,

1341 (Fed.Cir.2003) (Section 524 of Title 28 is
a ‘‘money-authorizing statute, not a moneymandating
one’’ where the statute merely
established the Department of Justice Assets
Forfeiture Fund and dictated that funds for
the payment of certain awards ‘‘shall be
available to the Attorney General.’’); Hopi
Tribe, 55 Fed.Cl. at 87–92 (concluding that a
statutory provision was not money-mandating
where the pertinent provision stated
‘‘[t]he Secretary of Interior was authorized’’
to pay the legal fees of certain tribes). Consistent
use of the word ‘‘shall’’ throughout
the statute favors the finding that the Appropriations
Acts are money-mandating. See,
e.g., Doe, 463 F.3d at 1325; Greenlee Cnty.,
487 F.3d at 877; Agwiak, 347 F.3d at 1380.

The pertinent historical antecedents to the
Appropriations Acts also have an important
bearing on whether they are money mandating.
See Samish, 419 F.3d at 1365 (‘‘To fully
understand the meaning of a statute TTT the
court looks ‘not only to the particular statutory
language, but to the design of the statute
as a whole and to its object and policy.’ ’’
(quoting Crandon v. United States, 494 U.S.
152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132
(1990))). Notably, the Supreme Court’s analytical
position in Quick Bear, 210 U.S. 50, 28
S.Ct. 690, serves as an appropriate guide in
this respect. In Quick Bear, the Supreme
Court emphasized that when facing questions
regarding appropriations to Indians, the inquiry
is largely an historical one. The Supreme
Court addressed in Quick Bear the
question of whether funds appropriated to
fulfill treaty obligations and income on Indian
trust funds could be expended for the support
of sectarian schools on an Indian reservation
in the face of a statute disallowing
Congress from appropriating funds for education
in sectarian schools. Id. at 50–53, 28
S.Ct. 690. The Court distinguished between
gratuitous appropriations ‘‘relate[d] to public
moneys belonging to the government’’ and
‘‘moneys which belong to the Indians and
which is administered for them by the government.’’


Id. at 66, 28 S.Ct. 690. Noting
that these two classes of appropriations are
‘‘essentially different in character[,]’’ the
Court stated that money appropriated pursuant
to a treaty and listed under the heading
of ‘‘Fulfilling Treaty Stipulations with, and

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Support of, Indian Tribes’’ ‘‘is not public
money in this sense [but rather] t is the
Indians’ money, or, at least, is dealt with by
the government as if it belonged to them, as
morally it does.’’ Id. at 80, 28 S.Ct. 690.
Similarly, ‘‘trust fund[s,] [which] ha[ve] been
set aside for the Indians TTT and require[ ]
no annual appropriation[,] [are] distributed in
accordance with the discretion of the Secretary
of the Interior, but really belong to the
Indians.’’ Id. at 80–81, 28 S.Ct. 690. Both
types of funds, the Court concluded, are
‘‘moneys belonging really to the Indians [constituting]
TTT the price of land ceded by the
Indians to the government.’’ Id. at 81, 28
S.Ct. 690. Thus, they are ‘‘not gratuitous
appropriations of public moneys, but the payment
TTT of a treaty debt in instal[l]ments.’’
Id.48
In this case, the historical antecedents to
the Appropriations Acts are similarly informative
to understanding the language used
in the Acts.

(b.) Purpose of the Appropriations Acts.
To recapitulate the more detailed recitations
in the statement of facts, the loyal
Mdewakanton did not breach the 1851 and
1858 treaties that bound the Sioux to maintain
peaceful relations with the settlers. A
breach by other Sioux of those treaties
served as the fundamental predicate for Congress’
voiding of the United States’ treaties
with the Sioux and terminating all annuities
to them. Congress did not except the loyal
Mdewakanton from those measures, but, instead,
afforded a different set of rights to the
loyal Mdewakanton in the two 1863 Acts and
subsequently, in the Appropriations Acts. In
every practical sense then, the appropriated
funds constituted replacements for the annuities
and other benefits the loyal MdewakanMdewakanton
had received under prior treaties in exchange
for their concession of land. See
Quick Bear, 210 U.S. at 80–81, 28 S.Ct. 690
(distinguishing ‘‘gratuitous appropriations of
public moneys’’ from ‘‘the payment TTT of a
treaty debt in installments [which are the]
price of land ceded by the Indians to the
government’’).

This interpretation is bolstered by the fact
that all three of the Appropriations Acts
were placed under the heading of ‘‘Fulfilling
Treaty Stipulations with and Support of Indian
Tribes,’’ rather than the more general
‘‘Miscellaneous’’ or ‘‘Miscellaneous Supports’’
heading. See 25 Stat. at 219; 25 Stat. at 982;
26 Stat. at 338; see also Quick Bear, 210
U.S. at 80, 28 S.Ct. 690 (noting that the funds
the Court classified as the ‘‘Indians’ money’’
and not ‘‘gratuitous appropriations’’ were listed
under the heading of ‘‘Fulfilling Treaty
Stipulations with, and Support of, Indian
Tribes’’). While the placement of the funds
under that heading ‘‘does not support the
contention that the Appropriations Acts constituted
a conveyance of trust property.’’
Wolfchild VI, 559 F.3d at 1240, it supports
the fact that Congress regarded the Appropriations
Acts as substitute payments for the
annuities that would have been received under
the Sioux treaties.

The legislative history of the Appropriations
Acts also reveals that the Acts were
viewed as a substitution for the treaty benefits
of which the loyal Mdewakanton had
been deprived. Senator MacDonald, the
sponsor of the 1888 Appropriation, described
his purpose in proposing the Act:
few of TTT [the Sioux] remained friendly
to the whites and became their trusted
allies and defenders, and TTT a number of
them did valuable service in protecting our
people and their property, and in saving

48. Quick Bear’s distinction between ‘‘gratuitous
appropriations’’ and money more properly characterized
as ‘‘belong[ing] to’’ the Indians has
continued to serve as a reference point for courts
facing similar questions of the government’s obligations
in relation to Indian monies. See, e.g.,
Lincoln, 508 U.S. at 194–95, 113 S.Ct. 2024
(citing Quick Bear as ‘‘distinguishing between
money appropriated to fulfill treaty obligations,
to which trust relationship attaches, and ‘gratuitous
appropriations’ ’’); Sac and Fox Tribe of
Indians of Okla. v. Apex Const. Co., 757 F.2d 221,

222–23 (10th Cir.1985) (noting in Quick Bear
that ‘‘[t]he Supreme Court recognized the distinction
between tribal funds and public monies’’);
Scholder v. United States, 428 F.2d 1123,
1129 (9th Cir.1970) (relying on Quick Bear’s distinction
between ‘‘gratuitous appropriations’’
and ‘‘treaty or tribal funds’’); Samish Indian
Nation v. United States, 90 Fed.Cl. 122, 148
(2009) (citing Quick Bear as making a distinction
between ‘‘gratuitous appropriations’’ and ‘‘moneys
which belong to the Indians and which is
administered for them by the government’’).

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many livesTTTT They have ever since had
claims upon not only our gratitude but that
of the nation at large, which ought long
ago to have been recognized and partially,
at least, compensated for their invaluable
services TTT I am almost ashamed to say
it, but the fact is that no exception [to the
Act of Feb. 16, 1863] was made, even in
favor of these friendly Indians.
19 CONG. REC. 2,976–77 (1888). In the course
of passing the 1890 Act, Senator Davis similarly
stated:
When the [1868] treaty was made it was
made with the Indian nation that was at
war with the United States, and not with
[the loyal Mdewakanton] TTT and by reason
of which severance all rights had fallen,
so that they had no rights and interests
in this country, and they were confiscated
in common with all the annuities of the
hostiles, and that worked a great injustice
for which they have never been repaid.
21 CONG. REC. 7,589 (1890).49

Additionally, the Department’s own implementation
of the Acts and its treatment of
the funds at issue is persuasive in ascertaining
the purpose of the Appropriations Acts.
See Mead, 533 U.S. at 227, 121 S.Ct. 2164
(‘‘[T]he well-reasoned views of the agencies
implementing a statute constitute a body of
experience and informed judgment to which
courts and litigants may properly resort for
guidance.’’ (quoting Bragdon v. Abbott, 524
U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d
540 (1998) (internal quotations omitted))).
With the exception of its unsupported decision
to disburse the funds pursuant to the
1980 Act, see J.A. 00878–80 (Nitzschke 1981
Letter), time and again the Department reiterated
its opinion that the appropriated

funds, land, and leasing funds at issue were
being held for the benefit of eligible Mdewakanton
only. See, e.g., J.A. 00397 (Barnes
1974 Mem.) (‘‘Proceeds from the leases
should be kept separate and may be expended
for the benefit of the class.’’); J.A. 02548
(Area Director’s 1975 Mem.) (concluding that
the funds derived from the 1886 lands could
not be distributed to the three communities
because ‘‘the funds appropriated are to be
used only for the benefit of a certain class of
people identified by special census of that
time [the 1886 Mdewakanton].’’); J.A. 01115–
16 (Area Director’s 1976 Mem.) (reiterating
that only lineal descendants of loyal Mdewakanton
were entitled to the funds derived from
the 1886 lands); J.A. 00400 (Shulstad 1978
Letter) (‘‘[F]air rent payments [must be]
made in order to provide income for the
benefit of eligible Mdewakantons.’’). These
recitations were found in reasoned opinions
that demonstrate the type of careful deliberation
that can guide the court in determining
the persuasive weight that should be accorded
to agency interpretations of statutes. See
Cathedral Candle Co., 400 F.3d at 1366.

In sum, Congress’ purpose in passing the
Appropriations Acts reveals that the provisions
in the Acts are not merely ‘‘moneyauthorizing’’
legislation, as the government
argues. Rather, Congress intended the Appropriations
Acts to serve as substitutes for
the obligations the government took upon
itself in its prior treaties with the Sioux in
consideration of the conveyance of Sioux
rights to land and resources. Congress likewise
intended that the restrictions in Acts,
including the provision that the funds be
expended only for the benefit of the loyal
Mdewakanton, serve as binding obligations

49. In debating the terms of the 1890 Act, Senator
Davis summarized the circumstances that generated
the Appropriations Acts:
Now, in regard to the act of February, 1863,
what was it? The whole frontier of Minnesota
had been swept with fire and massacre. The
situation in that part of the country was not
then fully understood and it was not known
here to its full extent, nor was the extent of the
service which these people had performed toward
the Government fully known TTT [W]hen
the law of 1863 was passed Congress did not
stop to consider what the relations of this
fragment of the band of Medawakantons had
been to the white people; and accordingly,
without discrimination, without any saving of
rights, Congress annulled all the rights of all
the Medawakantons to their share of annuity
moneys. There was an instance where, if the
relations of those people had been adequately
known at that time, those rights would have
been preserved. That they were not preserved
is due partly to the effect of insufficient knowledge
on the subject, but more largely to the
fact that there was a spirit abroad then which
demanded confiscation and annulment of all
Indian rights of property.
21 CONG. REC. 7,590–91.

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on the part of the Secretary.50 For ninety
years, the Department recognized this obligation
and treated the funds as belonging to
eligible Mdewakanton, including the lineal
descendants, by collecting income from rents
and licenses from non-eligible lessees and
licensees of the 1886 lands and holding such
monies separately in trust accounts for the
benefit of the Mdewakanton. The Department’s
administration of the monies obtained
from the 1886 lands distinguishes them from
‘‘gratuitous appropriations,’’ and aligns the
monies with funds ‘‘which belong to the Indians
and which [are] administered for them
by the government.’’ Quick Bear, 210 U.S.
at 77, 28 S.Ct. 690 (emphasis added). In
sum, the factual record illustrates that the
funds at issue were ‘‘dealt with by the government
as if it belonged to’’ the loyal Mdewakanton,
‘‘as morally it does.’’ Id. at 80, 28
S.Ct. 690.

(c.) Structure of the Appropriations Acts.
Despite the differences between the three
statutes, collectively the Appropriation Acts
essentially contained five defining elements.
First, each of the Acts stated that the appropriated
funds were ‘‘to be expended’’ by
the Secretary, and, at all other points, the
Acts provided that the Secretary ‘‘shall’’ expend
the funds according to the various restrictions
set out in them. Although this
language did not definitively render the Appropriations
Acts money-mandating, the
obligatory language used throughout the
Acts favors finding that a money-mandating
duty was created as a result of the Acts.
Second, the Appropriations Acts also all
included the mandate that the money be
spent for the benefit of a particular and
identifiable class of beneficiaries—the loyal
Mdewakanton. See 25 Stat. at 228–29; 25
Stat. at 992–93; 26 Stat. at 349; Wolfchild
VI, 559 F.3d at 1243 (In granting land as
assignments
to the loyal Mdewakanton and
their lineal descendants, ‘‘the Secretary
held the property for the use and benefit of
individuals selected from a defined class.’’)
(emphasis added). As the Federal Circuit
recognized, ‘‘Congress intended the 1886
Mdewakantons to be the specific beneficiaries
of the Appropriations Acts.’’ Wolfchild
VI, 559 F.3d at 1243; id. (‘‘The Secretary
of the Interior considered himself bound by
the terms of the statutes to reserve the
usage of the 1886 lands for members of the
particular beneficiary class (the 264 individuals
determined by a contemporaneous Interior
Department census to constitute the
1886 Mdewakantons).’’). Because the Acts
were intended to compensate the loyal
Mdewakanton for the deprivation of their
annuities and land under the first 1863 Act,
they fit within the general characterization
of money-mandating statutes as those that
seek to ‘‘compensate a particular class of
persons for past injuries or labors.’’ Bowen
v. Massachusetts, 487 U.S. 879, 907 n. 42,
108 S.Ct. 2722, 101 L.Ed.2d 749 (1988); see
also Black v. United States, 56 Fed.Cl. 19,
22 (2003) (For a statute to be money-mandating,
it must ‘‘compensate a particular
class of persons for past injuries or labors.’’);
Kennedy Heights Apartments, Ltd.
I v. United States, 48 Fed.Cl. 574, 579
(2001) (‘‘In order to be found money-mandating,
a statute must ‘compensate a particular
class of persons for past injuries or
labors.’ ’’ (quoting Bowen, 487 U.S. at 907
n. 42, 108 S.Ct. 2722)).

Third, the Appropriations Acts also included
detailed directions requiring the Secretary
to put the funds to particular uses,
including purchases of agricultural stock and
equipment and land. See 25 Stat. at 228–29;
25 Stat. at 992–93; 26 Stat. at 349. Fourth,
the Acts required that the Secretary expend
the money in a way that ensured each loyal

50. As noted, Congress was aware at the time of
the passage of the Acts that the Sioux had entered
new treaties with the government under
which they were provided with land and annuities,
while the loyal Mdewakanton, who had severed
tribal relations, were left destitute. See
supra at 340–41 & n. 49 (quoting statements of
Sen. Davis). The Appropriations Acts sought to
compensate the latter group. Allowing the Secretary
to distribute the funds to the three communities
in lieu of the lineal descendants of the
loyal Mdewakanton would defeat Congress’ intent
to provide for the loyal Mdewakanton and
their families, who suffered precisely because
they lacked tribal relations. See Hopi Tribe, 55
Fed.Cl. at 91 (considering whether interpreting
the Navajo–Hopi Settlement Act of 1974 as failing
to give rise to a money-mandating duty

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Mdewakanton would receive as close to an
equal amount as practicable. Id. Fifth, the
Acts contained no time restrictions on the
expenditure of the funds, and, in fact, the
1888 and 1889 Acts were both subject to the
provision that any money appropriated not
expended within the applicable fiscal year
would be carried over to the following years
and expended for the benefit of the loyal
Mdewakanton. Id. These requirements that
the funds be expended for particular uses
and for a narrowly defined class of beneficiaries
distinguish the Acts from lump-sum appropriations,
the expenditure of which is
committed to agency discretion. See Samish,
419 F.3d at 1366 (noting that the Supreme
Court, in Lincoln, 508 U.S. 182, 113
S.Ct. 2024, determined that ‘‘the Snyder Act[,
25 U.S.C. §§ 2, 13,] does not provide a damage
remedy because it does not require the
expenditure of general appropriations, on
specific programs, for particular classes of
Native Americans’’); Samish, 90 Fed.Cl. at
139–40, 146–47 (concluding that various annual
lump-sum appropriations to the Department
of Interior that did not specify to whom
or for what specific purposes the funds
should be paid were not money-mandating).

(d.) The lineal descendants’ entitlement.
[39] Nonetheless, under the government’s
view, whatever restrictions are contained
in the Appropriations Acts cannot be
read to benefit the lineal descendants of the
loyal Mdewakanton. See Def.’s Opp’n at 12–
13. This is so, the government argues, because
‘‘Congress did not include lineal descendants
as a beneficiary of the acts and its
use of the word ‘family’ did not create any
vested ownership rights in the purchased
land.’’ Id. at 12 (citing Wolfchild VI, 559
F.3d at 1242). In regards to the inclusion of
the loyal Mdewakantons’ ‘‘family’’ or ‘‘families’’
as beneficiaries under the Appropriations
Acts, the Federal Circuit concluded
that ‘‘the references to the Mdewakantons’
families was not directed at creating rights of

inheritance in the properties purchased, but
instead was simply part of the directive to
the Secretary as to the scope of his discretion
in spending the appropriated funds.’’
Wolfchild VI, 559 F.3d at 1242. While the
language ‘‘makes clear that the authorization
for expenditures extended to cover the needs
of the families of the beneficiaries, not simply
the needs of the beneficiaries themselves, t
does not speak to the nature of the interest
created in any real property purchased with
the funds.’’ Id. Contrary to the government’s
argument, the Federal Circuit’s conclusion
that the lineal descendants did not
obtain an inheritable property interest in the
1886 lands does not answer the question of
whether the Secretary violated a moneymandating
duty by distributing the funds
derived from those lands to groups of individuals
not intended to qualify as beneficiaries
of the Appropriations Acts to the prejudice of
the individuals who would have qualified as
beneficiaries.

The Appropriations Acts authorized the
Secretary to expend the funds for the benefit
of two classes of individuals: the loyal Mdewakanton
and families of the loyal Mdewakanton.
See 25 Stat. at 992–93; 26 Stat. at
349.51 Contemporaneous sources demonstrate
that at the time the Appropriations
Acts were passed, the term ‘‘family’’ was
understood to have both narrow and broad
meanings. In the narrowest sense, a ‘‘family’’
was understood to include ‘‘a father,
mother, and children.’’ BLACK’S LAW DICTIONARY
477 (1891) (‘‘BLACK’S’’); BOUVIER, A LAW
DICTIONARY 645 (15th ed. 1883) (‘‘BOUVIER’’)
(‘‘Family’’ encompasses ‘‘[f]ather, mother,
and children.’’). ‘‘Family’’ was also understood
to include ‘‘all the relations who descend
from a common ancestor, or who
spring from a common root.’’ BLACK’S 477;
see also BOUVIER 645 (‘‘Family’’ means ‘‘ll
the relations who descend from a common
ancestor or who spring from a common
root.’’); 5 OXFORD ENGLISH DICTIONARY 707
(2d. ed. 1989) (citing contemporaneous exam

would ‘interfere with or defeat congressional

51. The 1888 Appropriation did not include the
provision that the funds were to be expended for
the families of the loyal Mdewakanton. See 25
Stat. at 228–29. Because the appropriated funds
were ultimately utilized in the same assignment
system and the Department did not distinguish
between the 1888 Appropriation and the subsequent
Acts in its legal opinions or in its administration
of the funds, the court will not treat the
funds traceable to the 1888 Appropriation differently.

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ples of usage and defining ‘‘family’’ as including
‘‘[t]hose descended or claiming descent
from a common ancestor: a house, kindred,
lineage’’ and ‘‘a people or group of peoples
assumed to be descended from a common
stock’’). The legislative history does not reveal
whether Congress contemplated the narrow
or broad understanding of ‘‘family’’ when
it passed the Appropriations Acts. Interpretive
guidance, however, can be derived from
the Federal Circuit’s opinion and from the
Department’s interpretations of the Acts.
In describing the Secretary’s decision to
assign lands to lineal descendants of the loyal
Mdewakanton, the Federal Circuit stated:
The Interior Department recognized, of
course, that Congress intended the 1886
Mdewakantons to be the specific beneficiaries
of the Appropriations Acts. The Secretary
of the Interior accordingly sought to
ensure that the funds appropriated under
the Act would be spent for those individuals.
With respect to funds that were used
to purchase land (as opposed to personal
property that was rapidly consumed), the
Secretary adopted a policy designed to
promote Congress’s intent by assigning the
land to individuals from within the group
of 1886 Mdewakantons and subsequently
to individuals from within the class of the
descendants of those Mdewakantons.

559 F.3d at 1243 (emphasis added). Thus,
under the Federal Circuit’s interpretation of
the Appropriations Acts, the Secretary was
‘‘promot[ing] Congress’s intent by assigning
the land to’’ lineal descendants of the loyal
Mdewakanton. Id.
The Department’s consistent practice over
a ninety-year period of granting land assignments
to lineal descendants and numerous
internal memoranda of the Department reinforce
this view. A 1933 memorandum from
the Assistant Solicitor made the point when
it stated: ‘‘Under present law, the land which
is the basis of these communities was land
purchased for the Mdewakanton Sioux residing
in Minnesota on May 20, 1886 and their
descendants. It has been and can be assigned
only to such persons.’’ J.A. 00587–88.
(Mem. from Charlotte T. Westwood to Joe
Jennings, Indian Reorganization (Undated,
written sometime after Nov. 27, 1933)) (emphasis

added). A 1950 memorandum prepared
by the Area Land Officer for the Department
once again stated the Department’s
interpretation of the lineal descendants’ entitlement
to the 1886 lands. See J.A. 00373–74
(Mem. by Rex. H. Barnes (July 24, 1950))
(‘‘Barnes 1950 Mem.’’). That opinion stated
that:
In view of the provisions of the [Appropriations]
Acts TTT [the 1886 lands] may be
assigned only to members of the Mdewakanton
Band of Sioux Indians residing in
Minnesota, and such assignee must have
been a resident of Minnesota on May 20,
1886, or be a legal descen[d]ant of such
resident Indian.

J.A. 00374. In a 1969 memorandum from the
Area Director of the BIA in Minneapolis to
the Field Solicitor, the 1950 memorandum’s
interpretation of the Appropriations Acts was
researched and endorsed once more. J.A.
00382 (Mem. from Daniel S. Boos (Mar. 17,
1969)) (‘‘Based on independent research I
have concluded that these remarks [the
statements in the Barnes 1950 memorandum
regarding the lineal descendants’ entitlement]
are correct.’’).
A 1970 memorandum from the Assistant
Solicitor for Indian Legal Activities reiterated
the Department’s interpretation of the
Appropriations Acts. J.A. 00386–87 (Mem.
from Charles M. Soller to the Field Solicitor,
Minneapolis, Minn. (Dec. 4, 1970)) (‘‘Soller
1970 Mem.’’). That memorandum stressed:
[T]he land in question remains available
only for the use of qualified Mdewakanton
Sioux Indians. If it appears desirable to
use the land by assigning it to or for the
benefit or other Indians, we suggest that
Congress should be asked to permit such
action by affirmative legislation. We know
of no means of accomplishing this by administrative
action, particularly over any
objections of eligible Mdewakanton Sioux
Indians.
J.A. 00386.

A 1971 memorandum from the Acting Associate
Solicitor of Indian Affairs restated
the Department’s interpretation that the Appropriations
Acts entitled lineal descendants
of the loyal Mdewakanton to its benefits.

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J.A. 00344–49 (Mem. from William A. Gersbury
to the Field Solicitor for the Department,
Twin Cities, Minn. (Aug. 19, 1971))
(‘‘Gersbury 1971 Mem.’’). In response to the
Field Solicitor’s inquiry as to the Shakopee
Mdewakanton Sioux Community’s potential
entitlement to the 1886 lands, the opinion
cited the text of the Appropriations Acts that
stated that the appropriated funds were for
the benefit of the loyal Mdewakanton. J.A.
00344. It followed the citation by stating
that ‘‘only descendants of Mdewakantons
who resided in Minnesota on May, 20, 1886,
are eligible for land assignments at Shakopee.’’
Id. (emphasis added). Later, the
memorandum reiterated that, as of 1971, lineal
descendants were the only group entitled
to the 1886 lands:

ny assignee who cannot meet the basic
requirement for issuance of an assignment
(that he is a legal descendant of a Mdewakanton
Sioux resident of Minnesota on
May 20, 1886) has no right to continued
possession of the property, even if, the
assignment was presumably valid when issued.
The wording in the aforementioned
Acts of Congress [the Appropriations Acts]
compels us to this conclusion.

J.A. 00347 (emphasis added) (internal parenthetical
included in original). The letter ended
by repeating the conclusion in the Soller
1970 memorandum that congressional action
would be required to allow anyone other than
lineal descendants of the loyal Mdewakanton
to benefit from the land. J.A. 00348–49.
The lineal descendants’ entitlement to the
benefits of the Appropriations Acts was stated
once again in a 1978 letter from the Field
Solicitor to the Area Director of the BIA.
J.A. 00399–00401 (Shulstad 1978 Letter).
That letter noted that ‘‘[t]he land is held for
the benefit of a specific class of people and
their descendants.’’ J.A. 00400.

[40] The above memoranda, particularly
the detailed analysis contained in the Gersbury
1971 memorandum, manifestly demonstrates
that the Department did not view its
assignment of lands to the lineal descendants
as a matter of administrative grace; rather,
it considered itself ‘‘compel[led]’’ by the
terms of the Appropriations Acts to do so.
J.A. 00347 (Gersbury 1971 Mem.). In light
of the Department’s decades-long interpretation
that the Acts’ benefits, including the
leasing funds, extended to lineal descendants
and only lineal descendants of the loyal Mdewakanton,
the government’s argument that
‘‘the Appropriations Acts cannot be interpreted
as creating any duties as to the descendants
of the loyal Mdewakanton’’ carries
little or no persuasive weight. Although the
Appropriations Acts do not specify how
broadly ‘‘family’’ was to be interpreted, in
light of the aforementioned facts, the court is
persuaded that inclusion of the term ‘‘family’’
and ‘‘families’’ encompassed ‘‘lineal descendants’’
of the loyal Mdewakanton, such that
plaintiffs may base their claims on the statutory
use restrictions contained in the Appropriations
Acts.52

(e.) The Secretary’s discretion.

The government also argues that ‘‘nsofar
Congress has left to the Secretary’s sole
judgment the determination of the manner
for providing assistance to the loyal Mdewakanton,
the Secretary’s distribution [of funds
from the Treasury accounts] was permissible
and the [c]ourt lacks jurisdiction to otherwise
review his decision.’’ Def.’s Mot. at 29 (citing
Milk Train, Inc. v. Veneman, 310 F.3d
747 (D.C.Cir.2002)). For this proposition,
the government relies on the fact that the
Acts granted the Secretary the discretion to
implement the Acts’ mandates ‘‘in such manner
as in his judgment he may deem best.’’

52. The court’s conclusion is bolstered by the
long-standing canon of statutory interpretation
that ‘‘statutes are to be construed liberally in
favor of the Indians, with ambiguous provisions
interpreted to their benefit.’’ Montana v. Blackfeet
Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct.
2399, 85 L.Ed.2d 753 (1985); see Bryan v. Itasca
Cnty., Minn., 426 U.S. 373, 392, 96 S.Ct. 2102,
48 L.Ed.2d 710 (1976) (‘‘n construing TTT admittedly
ambiguous statute TTT [the court]
must be guided by that eminently sound and vital
canon TTT that statutes passed for the benefit of
dependent Indian tribes TTT are to be liberally
construed, doubtful expressions being resolved in
favor of the Indians.’’) (internal quotations and
citations omitted); Shoshone, 364 F.3d at 1352
(noting that the principle articulated in Blackfeet
supported the court’s interpretation that the government
was obligated under 25 U.S.C. § 612 to
credit prejudgment interest to plaintiffs); Doyon,
Ltd. v. United States, 214 F.3d 1309, 1314 (Fed.
Cir.2000) (noting the Blackfeet principle).

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Id. Besides this general argument, the government
particularly avers that ‘‘[t]o the extent
the funds in the account were traceable
to the Wabasha land transfer[,] the Secretary’s
distribution was permissible because
such distribution was left to his discretion
and

laintiffs have no vested or beneficial
interest in the funds.’’ Id. The court will
first address the government’s specific argument
regarding the Wabasha–Land–Transfer
funds.
[41] The 1944 Act authorizing the transfer
of the 1886 Wabasha lands to the Upper
Mississippi River Wild Life and Fish Refuge
provided that:

The sum of $1,261.20 TTT is hereby made
available for transfer on the books of the
Treasury TTT to the credit of the Medawakanton
and Wahpakoota Bands of Sioux
TTT and shall be subject to disbursement
under the direction of the Secretary of the
Interior for the benefit of the Medawakanton
and Wahpakoota Bands of Sioux Indians.
Where groups of such Indians are
organized as tribes under the [Reorganization
Act], the Secretary of the Interior
may set apart and disburse for their benefit
and upon their request a proportionate
part of said sum, based on the number of
Indians so organized.
1944 Act, § 2, 58 Stat. 274. Subsequently,
$1,261.20 was transferred to Treasury account
147436 ‘‘Proceeds of Labor, the Mdewakanton
and Wahpakoota Bands of Sioux
Indians.’’ Def.’s Mot. at 8. That money was
later distributed to the three communities
when the Department disbursed the entirety
of the funds derived from the 1886 lands.
Id. at 10–11.

Under the terms of the 1944 Act, payment
was made not to the loyal Mdewakanton or
their descendants, see Wolfchild VI, 559 F.3d
at 1251; rather, the funds were allocated to
be paid for the benefit of the Mdewakanton
and Wahpakoota Bands generally. Plaintiffs’
entitlement to the funds derived from the
1886 lands in Wabasha, which would have
been based on the restrictions contained in
the Appropriations Acts, was consequently
terminated upon passage of the 1944 Act. See
id., 559 F.3d at 1257–58 (noting that Congress
had the power to change the identity of
the class of individuals entitled to the 1886
lands). Additionally, when the Secretary distributed
the Wabasha–Land–Transfer funds
to the three communities, he acted pursuant
to authority derived from the 1944 Act, which
explicitly allowed him to disburse the funds
to tribes organized under the Reorganization
Act. See 1944 Act, § 2, 58 Stat. 274.
Accordingly, although the rest of the funds
at issue remained controlled by the terms of
the Appropriations Acts and unaffected by
the 1980 Act, the 1944 Act provided that the
Wabasha–Land–Transfer funds be paid to a
broader set of beneficiaries and conferred
upon the Secretary supplemental authority to
distribute those funds, thus freeing the disbursement
of the Wabasha funds from the
statutory restrictions of the Appropriations
Acts. Consequently, the government’s motion
to dismiss as to these specific funds is granted.

[42] Respecting the Secretary’s discretion
as to the remaining pre–1980 funds, the
Appropriations Acts provided that the Secretary
could use his ‘‘judgment’’ in administering
the benefits of the Appropriations Acts.
See 25 Stat. at 228–29 (‘‘For the support of
[eligible Mdewakanton] TTT twenty thousand
dollars, to be expended by the Secretary of
the Interior in the purchase, in such manner
as in his judgment he may deem best, of
agricultural implements, cattle, horses and
lands’’); 25 Stat. at 992–93 (‘‘For the support
of [eligible Mdewakanton] TTT 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 [eligible Mdewakanton] or family
thereof.’’); 26 Stat. at 349 (‘‘For the support
of [eligible Mdewakanton] TTT eight thousand
dollars, to be expended by the Secretary of
the Interior, as in his judgment he may think
best, for such lands, agricultural implements,
buildings, seeds, cattle, horses, food, or clothing
as may be deemed best in the case of
each [eligible Mdewakanton] or families
thereof.’’).

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The clause granting discretion to the Secretary
did not modify or abrogate the Appropriations
Acts’ other restrictions but rather
simply allowed the Secretary to determine in
what precise manner to implement the acts.
That grant of restricted discretion can hardly
be read to have provided the Secretary with
the authority to override the specific mandates
contained in the Acts. As the Federal
Circuit noted, ‘‘[t]he language of the Appropriations
Acts TTT makes clear that the references
to the Mdewakantons’ families[,]’’ while
not creating rights of inheritance in the 1886
lands, constituted ‘‘part of the directive to the
Secretary as to the scope of his discretion in
spending the appropriated funds.’’ Wolfchild
VI, 559 F.3d at 1242 (emphasis added).
And as the extensive memoranda cited above
demonstrate, the government’s current interpretation
directly contradicts the Department’s
long-standing position that the Department
was statutorily bound to administer
the funds for the benefit of the loyal Mdewakanton
and their lineal descendants. See
also Wolfchild VI, 559 F.3d at 1248 (‘‘To be
sure, the Interior Department has consistently
recognized that in the original legislation
Congress intended for the appropriated
funds to be expended for the benefit of the
1886 Mdewakantons.’’).

[43] The government’s interpretation of
the breadth of the Secretary’s discretion
would render meaningless the provisions of
the Appropriations Acts dictating that the
funds were to benefit the eligible Mdewakanton
only and that the funds were to be
distributed as equally as possible. Such an
interpretation would contravene the ‘‘ ‘cardinal
principle of statutory construction’ that ‘a
statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void,
or insignificant.’ ’’ TRW Inc. v. Andrews,
534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d
339 (2001) (quoting Duncan v. Walker, 533
U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d
251 (2001)); see Astoria Fed. Sav. and Loan
Ass’n v. Solimino, 501 U.S. 104, 112, 111
S.Ct. 2166, 115 L.Ed.2d 96 (1991) (courts
must ‘‘construe statutes, where possible, so
as to avoid rendering superfluous any parts
thereof.’’); Inhabitants of Montclair Tp. v.
Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27

L.Ed. 431 (1883) (‘‘It is the duty of the court
to give effect, if possible, to every clause and
word of a statute.’’); Shoshone, 364 F.3d at
1349 (‘‘Accepted rules of statutory construction
suggest that we should attribute meaning
to all of the words in if possible.’’
(citation omitted)); Splane v. West, 216
F.3d 1058, 1068 (Fed.Cir.2000) (‘‘We must
construe a statute, if at all possible, to give
effect and meaning to all its terms.’’ (citation
omitted)). In this instance, the court need
not strain to interpret the Appropriations
Acts in a way that gives legal effect to all its
terms. The terms of the Acts make explicit
that although Congress provided discretion
to the Secretary to determine what particular
items to purchase for beneficiaries of the
Acts, depending on what he ‘‘deemed best’’ in
each case, the Acts did not provide the Secretary
with such broad discretion so as to
negate the specific statutory restrictions.
The government’s citation to Milk Train,
310 F.3d 747, provides no added support for
its position. In that case, Secretary of Agriculture
had placed a 26,000 [hundredweight
(‘‘cwt’’) ] per dairy operation cap on what
could be considered ‘‘eligible production’’ for
purposes of determining how much money a
producer could receive in subsidies created
for the Department to administer pursuant
to its 2000 Appropriations Act, Pub.L. No.
106–78, § 805, 113 Stat. 1135, 1179 (1999).
See 310 F.3d at 748–49. The 2000 Appropriations
Act provided that the appropriated
funds were to be used ‘‘to provide assistance
directly to TTT dairy producers, in a manner
determined appropriate by the Secretary.’’
Id. at 751. The D.C. Circuit concluded that
the district court lacked jurisdiction to review
the plaintiffs’ challenge to the cap because
‘‘Congress has left to the Secretary’s
sole judgment the determination of the manner
for providing assistance to dairy farmers.’’
Id. In so finding, the court noted that
the statute provided ‘‘no relevant statutory
reference point for the court other than the
decisionmaker’s own views of what is an appropriate
manner of distribution to compensate
for 1999 losses.’’ Id. (citation and internal
quotation omitted).
This is not, however, a case where the
court lacks any ‘‘meaningful standard

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96 FEDERAL CLAIMS REPORTER

against which to judge the agency’s exercise
of discretion.’’ Milk Train, 310 F.3d at 751
(quoting Lincoln, 508 U.S. at 191, 113 S.Ct.
2024). To the contrary, the Acts provide
quite straightforward standards by which to
judge the Secretary’s conduct. While the
Secretary was entitled to exercise discretion
as to the exact manner of implementation, he
was at all times bound by the explicit mandates
that the Acts’ benefits extend to eligible
Mdewakanton only and that they be distributed
in as equal amounts as practicable.53
Accordingly, the Secretary was empowered
and required to distribute the funds to the
group of statutorily authorized beneficiaries
under the Acts—the lineal descendants of the
loyal Mdewakanton.

[44] Fairly interpreted, in light of the
historical record and ninety years of the Department’s
own legal opinions and actions,
the Appropriations Acts are reasonably amenable
to the reading that they created a
money-mandating duty on the part of the
government to the lineal descendants of the
loyal Mdewakanton.54 Although the Secretary
had significant discretion under the Appropriations
Acts, in disbursing the leasing
funds at issue, he was statutorily mandated
to provide those funds to the lineal descendants
of the loyal Mdewakanton. Plaintiffs
fall within the class of plaintiffs entitled to
recover under the Appropriations Acts as
they are lineal descendants of the 1886 Mdewakanton55 over plaintiffs’ claims; the government’s
motion to dismiss on this ground is
accordingly denied. Because plaintiffs assert
that they were displaced from receiving any
portion of the funds derived from the 1886
lands as a result of the Secretary’s distribution
of the funds to the three communities,
their particular claims fall within the scope of
the Appropriations Acts and likewise survive
the government’s motion to dismiss for failure
to state a claim under Rule 12(b)(6). See
Adair, 497 F.3d at 1251.

2. Money obtained from the 1886 lands
after adoption of the 1980 Act.
[45] Plaintiffs argue that ‘‘fter the
1980 Act, under the tatutory se [r]estriction[
s], the Department of the Interior
should have continued to collect revenues
from TTT [the three communities’] enterprises
and leases’’ for eventual disbursement to
the lineal descendants. Sixth Am. Compl.
¶ 83. In support of this proposition, plaintiffs
also rely upon the Reorganization Act,
48 Stat. 984, and the Indian Gaming Act,
Pub.L. No. 100–497, 102 Stat. 2467 (1988).
Sixth Am. Compl. ¶¶ 74, 88–98. The government
responds that the 1980 Act terminated
any interest plaintiffs would have had in such
funds and that neither the Reorganization
Act nor the Indian Gaming Act provides
additional support for plaintiffs’ claim. Def.’s
Reply at 18–19; Def.’s Mot. at 25–26.56

53. The decision in Milk Train would be a more
instructive precedent if, for example, the court
there had been reviewing the Secretary’s decision
to distribute the appropriated funds to grain
producers, as opposed to dairy producers, in the
face of statutory language mandating that the
appropriated funds were to be used for the assistance
of dairy producers.
54. The government argues that because the Acts
do not provide a certain sum of money be paid to
the loyal Mdewakanton, the Acts cannot be reasonably
interpreted as giving rise to a moneymandating
duty. However, a statute can be
money-mandating without stating a precise
amount to be paid. See Doe, 463 F.3d at 1324
(‘‘ statute is not wholly discretionary, even if it
uses the word ‘may’ when an analysis of congressional
intent or the structure and purpose of the
statute reveal one of the following: (1) the statute
has ‘clear standards for paying’ money to recipients,
(2) that statute specifies ‘precise amounts’
to be paid, or (3) the statute compels payment
once certain conditions precedent are met.’’)
(emphasis added). As described above, the Acts
contain ‘‘clear standards for paying’’ the money
to the lineal descendants of the loyal Mdewakanton.
55. Plaintiffs and various intervening plaintiffs
have submitted to the court thousands of pages
of genealogical records demonstrating that most
are lineal descendants of loyal Mdewakanton.
See Pls.’ Genealogy Affs., e.g., Loretta Stensland
Family Tree (establishing that numerous plaintiffs
are lineal descendants of Mary Pay Pay
(Pepe)); J.A. 00242 (May 20, 1886 census) (listing
Mary Pepe as a loyal Mdewakanton).
56. The government responds by arguing also that
neither the Indian Gaming Act nor the Reorganization
Act are independently money-mandating
statutes. See Def.’s Reply at 7–11. The court
does not read plaintiffs’ complaint to assert that
either statute independently gives rise to a money-
mandating duty to the lineal descendants;
rather plaintiffs argue that the statutory use restrictions
contained in the Appropriations Acts

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WOLFCHILD v. U.S.
Cite as 96 Fed.Cl. 302 (2010)

The 1980 Act did not terminate plaintiffs’
entitlement to funds collected prior to the
passage of the Act because the terms of the
1980 legislation dealt only with the 1886
lands, and because such funds were collected
and disbursed pursuant to authority derived
by the Secretary from the Appropriations
Acts. However, after the passage of the 1980
Act, the 1886 lands were and are now held by
the United States in trust for the three communities.
See Wolfchild VI, 559 F.3d at
1255. Consequently, the three communities,
not the plaintiffs, would be entitled to any
income derived from those lands because the
communities have become the trust beneficiaries.
See, e.g., 1 GEORGE GLEASON BOGERT,
GEORGE TAYLOR BOGERT, AND AMY MORRIS
HESS, THE LAW OF TRUSTS AND TRUSTEES § 1,
at 11 (3d ed. 2000) (‘‘A trustee holds trust
property ‘for the benefit of’ the beneficiary.
Advantages usually come to the beneficiaryTTTT
How the benefits are to come to the
beneficiary is unimportant. The important
trust concept is the beneficiary’s right to
obtain them.’’). Although the 1980 Act did
not did not affect a blanket repeal of the
Appropriations Acts, see Wolfchild VI, 559
F.3d at 1258 n. 13, the 1980 Act’s ‘‘long-term
disposition of the property purchased pursuant
to the Appropriations Acts,’’ id., renders
the statutory use restrictions contained in
the Appropriations Acts inapplicable to any
funds derived from those lands after such
conversion was had. The government could
not both abide by the mandate that only
eligible Mdewakanton receive the Acts’ benefits
and perform its duties as trustee for the
three communities by ensuring that the beneficiaries
receive the benefits of the trust
corpus. Thus, while funds derived prior to
1980 remain subject to the terms of the
Appropriations Acts, the terms of the 1980
Act prevent the application of the statutory
use restrictions to the 1886 lands and funds
derived from those lands subsequent to the
passage of the 1980 Act.
Nonetheless, plaintiffs argue that the Reorganization
Act ‘‘made the Secretary of the
Interior’s duties perpetual until Congress directed
otherwise.’’ Sixth Am. Compl. ¶ 74.

Specifically, plaintiffs argue that the restrictions
contained in the Appropriations Acts
were extended by the Reorganization Act by
virtue of the following provision: ‘‘The existing
periods of trust placed upon any Indian
lands and any restriction on alienation thereof
are extended and continued until otherwise
directed by Congress.’’ 25 U.S.C. § 462
(quoted at Sixth Am. Compl. ¶ 74). The
historical note to Section 462 indicates that
the Section was applicable ‘‘to all Indian
tribes, all lands held in trust by the United
States for Indians, and all lands owned by
Indians that are subject to a restriction imposed
by the United States on alienation of
the rights of Indians in the lands.’’ The
government asserts that 25 U.S.C. § 462 is
consequently inapplicable to the 1886 lands
because such lands were neither held in trust
nor was title held by the assignees in restricted
fee. See Def.’s Reply at 8–9.

The Federal Circuit definitively held that
the 1886 lands were not held in trust by the
United States and that the eligible Mdewakanton
did not hold title to the land. See
Wolfchild VI, 559 F.3d at 1255 (‘‘[W]e conclude
that, as of the time of the 1980 Act, all
indications were that neither Congress nor
the Department of the Interior had conveyed
any vested ownership rights in the 1886
lands, legal or equitable, to anyone.’’). Accordingly,
25 U.S.C. § 462 does not apply to
the 1886 lands. What is more, however, 25
U.S.C. § 462 provides that the periods of
trust or restriction on alienation extend ‘‘until
otherwise directed by Congress.’’ As noted,
Congress disposed of any interest plaintiffs
had in the 1886 lands by adopting the
1980 Act, thus explicitly excluding the 1886
lands from the scope of 25 U.S.C. § 462.
Likewise, the Indian Gaming Act does not
salvage plaintiffs’ claim as to funds, including
gaming revenue, derived from the 1886 lands
after the passage of the 1980 Act. Plaintiffs
argue that the Department’s administration
of the Indian Gaming Act was subject to the
restrictions contained in the Appropriations
Acts. They also contend that in approving
tribal ordinances, revenue allocation plans,

should have controlled the government’s administration
of those statutes. See Sixth Am. Compl.
¶ 73–98.

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96 FEDERAL CLAIMS REPORTER

constitutions, and other documents pertinent
to tribal gaming under the Indian Gaming
Act that did not ‘‘provide [that] distributions
of revenue from economic enterprises created
as a result of the [Indian Gaming Act]
[would] exclusively and equally benefit [all]
the TTT 1886 Mdewakanton lineal descendants,’’
the government contravened those
restrictions. Sixth Am. Compl. ¶ 97. The
Indian Gaming Act was adopted on October
17, 1988, 102 Stat. 2467; hence, any governmental
approval of the three communities’
tribal or gaming documents occurred after
the passage of the 1980 Act. As noted, the
1980 Act rendered the restrictions contained
in the Appropriations Acts inapplicable to the
1886 lands or to any funds derived from
those lands subsequent to the passage of the
1980 Act. Thus, even if, in the absence of the
1980 Act, the government would have been
theoretically bound to abide by the restrictions
in its approval of the aforementioned
documents, the 1980 Act eliminated those
potential constraints on the government’s actions.
57

Accordingly, the government’s motion to
dismiss for lack of subject matter jurisdiction
is granted respecting plaintiffs’ claims that
they are entitled to funds, gaming and otherwise,
traceable to the 1886 lands after the
passage of the 1980 Act.
3. The method of identifying lineal descendants
for purposes of the Appropriations
Acts.
[46] Plaintiffs claim that the manner in
which the government determined who constituted
lineal descendants of the loyal Mdewakanton
‘‘result[ed] in the exclusion of certain
1886 Mdewakanton lineal descendants
from the distribution of revenue’’ derived
from the 1886 lands. Sixth Am. Compl.
¶ 104. As detailed in the recitation of facts,
the Appropriations Acts defined its beneficiary
class in terms of presence in Minnesota as
of May 20, 1886, which in turn was determined
by the McLeod and Henton listings
(the 1886 census). The historical record before
the court indicates that the Department
followed the Acts’ mandates in preparing the
listings and granting land assignments to
individuals listed on the 1886 census and
their lineal descendants. See Wolfchild I, 62
Fed.Cl. at 529 (describing the Department’s
land assignment system).
Whether this manner of ascertaining the
lineal descendants resulted in the exclusion
of some individuals who may have otherwise
qualified is not an issue properly before this
court. ‘‘It is TTT well established that Congress
can, within constitutional limits, determine
the terms and conditions under which
an appropriation may be used.’’ 1 U.S. Gen.
Accountability Office, Office of the General
Counsel, Principles of Federal Appropriations
Law (3d ed.2004), 2004 WL 5661322
(‘‘GAO Redbook’’); id. (‘‘Congress can decree,
either in the appropriation itself or by
separate statutory provisions, what will be
required to make the appropriation ‘legally
available’ for any expenditure.’’); see also
State of Okla. v. Schweiker, 655 F.2d 401, 406
(D.C.Cir.1981) (noting Congress’s broad discretion
to set the terms of appropriations and
listing cases to that effect). Congress was
accordingly free to define the beneficiary
class of the Appropriations Acts as it deemed
appropriate.58 The government’s motion to
dismiss this claim is accordingly granted.

4. Review of community governing documents.

[47] In count V of plaintiffs’ proposed
sixth amended complaint, plaintiffs ask the

57. In ruling that the 1980 Act terminated any
potential support for plaintiffs’ claims that may
have been found in the Indian Gaming Act and
the Reorganization Act, the court does not mean
to indicate that plaintiffs’ claims would have
been viable but for the 1980 Act. Because ‘‘tribal
recognition remains a political question,’’ Samish,
419 F.3d at 1373, and plaintiffs’ claims as to
the Reorganization Act and the Indian Gaming
Act are essentially grounded in the contention
that the government erred in approving tribal
constitutions and various documents that did not
comport with the Acts’ restrictions, there is a
distinct possibility that plaintiffs’ claims would
have been nonjusticiable, at least in this court
which does not have juridical power under the
federal-question jurisdictional statute, 28 U.S.C.
§ 1331, or the Administrative Procedure Act.
58. As noted previously, the court’s finding that
the appropriated funds conceptually served as a
substitute for terminated treaty payments does
not mean that Congress was in reality legally
obligated to appropriate funds to particular persons
among the loyal Mdewakanton.

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Cite as 96 Fed.Cl. 302 (2010)

court to issue an order setting aside provisions
in the three communities’ constitutions,
ordinances, resolutions, censuses, rolls, and
tribal revenue allocation plans ‘‘which are
repugnant to the tatutory se [r]estriction[
s]’’ and remanding the matter to the
Department of Interior with directions to
cause the governing documents to be modified.
Sixth Am. Compl. ¶ 116. The government
asserts that the court does not have
jurisdiction over that claim and, alternatively,
that such a claim would be barred by the
statute of limitations. Def.’s Opp’n at 17.

[48] For purposes of the Indian Tucker
Act, this court’s power to order equitable
relief is delineated in 28 U.S.C. § 1491(a)(2).
That provision states that ‘‘[t]o provide an
entire remedy and to complete the relief
afforded by the [money] judgment, the court
may, as an incident of and collateral to any
such judgment, issue orders directing restoration
to office or position, placement in appropriate
duty or retirement status, and correction
of applicable records.’’ Section
1491(a)(2) plainly does not convey the power
to afford the equitable relief plaintiffs seek.
See Flowers v. United States, 80 Fed.Cl. 201,
221–22 (2008), aff’d, 321 Fed.Appx. 928 (Fed.
Cir.2008) (noting that 28 U.S.C. § 1491(a)(2)
‘‘enables the court to grant equitable relief
under limited circumstances’’). While ‘‘limited
equitable relief sometimes is available in
Tucker Act suits TTT that equitable relief
must be ‘an incident of and collateral to’ a
money judgment.’’ James v. Caldera, 159
F.3d 573, 580 (Fed.Cir.1998) (quoting 28
U.S.C. § 1491(a)(2)); id. (‘‘Stated another
way, the Court of Federal Claims has no
power [under Section 1491(a) ] to grant affirmative
non-monetary relief unless it is tied
and subordinate to a money judgment.’’ (internal
quotation omitted)). Any money judgment
the court issues in this case would not
be directly tied to the tribal governing documents
plaintiffs seek to set aside; thus, an
order requiring their alteration or modification
could not be characterized as ‘‘an incident
of and collateral to’’ a money judgment.
Accordingly, defendant’s motion to dismiss as
it relates to count V is granted.

5. Breach-of-trust and breach-of-contract
claims.
Plaintiffs include counts relating to claims
of trust mismanagement, breach of contract,
the separately-pled claims of minors in the
amended complaint, but they note that such
claims have been dismissed or otherwise subsumed
into count IV. Sixth Am. Compl. ¶¶ 8–
10. The breach-of-contract claims and separately
pled claims of minors were addressed
and rejected in a prior opinion of this court,
and the breach-of-trust claims were denied in
the Federal Circuit’s opinion. See Wolfchild
VI, 559 F.3d at 1255, 1260 (disposing of
plaintiffs’ trust claims); Wolfchild I, 62 Fed.
Cl. at 547–49 (dismissing plaintiffs’ breach-ofcontract
claim and the separately-pled claims
of minor plaintiffs). Accordingly, the court
grants the government’s motion to dismiss
plaintiffs’ count I (trust mismanagement),
count II (breach of contract), and count III
(separately-pled claims of minor plaintiffs).

6. Partial summary judgment.

As the preceding analysis shows, as lineal
descendants of the 1886 Mdewakanton, plaintiffs
were entitled to the funds derived from
leasing and licensing the 1886 lands prior to
the passage of the 1980 Act. The Indian
Trust Accounting Statute serves to toll the
accrual of the statute of limitations as to this
claim, and the 1980 Act did not affect plaintiffs’
entitlement to the leasing and licensing
funds generated and obtained prior to the
passage of the 1980 Act. The undisputed
facts demonstrate that the government disbursed
the funds to the three communities
rather than to the lineal descendants, thereby
contravening the provisions of the Appropriations
Acts that dictated that only eligible
Mdewakanton could receive the benefits of
the Acts and that such benefits be conferred
in as equal an amount as practicable. Consequently,
the government is liable in damages
in the amount of these funds. Based upon
the text of the Acts and the extensive historical
record, which was largely uncontroverted
by the parties, the court can ascertain ‘‘no
genuine issue as to any material facts.’’
RCFC 56(c)(1); see Matsunutsa, 475 U.S. at
586–87, 106 S.Ct. 1348. Nor has the government
come forward with specific facts dem-

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onstrating a genuine issue for trial. See
RCFC 56(e)(2). Accordingly, plaintiffs’ motion
for summary judgment as to its entitlement
to the funds derived from leasing and
licensing the 1886 lands prior to the passage
of the 1980 Act is granted. As explained
supra, the Wabasha–Land–Transfer funds
are excluded from this grant.

CONCLUSION
For the reasons stated, the court grants in
part and denies in part the government’s
motions to dismiss this action. The government’s
motion to dismiss as it relates to
plaintiffs’ entitlement to the Wabasha–Land–
Transfer funds and any revenue derived
from the 1886 lands after the passage of the
1980 Act is granted. The government’s motion
to dismiss as it relates to plaintiffs’
entitlement to funds derived from leasing
and licensing the 1886 lands prior to the
passage of the 1980 Act is denied. Accordingly,
the court also denies the governments’
motion respecting plaintiffs’ claim for attorneys’
fees. The court grants in full the
government’s motion to dismiss plaintiffs’
count I (trust mismanagement), count II
(breach of contract), count III (separatelypled
claims of minor plaintiffs), and count V
(community governing documents).

The court grants plaintiffs’ cross-motion
for partial summary judgment that: (1) with
the exception of the Wabasha–Land–Transfer
funds, the Secretary was bound to distribute
funds derived from leasing and licensing
the 1886 lands prior to the passage of the
1980 Act to the lineal descendants of the
loyal Mdewakanton, (2) the 1980 Act did not
extinguish plaintiffs’ claims as to those particular
funds, and (3) the Secretary’s disbursal
of those funds to the three communities in
lieu of the lineal descendants as a group
entitles plaintiffs to damages in the amount
of the distributed funds. The court otherwise
denies the plaintiffs’ motion for partial
summary judgment.
Plaintiffs’ motion for leave to file a Sixth
Amended Complaint is granted, and the
court will deem that complaint filed as of
July 9, 2010, the date on which the court
received plaintiffs’ motion. Intervening

plaintiffs’ motions for leave to file their
amended complaints are likewise granted.
The parties are requested to file a joint
status report on or before January 19, 2011,
addressing a means of, and arrangements
for, entering a final judgment in this litigation.
A status conference will be held January
21, 2011 at the National Courts Building
in Washington, D.C., commencing at 10:00
a.m., EST.
It is so ORDERED.
,

Maria Sandra FERNANDEZ DE
IGLESIAS, Plaintiff,
v.
The UNITED STATES, Defendant.
No. 08–464C.
United States Court of Federal Claims.
Dec. 22, 2010.
Background: Landlord filed action under
Contract Disputes Act (CDA) against
United States, as tenant of residence in
Ju´arez, Chihuahua, Mexico, demanding
compensation for amount of time of hold
over. United States moved for summary
judgment.

Holdings: The Court of Federal Claims,
Futey, J., held that:
(1) Mexican statute that gave right to
landlord to increase rent on leased
premises if tenant requested extension
of lease did not apply to landlord’s
claim;
(2) use general principles, due to lack of
directly applicable Mexican statute,
was not warranted;
(3) factual issue existed as to whether single
ten percent increase in monthly
rent was appropriate for unilateral extension
of lease by United States;

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101 FEDERAL CLAIMS REPORTER

modifications issued pursuant to an ‘‘Options
clause,’’ as here, are ‘‘signed only by the
contracting officer.’’ FAR 43.103(b). The
regulations say nothing about requiring a
contractor’s consent to exercise an option.
Modification 34 thus created a binding extension
of Teamstaff’s FSS contract without the
signature and return of the document by
Teamstaff’s President. The Court does not
need to consider the circumstances under
which Teamstaff may have signed the document.
At various stages, Top Echelon included
other grounds in support of its protest, but
the major issues it raised are discussed
above. The Court considered all of Top Echelon’s
arguments, and the failure to address
each and every contention in this opinion
should not be read to suggest that any argument
was overlooked. None of Top Echelon’s
arguments would have altered the VA’s
selection of Teamstaff for the Dallas CMOP
facility.

Conclusion
Based upon the foregoing, the Court DISMISSES
Seaborn’s protest for lack of standing,
DENIES Top Echelon’s motion for
judgment on the administrative record, and
GRANTS Defendant’s and Teamstaff’s motions
for judgment on the administrative record.
The motions of Top Echelon and Teamstaff
to supplement the administrative record
are GRANTED IN PART and DENIED IN
PART, as indicated in Section C above.
On or before October 6, 2011, counsel for
the parties shall carefully review this opinion
for competition-sensitive, proprietary, confidential,
or other protected information, and
submit to the Court any proposed redactions
before the opinion is released for publication.
IT IS SO ORDERED.

,

Sheldon Peters WOLFCHILD,
et al., Plaintiffs,
v.
UNITED STATES, Defendant.
Nos. 03–2684L, 01–568L.
United States Court of Federal Claims.
Aug. 5, 2011.
As Corrected Aug. 18, 2011.
Background: Lineal descendants of Mdewakanton
Sioux who were loyal to United
States during 1862 Sioux uprising in
Minnesota sued United States for, inter
alia, breach of fiduciary duty based upon
government’s management of property
originally provided for benefit of loyal
Mdewakanton. Following partial summary
judgment, 96 Fed.Cl. 302, descendants
moved to amend complaint, government
moved for dismissal, and parties crossmoved
for summary judgment.
Holdings: The Court of Federal Claims,
Lettow, J., held that:

(1) descendants were not ‘‘tribe’’ within
meaning of Non-Intercourse Act;
(2) historic land-grant acts did not impose
specific money-mandating duty upon
government;
(3) historic land-grant acts did not impose
specific fiduciary duty upon government;
(4) descendants’ Fifth Amendment takings
claims were time-barred;
(5) Indian Judgment Distribution Act was
applicable to claims; and
(6) government erred in shifting burden
concerning identification and proof of
descent to descendants.
Motions granted in part and denied in part.
1. Indians O197
Although not guaranteed under assignment
system, in practice, Indian assignee’s
land passes directly to his children upon his
death.

A52

55

WOLFCHILD v. U.S.
Cite as 101 Fed.Cl. 54 (2011)

2. Federal Courts O1111

[mdenney]

WOLFCHILD v. U.S.
Cite as 101 Fed.Cl. 54 (2011)

2. Federal Courts O1111
So long as underlying facts or circumstances
relied upon by Court of Federal
Claims plaintiff may be proper subject of
relief, he ought to be afforded opportunity to
test his claim on merits. RCFC, Rule
15(a)(2), 28 U.S.C.A.
3. Federal Courts O1111
Although Court of Federal Claims ought
to exercise liberally its discretion to grant
leave to amend, undue delay, bad faith or
dilatory motive on part of movant, repeated
failure to cure deficiencies by amendments
previously allowed, undue prejudice to opposing
party by virtue of allowance of amendment,
or futility of amendment may justify
denial of a motion for leave to amend.
RCFC, Rule 15(a)(2), 28 U.S.C.A.

4. Federal Courts O1111
Motion to amend may be deemed futile
by Court of Federal Claims if claim added by
amendment would not withstand motion to
dismiss. RCFC, Rule 15(a)(2), 28 U.S.C.A.
5. Federal Courts O1111
When party in Court of Federal Claims
faces possibility of being denied leave to
amend on ground of futility, that party must
demonstrate that its pleading states claim on
which relief could be granted, and it must
proffer sufficient facts supporting amended
pleading that claim could survive dispositive
pretrial motion. RCFC, Rule 15(a)(2), 28
U.S.C.A.

6. Federal Courts O1071
Jurisdiction is threshold issue, and
Court of Federal Claims must satisfy itself
that it has jurisdiction to hear and decide
case before proceeding to merits.
7. Federal Courts O1111
When considering jurisdictional dispute,
Court of Federal Claims draws all reasonable
inferences in favor of plaintiff, and accepts as
true undisputed allegations in complaint.
8. Federal Courts O1113
Plaintiff will not defeat jurisdictional
challenge in Court of Federal Claims by relying
merely on allegations in complaint, but
must instead bring forth relevant, competent
proof to establish jurisdiction.
9. Federal Courts O1113
Court of Federal Claims plaintiff bears
burden of establishing by preponderance of
evidence court’s subject matter jurisdiction
over its claim.
10. Federal Courts O1113
In establishing predicate jurisdictional
facts, Court of Federal Claims is not restricted
to face of pleadings, but may review evidence
extrinsic to pleadings, including affidavits
and deposition testimony.
11. Indians O120, 174
Non-Intercourse Act bars land conveyances
by Indians to non-Indians unless made
or ratified by Congress. 25 U.S.C.A. § 177.

12. Indians O120, 174
Purpose of Non-Intercourse Act is to
prevent unfair, improvident, or improper disposition
by Indians of lands owned or possessed
by them to other parties, except United
States, without consent of Congress and
to enable government, acting as parens patriae
for Indians, to vacate any disposition of
their lands made without its consent. 25
U.S.C.A. § 177.
13. Federal Courts O1110
‘‘Prudential standing’’ inquiry looks to
whether constitutional or statutory provision
on which claim rests properly can be understood
as granting persons in plaintiff’s position
right to judicial relief.
See publication Words and Phrases
for other judicial constructions and definitions.

14. Federal Courts O1110
Prudential standing inquiry asks whether
interest sought to be protected by complainant
is arguably within zone of interests
to be protected or regulated by statute or
constitutional guarantee in question.
15. Indians O120, 237
To establish standing under Non-Intercourse
Act, plaintiffs are required to demonstrate
that they represent entities that: (1)
were tribes at time land was alienated, and

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101 FEDERAL CLAIMS REPORTER

(2) remain tribes at time of suit. 25 U.S.C.A.
§ 177.
16. Federal Courts O1110
Prudential standing doctrine represents
type of threshold question may be resolved
before addressing jurisdiction.

17. Indians O120, 237
United States O105
Lineal descendants of ‘‘loyal’’ Mdewakanton
Sioux were not ‘‘tribe’’ within meaning
of Non-Intercourse Act, for purposes of
standing to maintain claim seeking remuneration
for lands allegedly granted by United
States government following 1862 uprising;
although descendants’ birth certificates demonstrated
shared anthropological or geographical
connections through familial unions,
they did not show that descendants
constituted united community, existing and
living under one leadership or government
and inhabiting particular territory. 25
U.S.C.A. § 177.
See publication Words and Phrases
for other judicial constructions and definitions.

18. United States O125(3, 7)
United States, as sovereign, is immune
from suit save as it consents to be sued, and
terms of its consent to be sued in any court
define that court’s jurisdiction to entertain
suit.
19. Federal Courts O1072
United States O127(1)
Indian Tucker Act provides jurisdictional
platform for suit, but does not itself create
substantive right enforceable against government
by claim for money damages. 28
U.S.C.A. § 1505.
20. United States O125(5)
Plaintiff grounding its claim in Indian
Tucker Act must demonstrate that some other
source of law creates money-mandating
right or duty that falls within ambit of waiver
of sovereign immunity. 28 U.S.C.A. § 1505.

21. United States O125(5)
Where plaintiff alleges that statute provides
right or duty that falls within waiver of
sovereign immunity, for purposes of jurisdiction
under Indian Tucker Act, statute must
be fairly interpreted or reasonably amenable
to interpretation that it mandates right of
recovery in damages. 28 U.S.C.A. § 1505.
22. Federal Courts O1072
If court determines that statute upon
which plaintiff relies does not impose upon
government duty which gives rise to claim
for money damages, court lacks subject matter
jurisdiction over claim under Indian
Tucker Act. 28 U.S.C.A. § 1505.

23. Federal Courts O1081
Historic non-implemented Congressional
acts providing for grant of lands to ‘‘loyal’’
Mdewakanton Sioux following 1862 uprising
did not impose specific money-mandating
duty upon government, for purposes of
court’s jurisdiction under Indian Tucker Act
as to action brought by lineal descendants of
Sioux, seeking remuneration for lands; plain
language of acts revealed that legislation
only permitted, not mandated, government to
provide lands to individual qualified Sioux.
28 U.S.C.A. § 1505.

24. Federal Courts O1072
While discretionary terms may trigger
presumption that statute is not money-mandating,
for purposes of Indian Tucker Act
jurisdiction, presumption can be overcome by
intent of Congress and other inferences that
court may rationally draw from structure and
purpose of statute at hand. 28 U.S.C.A.
§ 1505.
25. United States O105
Statute, or confluence of statutes and
regulations, can create fiduciary duty on part
of government which can give rise to claim
for damages under Indian Tucker Act. 28
U.S.C.A. § 1505.

26. Federal Courts O1081
Full fiduciary obligations are applicable
to Indian Tucker Act jurisdictional requirements
only if plaintiff identifies specific
rights-creating or duty-imposing statutory or
regulatory prescription, and if that prescription
bears hallmarks of conventional fiduciary
relationship. 28 U.S.C.A. § 1505.

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27. Federal Courts O1081
Historic non-implemented Congressional
acts providing for grant of lands to ‘‘loyal’’
Mdewakanton Sioux following 1862 uprising
did not impose specific fiduciary duty upon
government, for purposes of court’s jurisdiction
under Indian Tucker Act as to action
brought by lineal descendants of Sioux, seeking
remuneration for lands; acts were directory
propositions which did not impose any
specific fiduciary obligations that would create
trust relationship between Sioux and government.
28 U.S.C.A. § 1505.
28. Federal Courts O1106
Limitations period applicable to Indian
Tucker Act claims is not subject to equitable
tolling or implied exceptions. 28 U.S.C.A.
§§ 1505, 2501.

29. Federal Courts O1107
Fifth Amendment takings claim accrues
when all events have occurred which fix liability
of government and entitle claimant to
institute action. U.S.C.A. Const.Amend. 5;
28 U.S.C.A. § 2501.
30. Federal Courts O1107
In context of Fifth Amendment, key
date for accrual purposes is date on which
plaintiff’s land has been clearly and permanently
taken. U.S.C.A. Const.Amend. 5; 28
U.S.C.A. § 2501.
31. Federal Courts O1107
Proper focus, for accrual under statute
of limitations purposes in Fifth Amendment
takings action, is upon time of government’s
acts, not upon time at which consequences of
acts became most painful. U.S.C.A. Const.
Amend. 5; 28 U.S.C.A. § 2501.

32. Federal Courts O1107
Fifth Amendment takings claim only accrues
if claimant knew or should have known
that claim existed. U.S.C.A. Const.Amend.
5; 28 U.S.C.A. § 2501.
33. Federal Courts O1107
Fifth Amendment takings claims
brought by lineal descendants of ‘‘loyal’’
Mdewakanton Sioux, seeking remuneration
for lands allegedly granted by United States
government following 1862 uprising, accrued
under Indian Tucker Act during year in
which United States allegedly began to fail to
provide lands under non-implemented Congressional
acts providing for grants.
U.S.C.A. Const.Amend. 5; 28 U.S.C.A.
§§ 1505, 2501.
34. Federal Courts O1107
‘‘Continuing claims doctrine’’ applies
where plaintiff’s claim is inherently susceptible
to being broken down into series of independent
and distinct events or wrongs, each
having its own associated damages.
See publication Words and Phrases
for other judicial constructions and definitions.

35. Federal Courts O1107
Continuing claims doctrine does not apply
where single governmental action causes
series of deleterious effects, even though
those effects may extend long after initial
governmental breach.
36. Federal Courts O1107
Continuing claims doctrine was inapplicable
to time-barred Fifth Amendment takings
claims brought by lineal descendants of
‘‘loyal’’ Mdewakanton Sioux, seeking remuneration
for lands allegedly granted by United
States government following 1862 uprising;
purported takings were accomplished
during 1800s, and did not renew or replicate
each day or with each physical incursion
upon lands at issue. U.S.C.A. Const.Amend.
5; 28 U.S.C.A. § 2501.

37. United States O105
Indian Trust Accounting Statute does
not apply as to claims centering on parcels of
land not subject to trust relationships or
governmental fiduciary duties. Department
of The Interior And Related Agencies Appropriations
Act, 2004, § 1, 43 U.S.C.A. § 1735
note.
38. Federal Courts O1106
Statute of limitations applicable to
claims under Indian Tucker Act treats children
as if they were legally unable to file
suit, and allows filing within three years after
child reaches majority status. 25 U.S.C.A.
§ 177; 28 U.S.C.A. § 2501.

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101 FEDERAL CLAIMS REPORTER

39. Statutes O190, 208, 217.4
Where text of statute does not furnish
definitive answer as to interpretation of
terms, reference to context, legislative history,
and canons of statutory construction is
warranted.
40. Statutes O223.2(1.1)
‘‘In pari materia’’ canon of statutory construction
dictates that statutes addressing
same subject matter generally should be
read as if they were one law.
See publication Words and Phrases
for other judicial constructions and definitions.

41. United States O105
Indian Judgment Distribution Act was
applicable to claims brought by lineal descendants
of ‘‘loyal’’ Mdewakanton Sioux, seeking
remuneration for lands allegedly granted by
United States government following 1862 uprising,
since descendants constituted identifiable
‘‘group’’ of American Indians for purposes
of statute; term did not limit statutory
scope to judgments pertaining to singular
Indian entities, as opposed to judgments in
favor of grouped individuals. Distribution of
Judgment Act, § 1(a), 25 U.S.C.A. § 1401(a);
25 C.F.R. § 87.1(g).
See publication Words and Phrases
for other judicial constructions and definitions.

42. United States O105
Indian Judgment Distribution Act was
applicable to claims brought by lineal descendants
of ‘‘loyal’’ Mdewakanton Sioux, seeking
remuneration for lands allegedly granted by
United States government following 1862 uprising,
since remuneration pertained to
‘‘funds appropriated in satisfaction of judgment’’;
no separate Congressional appropriation
was necessary to trigger application of
Distribution Act, since exclusive statutory
mechanism already existed for funding of
potential judgments. Distribution of Judgment
Act, § 1(a), 25 U.S.C.A. § 1401(a); 28
U.S.C.A. § 2517; 31 U.S.C.A. § 1304.
See publication Words and Phrases
for other judicial constructions and definitions.
43. United States O105
United States government erred in shifting
burden concerning identification and
proof of descent to lineal descendants of ‘‘loyal’’
Mdewakanton Sioux who sued government,
seeking remuneration for lands allegedly
granted by United States government
following 1862 uprising; pursuant to Indian
Judgment Distribution Act, government was
obligated to undertake historical research to
determine appropriate templates by which to
adjudicate claimant eligibility. Distribution
of Judgment Act, § 1(a), 25 U.S.C.A.
§ 1401(a); 25 C.F.R. § 87.3.
West Codenotes
Recognized as Unconstitutional
25 U.S.C.A. § 1402(a)
25 U.S.C.A. § 1404
Erick G. Kaardal, Mohrman & Kaardal,
P.A., Minneapolis, MN, for Wolfchild plaintiffs.
With him on the briefs were William
F. Mohrman, Mohrman & Kaardal, P.A.,
Minneapolis, MN.
Jody H. Schwarz and Stephen Finn, Trial
Attorneys, Natural Resources Section, Environment
& Natural Resources Division, United
States Department of Justice, Washington,
D.C., for defendant. With them on the
briefs were Ignacia S. Moreno, Assistant Attorney
General, and Sam Costello, Daniel
Steele, and J. Nathanael Watson, Trial Attorneys,
Environment and Natural Resources
Division, United States Department of Justice,
Washington, D.C. Of counsel were Kenneth
Dalton and James Porter, Office of the
Solicitor, Department of the Interior, Washington,
D.C.
Jack E. Pierce, Pierce Law Firm, PA,
Minneapolis, MN, for the Cermak plaintiffs
and for the Stephens, R. Cermak, J. Cermak,
Henderson, Klingberg, Alkire, Arnold, and
Godoy groups of intervening plaintiffs.
Kelly H. Stricherz, Vermillion, SD, for the
Mozak group of intervening plaintiffs.
Garrett J. Horn, Horn Law Office, Yankton,
SD, for the Saul, Trudell, Taylor, Ferris,

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Henry, and Vassar groups of intervening
plaintiffs.
Creighton A. Thurman, Yankton, SD, for
the Cournoyer, Robinette, Kimbell, French,
and Wanna groups of intervening plaintiffs.
Elizabeth T. Walker, Walker Associates,
Alexandria, VA, for the anonymous Walker,
the Enyard, and the Kitto groups of intervening
plaintiffs.
Robin L. Zephier, Abourezk & Zephier,
PC, Rapid City, SD, for the Zephier group of
intervening plaintiffs.
Larry Leventhal, St. Paul, MN, for the
Burley group of intervening plaintiffs.
Wood R. Foster, Jr., Siegel, Brill, Greupner,
Duffy & Foster, PA, Minneapolis, MN,
for the Lafferty, Blaeser, Whipple, and Lowe
groups of intervening plaintiffs.
Bernard J. Rooney, Amherst, WI, for the
Rooney group of intervening plaintiffs.
Scott A. Johnson & Todd M. Johnson,
Johnson Law Group, Minnetonka, MN, for
the Rocque group of intervening plaintiffs,
the Descendants of Joseph Coursolle group
of intervening plaintiffs.
James L. Blair, Renaud, Cook, Drury, Mesaros,
PA, Phoenix, AZ, for the anonymous
Blair group of intervening plaintiffs. With
him on the briefs was Barry P. Hogan, Renaud
Cook Drury Mesaros, PA, Phoenix, AZ.
Gary J. Montana, Montana & Associates,
Osseo, WI, for the Julia DuMarce group of
intervening plaintiffs.
Nicole N. Emerson, Lynn, Jackson, Shultz
& Lebrun, PC, Sioux Falls, SD, for the Garreau
group of intervening plaintiffs.
Douglas Kettering, Kettering Law Office,
Yankton, SD, for the Ke Zephier group of
intervening plaintiffs.
Randy V. Thompson, Nolan, MacGregor,
Thompson & Leighton, St. Paul, MN, for the
Abrahamson group of intervening plaintiffs.
Frances Felix, pro se, Minneapolis, MN,
for herself and members of her immediate
family as intervening plaintiffs.
Royce Deryl Edwards, Jr., Joplin, MO, for
the Robertson–Vadnais group of intervening
plaintiffs.
Rory King, Bantz, Gosch & Cremer, LLC,
Aberdeen, SD, for the Marvel Jean DuMarce
group and the Youngbear group.
Brian L. Radke, Radke Law Office, P.C.,
Sioux Falls, SD, for the Schroder group of
intervening plaintiffs.
OPINION AND ORDER
LETTOW, Judge.
On December 21, 2010, the court issued
the seventh opinion in this long-pending litigation
involving approximately 20,750 persons
of Indian descent. Wolfchild v. United
States, 96 Fed.Cl. 302, 310 (2010) (‘‘Wolfchild
VII ’’). In that decision, the court held that
plaintiffs are entitled to certain funds derived
from leasing and licensing lands that had
been secured and reserved for eligible Indians
pursuant to Appropriations Acts passed
in 1888, 1889, and 1890. Id. at 352. The
parties have since stipulated to the amount of
funds at issue as of January 1, 2011. The
case is now before the court on pending
cross-motions for summary judgment respecting
persons who qualify as proper
claimants to those funds, and on the related
matter of whether the Indian Tribal Judgment
Funds Use or Distribution Act, 25
U.S.C. §§ 1401–1408, applies to any judgment
entered in this case. In addition, since
the court’s opinion of December 21 was rendered,
plaintiffs and plaintiff-intervenors
have filed numerous motions to amend complaints
and motions for summary judgment
on a variety of additional substantive claims.
FACTS1
As of 1862, the Minnesota Sioux consisted
of four bands known as the Mdewakanton,
the Wahpakoota (together comprising the
‘‘lower bands’’), the Sisseton, and the Wahpeton
(comprising the ‘‘upper bands’’). Wolfchild
VII, 96 Fed.Cl. at 311–12. At that time,
the relationship between the Minnesota
Sioux and the United States was defined and
1. A brief recitation of the relevant facts is provided
in this decision. A detailed account of the
historical background of this case can be found
in this court’s prior opinions, including especially
its most recent opinion, Wolfchild VII, 96
Fed.Cl. 302.

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governed by a series of treaties, which provided
generally for the supply of land and
funds to the Sioux. Id. at 312–13. In August
of 1862, individuals from each of the
four bands revolted against the United
States, killing settlers, destroying and damaging
property, and breaching the treaties
then held with the United States. Id. at 313.
As a consequence, the United States annulled
its treaties with the Sioux, which had the
effect of, among other things, voiding the
annuities that had been granted to the Sioux
under those treaties. Id. Additionally, the
United States confiscated the Sioux lands of
Minnesota and later directed that the Sioux
be removed to tracts of land outside the
limits of the then-existing states. Id. These
steps were accomplished by two legislative
actions taken by Congress and signed by
President Lincoln in 1863: the Act of February
16, 1863, ch. 37, 12 Stat. 652, and the Act
of March 3, 1863, ch. 119, 12 Stat. 819 (together,
‘‘the 1863 Acts’’). Id.
Some of the Sioux, however, remained loyal
to the United States during the uprising
by either not participating in the revolt or
acting affirmatively to save the settlers.
Wolfchild VII, 96 Fed.Cl. at 313. By their
actions, those Sioux severed their tribal relationships.
Although Congress voided all
treaties with the Sioux, in the 1863 Acts it
recognized the loyalty—and ensuing hardship—
of those ‘‘friendly Sioux.’’ Id. at 313–
14. In Section 9 of the Act of February 16,
1863, Congress authorized the Department of
the Interior to assign up to eighty acres of
public land to each friendly Sioux:
[T]he Secretary of the Interior is hereby
authorized to set apart of the public lands,
not otherwise appropriated, eighty acres in
severalty to each individual of the beforenamed
bands [the Sisseton, Wahpeton,
Mdewakanton, and Wahpakoota of the Dakota
or Sioux Indians] who exerted himself
in rescuing the whites from the late massacre
[by] said Indians. The land so set
apart TTT shall not be aliened or devised,
except by the consent of the President of
the United States, but shall be an inheritance
to said Indians and their heirs forever.
Act of February 16, 1863, ch. 37, § 9, 12 Stat.
at 654.
Two weeks after enacting this statute,
Congress passed a second act providing for
the friendly Sioux. The second Act of 1863
supplemented the first Act in important respects.
Section 1 provided that the President
was ‘‘authorized TTT and directed to
assign to and set apart’’ ‘‘outside of the limits
of any state’’ eighty acres of ‘‘good agricultural
lands’’ for all of the Sioux, regardless of
loyalty. Act of March 3, 1863, ch. 119, § 1,
12 Stat. at 819. This grant of land ‘‘appeared
to be an attempt to address the fact that the
first Act of 1863 confiscated all Sioux land,
leaving the Sioux with no direction as to
where they might make a new home.’’
Wolfchild VII, 96 Fed.Cl. at 314. In Section
4 of the second 1863 Act, Congress provided
for the friendly Sioux specifically:
t shall be lawful for [the] Secretary [of
the Interior] to locate any meritorious individual
Indian of [the four] bands, who exerted
himself to save the lives of the
whites in the late massacre, upon [the former
Sioux reservation lands] on which the
improvements are situated, assigning the
same to him to the extent of eighty acres,
to be held by such tenure as is or may be
provided by law TTT [provided] [t]hat no
more than eighty acres shall be awarded to
any one Indian, under this or any other
act.
Act of March 3, 1863, ch. 119, § 4, 12 Stat. at
819.2 Ultimately, no lands were provided to
the friendly Sioux pursuant to the 1863 Acts;
however, neither act has been repealed.
Wolfchild VII, 96 Fed.Cl. at 315.
After additional failed legislative attempts
to provide for the friendly Sioux, in 1888,
1889, and 1890, Congress enacted Appropriations
Acts which provided funds to the Secretary
of the Interior with an accompanying
mandate to purchase for those friendly Sioux
2. The relationship between the two Acts of 1863
was a point of dispute resolved in the court’s
prior opinion. See Wolfchild VII, 96 Fed.Cl. at
314–15. Ultimately, the court concluded that the
text and legislative history of the Acts demonstrated
that the second Act of 1863 did not supersede
the first Act; rather, the two had distinguishable
scopes and were complementary in
their application. See id.

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who belonged to the Mdewakanton band specifically
(‘‘loyal Mdewakanton’’) land, agricultural
implements, and livestock. See Wolfchild
VII, 96 Fed.Cl. at 315–18; Act of Aug. 19,
1890, ch. 807, 26 Stat. 336, 349; Act of Mar.
2, 1889, ch. 412, 25 Stat. 980, 992–93; Act of
June 29, 1888, ch. 503, 25 Stat. 217, 228–29.
Unlike the prior unsuccessful Acts of 1863,
under the 1888, 1889, and 1890 Appropriations
Acts, land and other goods were purchased
for the loyal Mdewakanton. Wolfchild
VII, 96 Fed.Cl. at 318. The land (‘‘1886
lands’’) was conveyed to eligible Mdewakanton
under an assignment system, pursuant to
which title was retained in the United States’
name, preventing alienation and sale to others.
Id.
[1] The text delineating the beneficiary
class in each Appropriation Act varied in
minute respects, but the essential thrust of
the Acts was Congress’ desire that loyal
Mdewakanton would be identified as those
Mdewakanton who had severed their tribal
relations and who had either remained in, or
were removing to, Minnesota as of May 20,
1886.3 To determine the persons who would
be considered ‘‘loyal’’ Mdewakanton under
Congress’ definition and thus would receive
the benefits of the Appropriations Acts, the
Department of Interior relied upon two censuses:
the McLeod listing and the Henton
listing. Wolfchild VII, 96 Fed.Cl. at 316.
The McLeod listing was generated in 1886 by
U.S. Special Agent Walter McLeod and listed
all of the full-blood Mdewakantons remaining
in Minnesota at the time. Id. Under
the Secretary’s direction, on January 2, 1889,
a supplementary census was taken by Robert
B. Henton, Special Agent for the Bureau of
Indian Affairs (‘‘BIA’’), of the Mdewakanton
living in Minnesota since May 20, 1886. Id.
That listing included some mixed bloods.
Together, these listings were used to distribute
the benefits of the Appropriations Acts to
those persons whose names appeared on the
lists, and subsequently, to lineal descendants
of those listed persons. Id.4
Eventually, funds were generated by and
derived from the 1886 lands, which monies
were placed in Treasury trust fund accounts.
Wolfchild VII, 96 Fed.Cl. at 319–21. Some
of these funds were obtained from a transfer
of a portion of the 1886 lands by the United
States to the Upper Mississippi River Wild
Life and Fish Refuge (‘‘the Wabasha Land
Transfer’’). Id. at 319–20. The remaining
portion of the money, however, stemmed
from Interior’s policy of leasing or licensing
1886 lands for fair market value where no
eligible Mdewakanton or lineal descendant
was available for a land assignment. Id. at
320. In 1975, the BIA performed a detailed
accounting of all funds derived from the 1886
lands then held by the Treasury. Id. at 321.
Around the same time, Congress altered
significantly the status of the 1886 lands. In
1980, Congress provided that the 1886 lands
which ‘‘were acquired and are now held by
the United States for the use or benefit of
certain Mdewakanton Sioux Indians,’’ would
henceforth be ‘‘held by the United States TTT
in trust for’’ three Indian communities—the
Shakopee Mdewakanton Sioux Community,
the lower Sioux Community, and the Prairie
Indian Community—which had formed in the
vicinity of the several 1886 land purchases.
Act of 1980, Pub.L. No. 96–557, 94 Stat. 3262
(‘‘1980 Act’’). That legislation, however, did
not address the funds derived from the 1886
3. See Act of Aug. 19, 1890, 26 Stat. at 349 (defining
the beneficiary class as ‘‘full and mixed blood
Indians in Minnesota heretofore belonging to the
M[de]wakanton band of 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’’); Act of Mar. 2, 1889, 25
Stat. at 992 (defining the beneficiary class as
‘‘full-blood Indians, in Minnesota heretofore belonging
to the M[de]wakanton band of 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’’); Act of
June 29, 1888, 25 Stat. at 228 (defining the
beneficiary class as ‘‘full-blood Indians in Minnesota,
belonging to the M[de]wakanton band of
Sioux Indians, who have resided in said State
since the twentieth day of May, A.D. eighteen
hundred and eighty-six, and severed their tribal
relations’’).
4. ‘‘Although not guaranteed under the assignment
system, in practice, an assignee’s land
would pass directly to his children upon his
death.’’ Wolfchild v. United States, 62 Fed.Cl.
521, 529 (2004) (‘‘Wolfchild I ’’).

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lands then being held by the Treasury. Nevertheless,
in 1981 and 1982 those funds were
distributed to the three communities.
Wolfchild VII, 96 Fed.Cl. at 323–24.5
PROCEDURAL HISTORY
Plaintiffs aver that they are lineal descendants
of the loyal Mdewakanton. See
Wolfchild I, 62 Fed.Cl. at 524. They filed
their complaint in this case on November 18,
2003, and since that time the number of
plaintiffs has grown to approximately 20,750
persons.6
On October 27, 2004, the court granted
partial summary judgment for plaintiffs,
holding that a trust for the benefit of the
loyal Mdewakanton and their lineal descendants
was created by the Appropriations
Acts. See Wolfchild I, 62 Fed.Cl. at 555.7
Approximately two and one half years after
that decision, the government interposed a
motion to certify the court’s decisions in
Wolfchild I, Wolfchild II, and Wolfchild III
for interlocutory appeal under 28 U.S.C.
§ 1292(d). See Wolfchild v. United States,
78 Fed.Cl. 472 (2007) (‘‘Wolfchild V ’’). The
court granted the government’s motion in
part and certified the questions of whether
the Appropriations Acts created a trust for
the loyal Mdewakanton and their lineal descendants,
and whether, if the Acts created
such a trust, Congress terminated that trust
with the 1980 Act. Id. at 485. The Federal
Circuit granted interlocutory appeal of those
two questions, and reversed this court’s conclusions
in both respects. See Wolfchild v.
United States, 559 F.3d 1228, 1231 (Fed.Cir.
2009) (‘‘Wolfchild VI ’’), cert. denied, ––– U.S.
––––, 130 S.Ct. 2090, 176 L.Ed.2d 755 (2010).
The court of appeals concluded that the
Appropriations Acts did not create a trust for
the benefit of the loyal Mdewakanton nor did
they vest title, legal or otherwise, in that
group, notwithstanding the language and usage
reflected in the land assignments and
certain historical legal memoranda. Wolfchild
VI, 559 F.3d at 1240–41, 1249. It concluded
instead that ‘‘the Appropriations Acts
are best interpreted as merely appropriating
funds subject to a statutory use restriction.’’
Id. at 1240. The court determined as well
that the 1980 Act extinguished any trust that
would have been created by the Appropriations
Acts. Id. at 1259–60. The Federal Circuit
remanded the case to this court to address
one outstanding question: ‘‘whether it
was lawful for the Interior Department, following
the 1980 Act, to transfer to the three
communities approximately $60,000 in funds
that had been collected as proceeds from the
sale, use, or leasing of certain of the 1886
lands, given that the 1980 Act was silent as
to the disposition of those funds.’’ Id. at
1259 n. 14.
On December 21, 2010, in Wolfchild VII,
this court granted partial summary judgment
to plaintiffs respecting entitlement to those
funds derived from the 1886 lands and held
in trust accounts prior to 1981 and 1982. 96
Fed.Cl. at 352. After rejecting both statuteof-
limitations and jurisdictional challenges,
the court concluded that the government acted
without authority and in contravention of
the Appropriations Acts when it distributed
the funds to the three communities as op-
5. A detailed description of the historical genesis
of the three communities and the role they
played in the events of this case is provided in
the court’s immediately prior opinion. See
Wolfchild VII, 96 Fed.Cl. at 318–19. In brief, the
communities are organized as independent entities
under the Indian Reorganization Act, Act of
June 18, 1934, ch. 576, 48 Stat. 984 (also known
as the Wheeler–Howard Act) (codified as amended
at 25 U.S.C. §§ 461–79). Id. ‘‘Although
[some] loyal Mdewakanton [and their descendants]
resided in the three communities, the
three communities were [not] and are not exclusively
comprised of descendants of the loyal Mdewakanton,
and many of the descendants of the
1886 Mdewakantons are not enrolled members
of any of the three communities.’’ Wolfchild VII,
96 Fed.Cl. at 319 (internal quotation marks omitted).
6. Plaintiffs number about 7,500 persons, and 41
separate groups totaling about 13,250 people
were granted leave to intervene as plaintiffs. See
Wolfchild v. United States, 77 Fed.Cl. 22, 31–35
(2007) (‘‘Wolfchild IV ’’).
7. The government’s motion for reconsideration
of this decision was denied in Wolfchild v. United
States, 68 Fed.Cl. 779 (2005) (‘‘Wolfchild II ’’).
The court addressed procedural issues in Wolfchild
v. United States, 72 Fed.Cl. 511 (2006)
(‘‘Wolfchild III ’’), and Wolfchild IV, 77 Fed.Cl.
22.


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posed to the lineal descendants of the loyal
Mdewakanton. See id. at 331–48. The court
concluded that plaintiffs’ entitlement did not
extend, however, to funds traceable to the
Wabasha Land Transfer. See id. at 346.
This was so because the 1944 Act dictating
the transfer of those lands ‘‘provided that the
TTT funds be paid to a broader set of beneficiaries
and conferred upon the Secretary
supplemental authority to distribute those
funds, thus freeing the disbursement of the
Wabasha funds from the statutory restrictions
of the Appropriations Acts.’’ Id.
The court determined as well that the 1980
Act did not terminate plaintiffs’ entitlement
to the funds accrued before that law took
effect because ‘‘the 1980 legislation dealt only
with the 1886 lands, and because such funds
were collected and [were to be] disbursed
pursuant to authority derived by the Secretary
from the Appropriations Acts.’’ Wolfchild
VII, 96 Fed.Cl. at 349. However, because
the 1980 Act created a trust for the three
communities, with the 1886 lands constituting
the trust corpus, the court concluded that
after 1980, but not before, ‘‘the three communities,
not the plaintiffs, would be entitled to
any income derived from those lands because
the communities have become the trust beneficiaries.’’
Id. In sum, the court held that ‘‘as
lineal descendants of the 1886 Mdewakanton,
plaintiffs were entitled to the funds derived
from leasing and licensing [of] the 1886 lands
prior to the passage of the 1980 Act,’’ excluding
those funds traceable to the Wabasha
Land Transfer. Wolfchild VII, 96 Fed.Cl. at
351.
In that same opinion, the court addressed
motions to amend complaints filed by the
Julia DuMarce Group and the Harley D.
Zephier Group of plaintiff-intervenors.
Wolfchild VII, 96 Fed.Cl. at 335–36. Those
motions sought to add claims based upon the
Act of February 16, 1863. The court granted
leave to amend such that the parties could
address ‘‘the salient threshold question TTT
[of] whether the first Act of 1863 can be read
as giving rise to a money-mandating duty
under controlling precedent,’’ a question
which, at that time, none of the parties had
addressed. Id. at 336.
Following a status conference held January
21, 2011, the parties and the court identified
the three remaining issues that were
required to be resolved before the court
could enter final judgment in this case.
Those issues were: (1) the amount of money
involved in the claim delineated in the
Wolfchild VII opinion, (2) the persons who
qualified as proper claimants in this case, and
(3) the role, if any, of the 1863 Acts. See
Scheduling Order, Wolfchild v. United
States, No. 03–2684 (Fed.Cl. Jan. 21, 2011),
ECF No. 843. On March 7, 2011, the parties
stipulated that the funds to which plaintiffs
are entitled pursuant to the court’s opinion in
Wolfchild VII, brought forward to January 1,
2011, are in the amount of $673,944.00. See
Stipulation as to 1886 Funds, Wolfchild v.
United States, No. 03–2684 (Fed.Cl. filed
Apr. 1, 2011), ECF No. 1030. The latter two
issues involving eligible claimants and the
role of the 1863 Acts remain, however, a
source of significant dispute in this case.
Plaintiffs and many plaintiff-intervenors
have filed motions to amend their respective
complaints to incorporate claims based upon
both Acts of 1863 and claims grounded in the
Indian Non–Intercourse Act, 25 U.S.C. § 177
(‘‘Non–Intercourse Act’’). Plaintiffs have
also filed a motion for summary judgment on
the issue of claimant eligibility as to the
stipulated funds, in which motion plaintiffintervenors
have also joined. Attendant to
the issue of claimant eligibility, plaintiffs and
plaintiff-intervenors have submitted extensive
materials relating to their respective
genealogies.
The government opposes plaintiffs’ and
plaintiff-intervenors’ proposed amendments,
arguing that such amendments would be futile.
Def.’s Mem. in Support of Its Motion to
Dismiss (‘‘Def.’s Mem.’’) at 21. The government
additionally has filed a motion to dismiss
or, in the alternative, a cross-motion for
summary judgment, as well as a motion to
defer consideration of eligibility under Rule
56(f) of the Rules of the Court of Federal
Claims (‘‘RCFC’’), which rule has recently
been revised to become Rule 56(d). Among
other things, the government has requested
that the court defer consideration of the facts
submitted by plaintiffs concerning their re-

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spective genealogies until the court resolves
the outstanding issues of generic entitlement.
A hearing was held on the pending motions
on May 13, 2011.
After full briefing of the dispositive motions
had been completed and the hearing
was held, the government raised an entirely
new and significant issue of law in a joint
status report filed May 27, 2011. In that
report, the government contended that the
Indian Tribal Judgment Fund Use or Distribution
Act, Pub.L. No. 93–134, § 1, 87 Stat.
466 (1973) (codified as amended at 25 U.S.C.
§§ 1401–08) (‘‘Indian Judgment Distribution
Act’’), applies to any distribution of funds
that may occur as a result of a final judgment
in this case. On June 3, 2011, the court
requested that the parties file supplemental
briefs addressing the potential applicability
of the Indian Judgment Distribution Act to
this case, and those briefs have been filed.
The pending motions accordingly are ready
for disposition.
I. MOTIONS TO AMEND
COMPLAINTS
A. Applicable Criteria
[2, 3] Under RCFC 15(a)(2), ‘‘[t]he court
should freely give leave [to amend pleadings]
when justice so requires.’’ So long as ‘‘the
underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity
to test his claim on the merits.’’ Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962); see also Mitsui Foods,
Inc. v. United States, 867 F.2d 1401, 1403–04
(Fed.Cir.1989). Although a court ought to
exercise liberally its discretion to grant leave
to amend, ‘‘ ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated
failure to cure deficiencies by amendments
previously allowed, undue prejudice to
the opposing party by virtue of allowance of
the amendment, [or] futility of amendment,’
may justify the denial of a motion for leave to
amend.’’ Mitsui Foods, 867 F.2d at 1403–04
(quoting Foman, 371 U.S. at 182, 83 S.Ct.
227); see also Henry E. & Nancy Horton
Bartels Trust ex rel. Cornell Univ. v. United
States, 88 Fed.Cl. 105, 111 (2009), aff’d, 617
F.3d 1357 (Fed.Cir.2010). Where one of
these adverse factors exists, denial of the
request for leave to amend is appropriate.
See Te–Moak Bands of W. Shoshone Indians
of Nev. v. United States, 948 F.2d 1258, 1261
(Fed.Cir.1991) (affirming Claims Court’s denial
of motion to amend pleadings based on
undue delay and failure to cure in an earlierallowed
amendment); Mitsui Foods, 867
F.2d at 1403–04 (Court of International
Trade’s denial of motion to amend justified
upon ‘‘apparent futility’’); Rockwell Automation,
Inc. v. United States, 70 Fed.Cl. 114,
122–24 (2006) (denial of motion to amend
pleadings due to decade-long delay and prior
opportunities to seek amendment).
[4, 5] Regarding futility, ‘‘ motion to
amend may be deemed futile if a claim added
by the amendment would not withstand a
motion to dismiss.’’ Shoshone Indian Tribe
of the Wind River Reservation, Wyo. v.
United States, 71 Fed.Cl. 172, 176 (2006)
(citing Slovacek v. United States, 40 Fed.Cl.
828, 834 (1998)). In this regard, ‘‘[w]hen a
party faces the possibility of being denied
leave to amend on the ground of futility, that
party must demonstrate that its pleading
states a claim on which relief could be granted,
and it must proffer sufficient facts supporting
the amended pleading that the claim
could survive a dispositive pretrial motion.’’
Kemin Foods, L.C. v. Pigmentos Vegetales
Del Centro S.A. de C.V., 464 F.3d 1339, 1354–
55 (Fed.Cir.2006); see also Cultor Corp. v.
A.E. Staley Mfg. Co., 224 F.3d 1328, 1333
(Fed.Cir.2000) (‘‘[Plaintiff] has not made a
colorable argument of possible successTTTT
Futility was apparent, and is adequate
grounds for the denial of leave to amend.’’);
Webster v. United States, 74 Fed.Cl. 439, 444
(2006) (denying motion to amend where proposed
claims were based upon statute that
did not provide a predicate for jurisdiction).
[6–8] At this juncture, the court must
consider also the standard governing jurisdictional
challenges, as those objections form
the basis of the government’s futility arguments.
‘‘ ‘Jurisdiction is a threshold issue
and a court must satisfy itself that it has
jurisdiction to hear and decide a case before
proceeding to the merits.’ ’’ Ultra–Precision
Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353,

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1356 (Fed.Cir.2003) (quoting PIN/NIP, Inc.
v. Platte Chem. Co., 304 F.3d 1235, 1241
(Fed.Cir.2002)); see also Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 88–89, 118
S.Ct. 1003, 140 L.Ed.2d 210 (1998). When
considering a jurisdictional dispute, the court
draws all reasonable inferences in favor of
the plaintiff and accepts as true the undisputed
allegations in the complaint. De Maio v.
United States, 93 Fed.Cl. 205, 209 (2010)
(citing Hamlet v. United States, 873 F.2d
1414, 1415–16 (Fed.Cir.1989)). Nonetheless,
a plaintiff will not defeat a jurisdictional challenge
by ‘‘rely[ing] merely on allegations in
the complaint, but must instead bring forth
relevant, competent proof to establish jurisdiction.’’
Murphy v. United States, 69 Fed.
Cl. 593, 600 (2006).
[9, 10] Ultimately, it is the plaintiff who
bears the burden of establishing by a preponderance
of the evidence the court’s subject
matter jurisdiction over its claim. See
McNutt v. General Motors Acceptance Corp.
of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80
L.Ed. 1135 (1936); M. Maropakis Carpentry,
Inc. v. United States, 609 F.3d 1323, 1327
(Fed.Cir.2010). ‘‘In establishing the predicate
jurisdictional facts, a court is not restricted
to the face of the pleadings, but may
review evidence extrinsic to the pleadings,
including affidavits and deposition testimony.’’
Cedars–Sinai Med. Ctr. v. Watkins, 11
F.3d 1573, 1584 (Fed.Cir.1993) (citing Land
v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct.
1009, 91 L.Ed. 1209 (1947); Reynolds v.
Army & Air Force Exchange Serv., 846 F.2d
746, 747 (Fed.Cir.1988)).
B. Amendments Based on the Indian
Non–Intercourse Act
[11, 12] The Indian Non–Intercourse Act
provides, in relevant part:
No purchase, grant, lease, or other conveyance
of lands, or of any title or claim
thereto, from any Indian nation or tribe
of Indians, shall be of any validity in law
or equity, unless the same be made by
treaty or convention entered into pursuant
to the Constitution.
25 U.S.C. § 177 (emphasis added).8 The
Non–Intercourse Act ‘‘bars conveyances by
Indians to non-Indians unless made or ratified
by Congress.’’ Seneca Nation of Indians
v. New York, 382 F.3d 245, 248 (2nd
Cir.2004); see also Catawba Indian Tribe of
S. Car. v. United States, 982 F.2d 1564, 1566
(Fed.Cir.1993) (Under the Non–Intercourse
Act, ‘‘transfers of title to Native American
lands re prohibited unless [made] pursuant
to a treaty approved by the United States.’’).
Its purpose is to ‘‘prevent unfair, improvident,
or improper disposition by Indians of
lands owned or possessed by them to other
parties, except the United States, without the
consent of Congress and to enable the [g]overnment,
acting as parens patriae for the
Indians, to vacate any disposition of their
lands made without its consent.’’ Federal
Power Comm’n v. Tuscarora Indian Nation,
362 U.S. 99, 119, 80 S.Ct. 543, 4 L.Ed.2d 584
(1960).
Plaintiffs contend that they have a viable
claim under the Non–Intercourse Act on two
grounds. First, plaintiffs aver that because
Interior has ‘‘never fulfilled its obligations to
set aside a land base for the friendly Sioux
from the former Sioux reservation,’’ it has
contravened the Non–Intercourse Act. Pls.’
Mot. for Summ. Judgment (‘‘Pls.’ Mot.’’) at
17. Plaintiffs’ second claim under the Non–
Intercourse Act is less succinctly stated and
reflects historical facts upon which the parties
do not agree.
The parties concur that in 1865 Reverend
Samuel D. Hinman identified twelve sections
of land in Minnesota to set aside for the
friendly Sioux pursuant to the 1863 Acts. See
Def.’s Mem. at 8; Pls.’ Mot. at 9.9 Plaintiffs
contend those twelve sections of land were
identified at the request of the Secretary and
were set aside for the friendly Sioux, but no
transfers, assignments, nor allotments to individual
Sioux were made due to hostility
8. The current version of the Non–Intercourse Act
was enacted as Section 12 of the Trade and
Intercourse Act of 1834, ch. 161, 4 Stat. 730.
See Mountain States Tel. & Tel. Co. v. Pueblo of
Santa Ana, 472 U.S. 237, 242 n. 9, 105 S.Ct.
2587, 86 L.Ed.2d 168 (1985).
9. Reverend Hinman was a prot´eg´e of Bishop
Henry B. Whipple, a man who had lobbied for
benefits for the friendly Sioux after the uprising.
Pls.’ Mot. at 9.

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from white settlers in the area of those sections.
Pls.’ Mot. at 9; see also Pls.’ Resp. at
1–2. Two years later, the twelve sections of
land, along with all former Sioux reservation
lands, were conveyed through public sale
pursuant to a proclamation by President Andrew
Johnson. Pls.’ Mot. at 9. Plaintiffs aver
that the twelve sections of land, once set
aside, ‘‘remained their tribal, aboriginal
lands.’’ Id. at 23. They argue that the
public sale of those twelve sections constituted
a violation of the Non–Intercourse Act. Id.
at 24.10
The government contends that although
the Secretary approved Reverend Hinman’s
identification of the twelve sections as putative
set asides for the loyal Sioux, those
twelve sections were never actually set aside
and no land grants under the 1863 Acts were
ever made. Def.’s Mem. at 8.11 It argues
that the identification of land for future possible
grants to the friendly Sioux is thus an
insufficient basis for plaintiffs’ claims because
plaintiffs never obtained any vested interests
in those lands. Id. at 51. The government
responds as well that the Non–Intercourse
Act does not apply to actions taken by the
United States, that plaintiffs and plaintiffintervenors
are not a ‘‘tribe’’ within the
meaning of the Act, that the twelve sections
of land were not tribal lands, and that the
Non–Intercourse Act is not a money-mandating
statute upon which to base a claim in this
court. Def.’s Mem. at 44–53. Additionally,
the government asserts that any claims
grounded in the 1863 Acts are barred by the
statute of limitations. Id. at 35. The factual
disputes over the twelve sections of land
need not be resolved because plaintiffs’ claim
based upon the Non–Intercourse Act fails for
other reasons.
[13, 14] In every case brought in federal
court, the plaintiff must establish its standing
to bring suit. See Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct.
2301, 159 L.Ed.2d 98 (2004). The Supreme
Court’s ‘‘standing jurisprudence contains two
strands: Article III standing, which enforces
the Constitution’s case-or-controversy requirement,
see Lujan v. Defenders of Wildlife,
504 U.S. 555, 559–62 [112 S.Ct. 2130, 119
L.Ed.2d 351] (1992); and prudential standing,
which embodies ‘judicially self-imposed
limits on the exercise of federal jurisdiction.’
’’ Elk Grove, 542 U.S. at 11–12, 124
S.Ct. 2301 (quoting Allen v. Wright, 468 U.S.
737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556
(1984)). Prudential standing looks to whether
‘‘the constitutional or statutory provision
on which the claim rests properly can be
understood as granting persons in the plaintiff’s
position a right to judicial relief.’’
Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct.
2197, 45 L.Ed.2d 343 (1975); see also McKinney
v. United States Dep’t of Treasury, 799
F.2d 1544, 1549–51 (Fed.Cir.1986). In other
words, it asks ‘‘whether the interest sought
to be protected by the complainant is arguably
within the zone of interests to be protected
or regulated by the statute or constitutional
guarantee in question.’’ Association
of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d
184 (1970); see also Valley Forge Christian
Coll. v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 475,
102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
[15] As made explicit by the text of the
statute, a fundamental requisite to maintaining
a claim based upon the Non–Intercourse
Act is that the claimants constitute an Indian
tribe (or nation). See 25 U.S.C. § 177 (‘‘from
any Indian nation or tribe of Indians ’’)
(emphasis added); Seneca Nation, 382 F.3d
at 258 (‘‘In order to establish a violation of
the Non–Intercourse Act, [plaintiffs] are required
to establish that: (1) they are an
Indian tribe TTTT’’) (emphasis added); Gold-
10. In related vein, plaintiffs contend that the
public sale of the lands breached the first Act of
1863 because that Act dictated that once the
Secretary set aside the public lands for the
friendly Sioux, the consent of the President was
required to alienate or devise such land. Pls.’
Mot. at 23. This argument fails under plaintiffs’
own version of events because the sale of such
land was premised upon a proclamation by President
Johnson authorizing the sale of all former
Sioux reservation land, of which the twelve sections
were a part.
11. The parties concur that sometime between
1868 and 1869, a further attempt to set aside
land under the 1863 Acts was made but ultimately
those lands were never set aside. Pls.’ Mot. at
9–10; Def.’s Mem. 8–9.

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en Hill Paugussett Tribe of Indians v.
Weicker, 39 F.3d 51, 56 (2d Cir.1994) (same);
Mashpee Tribe v. Secretary of Interior, 820
F.2d 480, 482 (1st Cir.1987) (same). Specifically,
plaintiffs are required to demonstrate
that they ‘‘represent entities that (1) were
tribes at the time the land was alienated and
(2) remain tribes at the time of suit.’’ Mashpee
Tribe, 820 F.2d at 482.
This element is required not only for substantive
relief under the statute, but it is also
a firmly-established requisite for standing to
bring a claim under the Non–Intercourse
Act. See San Xavier Dev. Auth. v. Charles,
237 F.3d 1149, 1152 (9th Cir.2001) (‘‘Only
Indian tribes may bring § 177 actions, and
‘individual Indians do not even have standing
to contest a transfer of tribal lands on the
ground that the transfer violated that statute.’
’’ (quoting United States v. Dann, 873
F.2d 1189, 1195 (9th Cir.1989))); Epps v.
Andrus, 611 F.2d 915, 918 (1st Cir.1979) (‘‘As
the courts have stated repeatedly, claims on
the part of individual Indians or their representative
are not cognizable in federal courts
under the Indian Trade and Non–Intercourse
ActTTTT In short, since plaintiffs are not
suing as a tribe, they do not have standing to
bring this claim TTTT’’) (citations omitted),
overruled on other grounds, James v. Watt,
716 F.2d 71, 74 (1st Cir.1983); Mashpee
Tribe v. New Seabury Corp., 592 F.2d 575,
581 (1st Cir.1979) (‘‘Plaintiff must prove that
it meets the definition of ‘tribe of Indians’ as
that phrase is used in the Non[-I]ntercourse
Act both in order to establish any right to
recovery and to establish standing to bring
this suit.’’); Nahno–Lopez v. Houser, 627
F.Supp.2d 1269, 1277 (W.D.Okla.2009) (‘‘Only
tribes have standing to bring claims under
[the Non–Intercourse Act]; individual Indians
do not have standing under this Act.’’),
aff’d, 625 F.3d 1279 (10th Cir.2010); State of
N.J. v. City of Wildwood, 22 F.Supp.2d 395,
404 (D.N.J.1998) (‘‘Only the Tribe has standing
to vindicate its rights under the Non–
Intercourse ActTTTT’’); Canadian St. Regis
Band of Mohawk Indians v. State of N.Y.,
573 F.Supp. 1530, 1534–37 (N.D.N.Y.1983)
(discussing in detail tribal status as an element
of standing under the Non–Intercourse
Act).
[16] Just as Article III standing is a
‘‘threshold jurisdictional issue,’’ Southern
Calif. Fed. Sav. & Loan Ass’n v. United
States, 422 F.3d 1319, 1328 (Fed.Cir.2005),
the ‘‘prudential standing doctrine[ ] represents
the sort of ‘threshold question’ TTT
[that] may be resolved before addressing jurisdiction.’’
Tenet v. Doe, 544 U.S. 1, 6 n. 4,
125 S.Ct. 1230, 161 L.Ed.2d 82 (2005); see
also Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 584–85, 119 S.Ct. 1563, 143 L.Ed.2d
760 (1999) (‘‘While Steele [Steel ] Co. reasoned
that subject matter jurisdiction necessarily
precedes a ruling on the merits, the
same principle does not dictate a sequencing
of jurisdictional issuesTTTT It is hardly novel
for a federal court to choose among threshold
grounds for denying audience to a case on
the merits.’’); Warth, 422 U.S. at 517–18, 95
S.Ct. 2197 (‘‘The rules of standing, whether
as aspects of the Art[icle] III case-or-controversy
requirement or as reflections of prudential
considerations defining and limiting
the role of courts, are threshold determinants
of the propriety of judicial intervention.’’)
(emphasis added); The Wilderness
Soc. v. Kane Cnty., Utah, 632 F.3d 1162, 1168
(10th Cir.2011) (en banc) (‘‘Because [plaintiff]
lacks prudential standing, we proceed directly
to that issue without deciding whether
[plaintiff] has constitutional standing or
whether the case is moot.’’).
This case has proceeded for the past eight
years on the foundational finding by this
court that plaintiffs are not a tribe but that
they could bring a suit under the Indian
Tucker Act because they are an identifiable
group of American Indians residing with the
territorial limits of the United States. In its
first opinion in this case, the court stated
unequivocally: ‘‘The lineal descendants are
unable to sue as a tribe because they necessarily
had to sever their tribal relations prior
to 1886 to qualify as beneficiaries of the 1888,
1889, and 1890 Acts, but they were and still
remain an identifiable group of American
Indians.’’ Wolfchild I, 62 Fed.Cl. at 540; see
also Wolfchild VII, 96 Fed.Cl. at 338 (‘‘The
loyal Mdewakanton are an ‘identifiable group
of American Indians’ within the meaning of
the [Indian Tucker] Act.’’). Indeed, in their
most recent filing, plaintiffs go even further
and avow that ‘‘the [c]ourt’s forthcoming final

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judgment will be in favor of individuals—
not in favor of a group.’’ Pls.’ Supplemental
Br. at 2 (emphasis added).
Notwithstanding the long-established conclusions
of this court and plaintiffs’ own representations,
plaintiffs contend that the Appropriations
Acts’ identification of loyal
Mdewakanton as statutory beneficiaries recognized
that group as a ‘‘tribe.’’ Pls.’ Mot.
at 25. They further represent that the loyal
Mdewakanton are ‘‘a federally[-]recognized
group of Indians as a result of the 1886
enrollment and supplement.’’ Pls.’ Resp.
and Reply at 14. Plaintiffs assert additionally
that ‘‘the ‘friendly Sioux’ identified in
the 1863 Acts were TTT a ‘tribe’ for the
purposes of the Non[-]Intercourse Act,’’ and
that because plaintiffs are the beneficiaries
of the Appropriations Acts, plaintiffs are the
successors in interest to any claims the
friendly Sioux would have under the Non–
Intercourse Act. Pls.’ Mot. at 21, 27–28.
The Non–Intercourse Act does not provide
a definition of the term ‘‘tribe.’’ In United
States v. Candelaria, 271 U.S. 432, 442, 46
S.Ct. 561, 70 L.Ed. 1023 (1926), however, the
Supreme Court interpreted ‘‘tribe’’ for purposes
of the Non–Intercourse Act as being
‘‘ ‘a body of Indians of the same or a similar
race, united in a community under one leadership
or government, and inhabiting a particular,
though sometimes ill-defined, territory.’
’’ (quoting Montoya v. United States, 180
U.S. 261, 266, 21 S.Ct. 358, 45 L.Ed. 521
(1901)) (the ‘‘Montoya/Candelaria definition’’);
see also Golden Hill, 39 F.3d at 59
(adopting and applying the Montoya/Candelaria
definition); 12 Joint Tribal Council of
the Passamaquoddy Tribe v. Morton, 528
F.2d 370, 377 n. 8 (1st Cir.1975) (same);
Narragansett Tribe of Indians v. Southern
R.I. Land Dev. Corp., 418 F.Supp. 798, 807 n.
8 (D.R.I.1976) (same). Although a group of
Indians may constitute a ‘‘tribe’’ for the purposes
of the Non–Intercourse Act without
being a tribe formally recognized by the federal
government, Golden Hill, 39 F.3d at 59,
courts have looked as well to the BIA regulations
governing federal recognition for further
guidance on the meaning of ‘‘tribe’’ within
the Non–Intercourse Act. See id. (noting
that BIA regulations require that: ‘‘(a) they
have been identified since 1900 as ‘American
Indian’ or ‘aboriginal’ on a substantially continuous
basis, (b) a predominant portion of
their group comprises a distinct community
and has existed as such from historical times
to the present, and, (c) they have maintained
tribal political influence or authority over its
members as an autonomous entity throughout
history until the present’’). Importantly,
‘‘[t]he Montoya/Candelaria definition and the
BIA criteria both have anthropological, political,
geographical and cultural bases and require,
at a minimum, a community with a
political structure.’’ Id. (emphasis added).
[17] There has been no evidence put
forth that plaintiffs are a tribe within the
meaning of this definition. The sole documents
upon which plaintiffs rely to establish
their status are the birth certificates which
have been submitted in support of plaintiffs’
eligibility as claimants under the Appropriations
Acts. See Pls.’ Resp. and Reply at 16
(‘‘Plaintiffs’ birth certificates collected by anthropologist
Dr. Barbara Buttes[ ] indicate
anthropological, political, [and] geographical
TTT ties.’’). While those birth certificates
demonstrate, as an incidental matter, that
individual loyal Mdewakanton and their descendants
share anthropological or geographical
connections through familial unions, they
are insufficient to show that plaintiffs constituted
in the past or constitute now a united
community, existing and living under one
leadership or government and inhabiting a
particular territory. Indeed, plaintiffs do not
even allege those pertinent facts to be true;
their claim is based upon severance, not continuation,
of tribal ties.
Reference to a case in which a group of
non-federally-recognized Indians was deemed
a ‘‘tribe’’ in accord with the Montoya/Candelaria
definition is instructive. In New York
v. Shinnethingy Indian Nation, 400 F.Supp.2d
486 (E.D.N.Y.2005), New York sued to enjoin
12. Notably, in Golden Hill, the Second Circuit
remanded the matter to the district court on the
basis of the primary jurisdiction doctrine, concluding
that a stay of plaintiff’s action was appropriate
to allow the Department of the Interior
to rule on plaintiff’s pending petition for tribal
recognition. 39 F.3d at 58–61.

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the construction and operation of a gaming
casino by the Shinnethingy. In determining
whether the Shinnethingy constituted a ‘‘tribe’’
and were thus entitled to invoke its sovereign
immunity against such suit, the court employed
the Montoya/Candelaria definition
and concluded that the Shinnethingy were a
tribe. The court’s determination was based
upon, among other things, that: (1) the Shinnethingy
had been recognized as a tribe by
New York for more than 200 years; (2) the
tribe had offices and was located on a reservation,
(3) tribal officials were the plaintiffs
and were suing in their official capacity, and
(4) the tribe had selected or elected tribal
leaders in every year from 1792 through
2004. Id. at 487–90.13
Plaintiffs’ reliance on the formation of the
Minnesota Mdewakanton Dakota Oyate
(‘‘Mdewakanton Oyate’’) is unavailing. Plaintiffs
established the Mdewakanton Oyate on
March 26, 2004, subsequent to the initiation
of this lawsuit. Pls.’ Mot. and Br. Regarding
Notice to Lineal Descendants at 8, Wolfchild
v. United States, No. 03–2684 (Fed.Cl. filed
March 21, 2005). That association was
formed as ‘‘a Minnesota non-profit corporation
TTT for the purpose of organizing the
trust beneficiaries for business purposes.’’
Id. At a minimum, existence of the Mdewakanton
Oyate fails to satisfy the requirement
under the Non–Intercourse Act that plaintiffs
constitute a tribe at the time of the
allegedly unlawful sale of land and at the
time of the initiation of suit. See Mashpee
Tribe, 820 F.2d at 482; see also Abraxis
Bioscience, Inc. v. Navinta LLC, 625 F.3d
1359, 1364 (Fed.Cir.2010) (‘‘A court may exercise
jurisdiction only if a plaintiff has
standing to sue on the date it files suit.’’
(citing Keene Corp. v. United States, 508 U.S.
200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118
(1993); Minneapolis & St. Louis R.R. v.
Peoria & Perkin Union Ry. Co., 270 U.S.
580, 586, 46 S.Ct. 402, 70 L.Ed. 743 (1926))).
What is more, the Mdewakanton Oyate has
never been and is not now a plaintiff in this
lawsuit. See Wolfchild Pls.’ Objections &
Admissions to United States’ Proposed Findings
of Uncontroverted Fact at 2, Wolfchild
v. United States, No. 03–2684 (Fed.Cl. filed
May 4, 2011), ECF No. 1047.
In sum, the court concludes that plaintiffs
are not a ‘‘tribe’’ within the meaning of the
Non–Intercourse Act. Plaintiffs thus lack
standing to bring a suit grounded in that
Act.14
C. Amendments Based upon the 1863 Acts
Plaintiffs seek to amend their complaints
to allege that plaintiffs were statutorily entitled
to the benefits of the 1863 Acts, and that
the 1863 Acts created a ‘‘fiduciary (trust)
relationship’’ between the government and
plaintiffs under which the government was
required ‘‘to provide land to the group of
‘friendly Sioux’ as statutory beneficiaries.’’
Pls.’ Proposed Seventh Am. Compl. ¶¶ 117,
119. This proposed amendment would echo
the amendments previously made to the complaints
of the Julia DuMarce and Harley
Zephier groups of intervening plaintiffs. See
Wolfchild VII, 96 Fed.Cl. at 335–36. Other
13. In support of their contentions, plaintiffs cite
to Joint Tribal Council of Passamaquoddy Tribe v.
Morton, 388 F.Supp. 649 (D.Me.1975), aff’d, 528
F.2d 370, and Narragansett Tribe, 418 F.Supp.
798, in which, according to plaintiffs, the court
recognized as a ‘‘tribe’’ under the Non–Intercourse
Act similarly placed ‘‘landless Indian
groups [that had] enrolled people into their purported
tribe via genealogical qualification per
birth certificates and similar documents.’’ Pls.’
Mot. at 27. Yet, those cases did nothing of the
sort. In Passamaquoddy, ‘‘it [wa]s stipulated
that the Passamaquoddies are a ‘tribe of Indians,’
’’ 388 F.Supp. at 656, and in Narragansett
Tribe, that issue was explicitly reserved for trial,
418 F.Supp. at 807 n. 8, 808. And far from
being ‘‘landless Indian groups’’ that were then
enrolling members via birth certificates, the
named plaintiff in Passamaquoddy was ‘‘the official
governing body of the Passamaquoddy Tribe,
a tribe of Indians residing on two reservations in
the State of Maine TTT [that] since at least 1776
TTT have constituted and continue to constitute a
tribe of Indians in the racial and cultural sense.’’
388 F.Supp. at 651–52.
14. Plaintiffs’ argument that the ‘‘friendly Sioux’’
identified in the 1863 Acts were a ‘‘tribe’’ and
that plaintiffs have inherited those claims, Pls.’
Mot. at 21, 22–28, is equally unavailing. No
evidence before the court shows that the ‘‘friendly
Sioux’’ constituted either in 1863 or now a
distinct ‘‘tribe,’’ and Congress’ reference in the
1863 Acts to ‘‘each individual of the [four Bands
of Sioux Indians] who exerted himself in rescuing
the whites,’’ see, e.g., Act of Feb. 16, 1863, ch.
37, § 9, 12 Stat. at 654, demonstrates that Congress
recognized in the 1863 Acts individual
Sioux Indians—not a separate tribal entity.

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groups of intervening plaintiffs now join
plaintiffs in moving for comparable amendments.
See, e.g., Taylor Group’s Proposed
Third Am. Compl. ¶¶ 117–138, Wolfchild v.
United States, No. 03–2684 (Fed.Cl. filed
March 21, 2011), ECF No. 947. The government
contends that plaintiffs’ requests must
be denied because the 1863 Acts are not
money-mandating statutes upon which jurisdiction
in this court can be founded nor do
they impose fiduciary duties on the government.
See Def.’s Mem. at 24–28. The government
argues also that any such claims are
barred by the statute of limitations. Id. at
35–39.
1. Money-mandating duty.
[18] It is axiomatic that ‘‘[t]he United
States, as sovereign, is immune from suit
save as it consents to be sued TTT, and the
terms of its consent to be sued in any court
define that court’s jurisdiction to entertain
the suit.’’ United States v. Mitchell, 445
U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607
(1980) (‘‘Mitchell I ’’). Congress has consented
to suit by way of the Indian Tucker Act,
28 U.S.C. § 1505, which provides:
The United States Court of Federal
Claims shall have jurisdiction of any claim
against the United States accruing after
August 13, 1946, in favor of any tribe,
band, or other identifiable group of American
Indians residing within the territorial
limits of the United States or Alaska whenever
such claim is one arising under the
Constitution, laws or treaties of the United
States, or Executive orders of the President,
or is one which otherwise would be
cognizable in the Court of Federal Claims
if the claimant were not an Indian tribe,
band, or group.
[19–22] The Indian Tucker Act provides
a jurisdictional platform for suit but does not
itself ‘‘create[ ] a substantive right enforceable
against the [g]overnment by a claim for
money damages.’’ United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472,
123 S.Ct. 1126, 155 L.Ed.2d 40 (2003). As
with the Tucker Act, a plaintiff grounding its
claim in the Indian Tucker Act must demonstrate
that some other source of law creates
a money-mandating right or duty that falls
within the ambit of the waiver of sovereign
immunity. See United States v. Navajo Nation,
556 U.S. 287, 288-90, 129 S.Ct. 1547,
1551–52, 173 L.Ed.2d 429 (2009) (‘‘Navajo
II ’’); see also Fisher v. United States, 402
F.3d 1167, 1172 (Fed.Cir.2005) (en banc).
Where plaintiff alleges that a statute provides
such a right or duty, ‘‘the statute
[must] be ‘fairly interpreted’ or ‘reasonably
amen[ ]able’ to the interpretation that it
‘mandates a right of recovery in damages.’ ’’
Adair v. United States, 497 F.3d 1244, 1250
(Fed.Cir.2007) (quoting White Mountain
Apache, 537 U.S. at 472–73, 123 S.Ct. 1126).
If the court determines that the statute upon
which plaintiff relies does not impose upon
the government a duty which gives rise to a
claim for money damages, then the court
lacks subject matter jurisdiction over the
claim. Adair, 497 F.3d at 1251 (citing Fisher,
402 F.3d at 1173); see also Greenlee
Cnty., Ariz. v. United States, 487 F.3d 871,
876 (Fed.Cir.2007); Perri v. United States,
340 F.3d 1337, 1340–41 (Fed.Cir.2003).
To determine whether the two Acts of 1863
provide the money-mandating duty needed to
invoke this court’s jurisdiction, the court
must look first to the text of the Acts. See
Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881
(1999); see also Sursely v. Peake, 551 F.3d
1351, 1355 (Fed.Cir.2009). ‘‘[W]here the
statutory text leaves the government no discretion
over payment of claimed funds,’’ Congress
has provided a money-mandating
source of law for jurisdiction in this court.
Samish Indian Nation v. United States, 419
F.3d 1355, 1364 (Fed.Cir.2005). Where, however,
the statute ‘‘gives the government complete
discretion over the decision whether or
not to pay an individual or group,’’ the statute
is not money-mandating. Doe v. United
States, 463 F.3d 1314, 1324 (Fed.Cir.2006);
see also Hopi Tribe v. United States, 55
Fed.Cl. 81, 86–87 (2002); Lewis v. United
States, 32 Fed.Cl. 59, 63 (1994). In this
regard, a distinction lies between those statutes
which employ mandatory language such
as ‘‘shall’’ and those that use permissive language
such as ‘‘may’’ or similar terms. Compare
Greenlee Cnty., 487 F.3d at 877 (Payment
in Lieu of Taxes Act, 31 U.S.C.
§§ 6901–07, was money-mandating where

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pertinent provision stated that Secretary of
Interior ‘‘shall make a payment’’ to the local
government), and Agwiak v. United States,
347 F.3d 1375, 1380 (Fed.Cir.2003) (5 U.S.C.
§ 5942(a) was money-mandating where it
provided that employees were ‘‘entitled’’ to
certain pay and such funds ‘‘shall be paid
under regulations prescribed by the President’’),
with Perri, 340 F.3d at 1341 (Fed.Cir.
2003) (28 U.S.C. § 542 was ‘‘money-authorizing
statute, not a money-mandating one,’’
where statute established the Department of
Justice Assets Forfeiture Fund and provided
that funds for the payment of certain awards
‘‘shall be available to the Attorney General’’);
and Hopi Tribe, 55 Fed.Cl. at 87–92 (25
U.S.C. § 640d–7(e) was not money-mandating
where the pertinent provision stated
‘‘[t]he Secretary of Interior is authorized’’ to
pay the legal fees of certain tribes).
[23] The first Act of 1863 provided that
the Secretary was ‘‘authorized’’ to set apart
eighty acres of land to any friendly Sioux.
Act of Feb. 16, 1863, § 9, 12 Stat. at 654.
The statutory sentence which follows governs
the disposition of such lands once they are
set apart for an individual Indian. Id. Similarly,
the relevant language of the second Act
of 1863 stated that ‘‘t shall be lawful for the
Secretary’’ to assign to the individual friendly
Sioux eighty acres of land. Act of March 3,
1963 § 4, 12 Stat. at 819. The plain language
of the Acts reveals that the legislation only
permits—not mandates—the Secretary to
provide the lands to individual qualified
Sioux. Merely ‘‘authorizing’’ or, in even
more discretionary terms, making it ‘‘lawful’’
for the Secretary to commit certain lands to
friendly Sioux is identical to or even more
permissive in character than the legislation
at issue in Perri and Hopi Tribe. Plaintiffs
contend, however, that even if the statutory
text is facially discretionary, that presumption
is rebutted by the legislative history and
the structure of the Acts. See Pls.’ Mot. at
35–36; Pls.’ Resp. and Reply at 22–25, 28.
[24] The Federal Circuit has indeed acknowledged
that ‘‘[c]ertain discretionary
[statutory] schemes also support claims within
the Court of Federal Claims’ jurisdiction.’’
Samish, 419 F.3d at 1364. While discretionary
terms may trigger the presumption that
the statute is not money-mandating, that presumption
can be overcome by ‘‘ ‘the intent of
Congress and other inferences that [the
court] may rationally draw from the structure
and purpose of the statute at hand.’ ’’
Doe, 463 F.3d at 1324 (quoting McBryde v.
United States, 299 F.3d 1357, 1362 (Fed.Cir.
2002)); see also Doe v. United States, 100
F.3d 1576, 1579–82 (Fed.Cir.1996). In this
regard, the Federal Circuit has stated: ‘‘
statute is not wholly discretionary, even if it
uses the word ‘may’ when an analysis of
congressional intent or the structure and
purpose of the statute reveal one of the
following: (1) the statute has ‘clear standards
for paying’ money to recipients, (2) the statute
specifies ‘precise amounts’ to be paid, or
(3) the statute compels payment once certain
conditions precedent are met.’’ Doe, 463
F.3d at 1324 (citing Samish, 419 F.3d at
1364–65).
Plaintiffs contend that the language of the
1863 Acts meets these requirements because
the 1863 Acts specifically delineate the class
of persons to whom the Secretary could
grant the land, specify the precise amount of
land (eighty acres), and require the Secretary
to make that acreage available for each
individual Indian who met the criterion of
having exerted themselves to save the settlers
during the revolt. Pls.’ Resp. and Reply
at 25. Plaintiffs’ proffered analysis nonetheless
fails to address the circumstance that
the plain terms of the 1863 Acts do not
‘‘compel[ ] payment once certain conditions
are met.’’ Doe, 463 F.3d at 1324. The
strongly discretionary language of the Acts
constitutes an impediment to plaintiffs’
claims.
Plaintiffs argue also that the legislative
history espouses a mandatory intent contrary
to the discretionary language of the statute.
Pls.’ Resp. and Reply at 28. In this vein,
plaintiffs point to two statements made by
Senators prior to the passage of the first Act
of 1863. The first statement, by Senator
Fessenden, provides:
I have referred to the last section of the
bill simply to show in what way the committee
[of Indian Affairs] propose to
take care of these friendly Indians. They
propose to direct the Secretary of the Inte-

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rior to set apart for each of them one
hundred and sixty acres of the public
landTTTT
Cong. Globe, 37th Cong., 3d Sess. 511 (1863).
The second statement, by Senator Harlan,
reads:
I think the provision is well enough as it is.
I think we should reward Indians, who,
under the circumstances that surrounded
this case, exerted themselves to protect
white inhabitants. This was the opinion of
the committee. This was the opinion of
the committee—or of several members of
the committee, I know—that they ought to
be rewarded, ought to be distinguished
from other IndiansTTTT 15
Cong. Globe, 37th Cong., 3d Sess. 514 (1863);
see Pls.’ Mot. at 28.
The first sentence of Senator Fessenden’s
statement establishes that the purpose of the
pertinent section of the first Act of 1863 was
indeed to care for the friendly Sioux but does
not speak to the force of the direction to the
Secretary of the Interior. His further observation
that the relevant section ‘‘propose
to direct the Secretary’’ could touch on that
issue, but it does not explicitly do so, and
even if it did, one remark by one Senator is
inadequate to overcome the unambiguous,
plainly discretionary terms ultimately passed
by the entire Congress. Senator Harlan’s
statement is even more equivocal, illuminating
only his personal opinion that the Indians
‘‘ought to be rewarded’’ (emphasis added),
but providing no evidence that Congress believed
it was enacting a mandate rather than
an authorization and direction to the Secretary
to provide for the friendly Sioux. In
this vein, the legislative history merely repeats
the discretionary language of the statute.
See New England Tank Indus. of N.H.
v. United States, 861 F.2d 685, 694 (Fed.Cir.
1988) (‘‘Will’’ and ‘‘will not’’ are ‘‘mandatory
terms’’ as contrasted to ‘‘directory terms’’
such as ‘‘should.’’); Cybertech Grp., Inc. v.
United States, 48 Fed.Cl. 638, 649 (2001)
(‘‘n everyday discourse, ‘shall’ is used to
denote an affirmative command or obligation
whereas ‘should,’ by contrast, is used to denote
a request or suggestion.’’).
In short, there is nothing within the legislative
history or the structure of the statutes
that demonstrates a congressional intent
clearly and expressly contrary to the patently
discretionary terms ultimately adopted in
the text of the Acts. The court thus concludes
that the 1863 Acts cannot be read as imposing
a specific money-mandating duty upon
the government.
2. Fiduciary duty.
Apart from plaintiffs’ contention that the
1863 Acts impose upon the Secretary a money-
mandating duty to provide eighty acres of
land to plaintiffs, plaintiffs argue also that a
‘‘trust relationship [was] created under the
TTT 1863 Acts TTT [which] continues to this
day.’’ Pls.’ Mot. at 18. The government
responds that ‘‘[t]he United States has no
[f]iduciary [d]uty to

laintiffs because the
1863 Acts did not create a [t]rust.’’ Def.’s
Mem. at 28.
[25, 26] A statute, or confluence of statutes
and regulations, can create a ‘‘fiduciary
duty [on the part of the government which]
can also give rise to a claim for damages
within the Tucker Act or Indian Tucker Act.’’
Samish, 419 F.3d at 1367 (citing White
Mountain Apache, 537 U.S. at 473–74, 123
S.Ct. 1126; United States v. Mitchell, 463
U.S. 206, 224–26, 103 S.Ct. 2961, 77 L.Ed.2d
580 (1983) (‘‘Mitchell II ’’)). Recently, in
United States v. Jicarilla Apache Nation,
the Supreme Court explained further that
‘‘n some cases, Congress establishe only
a limited trust relationship to serve a narrow
purpose.’’ ––– U.S. ––––, ––––, 131 S.Ct.
2313, 2324–25, 180 L.Ed.2d 187 (2011) (citing
Mitchell I, 445 U.S. at 544, 100 S.Ct. 1349;
United States v. Navajo Nation, 537 U.S.
488, 507–08, 123 S.Ct. 1079, 155 L.Ed.2d 60
(2003) (‘‘Navajo I ’’)). In other circumstances,
Congress can establish full fiduciary
obligations on the part of the government.
Jicarilla Apache, 131 S.Ct. at 2325 (citing
Mitchell II, 463 U.S. at 226, 103 S.Ct. 2961;
White Mountain Apache, 537 U.S. at 475,
15. Senator Harlan’s statement was made in response
to another Senator’s suggestion that the
acreage of the potential land grants be reduced
from one hundred sixty acres, as provided in the
bill then under consideration, to forty acres.
Cong. Globe, 37th Cong., 3d Sess. 513–14 (1863).

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123 S.Ct. 1126). Full fiduciary obligations,
however, are applicable only ‘‘f a plaintiff
identifies TTT a [specific rights-creating or
duty-imposing statutory or regulatory prescription],
and if that prescription bears the
hallmarks of a ‘conventional fiduciary relationship.’
’’ Navajo II, 129 S.Ct. at 1558
(internal quotation omitted).16
Thus, in Mitchell II, a fiduciary relationship
was found where the Secretary held a
‘‘pervasive role in the sales of timber from
Indian lands TTT [since] 1910,’’ and numerous,
detailed pieces of legislation had been
passed and extensive regulations promulgated
that governed the Secretary’s duty to
manage and protect the timber lands and
imposed upon the Secretary ‘‘full responsibility
to manage Indian resources and land for
the benefit of the Indians.’’ 463 U.S. at 219–
24, 103 S.Ct. 2961. Similarly, in White
Mountain Apache, the Secretary was required
by law to hold the plaintiffs’ property
‘‘in trust’’ and the government ‘‘ha[d] not
merely exercised daily supervision but ha[d]
enjoyed daily occupation, and so ha[d] obtained
control at least as plenary as its authority
over the timber in Mitchell II.’’ 537
U.S. at 475, 123 S.Ct. 1126.
[27] In this case, plaintiffs aver that two
entirely discretionary statutes—which were
never implemented—established a trust relationship
between plaintiffs and the government.
Far from the type of specific dutyimposing
prescriptions and ongoing fiduciary
relations present in Mitchell II and White
Mountain Apache, the 1863 Acts are directory
propositions to the Secretary which did
not and do not impose upon the Secretary
any specific fiduciary obligations that would
create a trust relationship between the
friendly Sioux and the government.
In sum, the court finds that the 1863 Acts
do not establish a trust relationship or impose
fiduciary duties upon the government.17
D. Amendment Based upon
an Alleged Taking
The Robertson–Vadnais Group of plaintiffintervenors
seeks leave to amend its complaint
to allege a taking in contravention of
the Fifth Amendment. First, they contend
that ‘‘the United States effected a 5th
Amendment ‘taking’ by failing to provide
‘eighty acres in severalty to each individual
[Mdewakanton] TTT who exerted himself in
rescuing the whites’ from the 1862 prising’’
pursuant to the first Act of 1863. Robertson–
Vadnais Seventh Amend. Compl.
¶ 225 (ECF No. 929). Second, they allege
that the United States effected a taking of
their property interest in the twelve sections
of land identified in 1865 through the public
sale of that land in 1867. Robertson–Vadnais
Mem. in Support of Partial Summ. J. (‘‘Robertson–
Vadnais Mem.’’) at 33 (ECF No.
1001). The government responds that any
such alleged takings claims ‘‘first accrued
more than six years before [plaintiff-intervenors]
filed their complaint and the claim is
thus [time-]barred.’’ Def.’s Mem. at 54. Additionally,
the government avers that the
plaintiff-intervenors do not ‘‘possess compensable
property interest arising from the
February 1863 Act,’’ and that the government’s
failure to provide land cannot form
the basis of a legally cognizable takings
claim. Id. at 58.
[28] Fifth Amendment takings claims are
within the jurisdiction of this court under the
Tucker Act, 28 U.S.C. § 1491, Boling v.
United States, 220 F.3d 1365, 1370 (Fed.Cir.
2000), and thus also under the Indian Tucker
Act. However, suits against the United
States brought in this court under these Acts
16. In Navajo II, the Court explained in more
detail the requisites a plaintiff must satisfy to
establish jurisdiction under the Indian Tucker
Act. First, the plaintiff ‘‘must identify a substantive
source of law that establishes specific fiduciary
or other duties, and allege that the [g]overnment
has failed faithfully to perform those
duties.’’ 129 S.Ct. at 1552 (internal quotation
marks and citation omitted). If the plaintiff
overcomes that first hurdle, ‘‘the court must then
determine whether the relevant source of substantive
law can fairly be interpreted as mandating
compensation for damages sustained as a
result of a breach of the duties [the governing
law] impose.’’ Id. (internal quotation marks
and citation omitted).
17. For these reasons, the court finds unpersuasive
the DuMarce Group of plaintiff-intervenors’
contention that the 1863 Acts serve as enabling
acts which create a trust relationship in conjunction
with the Appropriations Acts. DuMarce
Fourth Amend. Compl. ¶ 42 (ECF No. 930).

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must be filed within six years after accrual of
the cause of action. 28 U.S.C. § 2501. Because
this statute of limitations circumscribes
the scope of the government’s waiver of sovereign
immunity, it is ‘‘jurisdictional’’ in nature.
See John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133–34, 128
S.Ct. 750, 169 L.Ed.2d 591 (2008); Hopland
Band of Pomo Indians v. United States, 855
F.2d 1573, 1576–77 (Fed.Cir.1988). Accordingly,
the limitations period is not subject to
equitable tolling or implied exceptions. See
John R. Sand, 552 U.S. at 133–34, 128 S.Ct.
750. Plaintiff-intervenors must meet this jurisdictional
burden by demonstrating by a
preponderance of the evidence that their
claim was timely filed. See Taylor v. United
States, 303 F.3d 1357, 1359 (Fed.Cir.2002).
[29–32] ‘‘A claim accrues ‘when all the
events have occurred which fix the liability of
the [g]overnment and entitle the claimant to
institute an action.’ ’’ Goodrich v. United
States, 434 F.3d 1329, 1333 (Fed.Cir.2006)
(quoting Hopland Band, 855 F.2d at 1577).
In the context of the Fifth Amendment, ‘‘the
key date for accrual purposes is the date on
which the plaintiff’s land has been clearly
and permanently taken.’’ Boling, 220 F.3d
at 1370; Goodrich, 434 F.3d at 1333 (A Fifth
Amendment claim accrues ‘‘ ‘when th[e] taking
action occurs.’ ’’ (quoting Alliance of Descendants
of Tex. Land Grants v. United
States, 37 F.3d 1478, 1481 (Fed.Cir.1994))).
In this regard, the ‘‘proper focus, for statute
of limitations purposes, ‘is upon the time of
the [government’s] acts, not upon the time at
which the consequences of the acts became
most painful.’ ’’ Fallini v. United States, 56
F.3d 1378, 1383 (Fed.Cir.1995) (quoting Delaware
State Coll. v. Ricks, 449 U.S. 250, 258,
101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). However,
‘‘the claim only accrues if the claimant
‘knew or should have known’ that the claim
existed.’’ Goodrich, 434 F.3d at 1333 (quoting
Kinsey v. United States, 852 F.2d 556,
557 n. * (Fed.Cir.1988)).
[33] Plaintiff-intervenors’ contention
based upon the government’s failure to provide
land matured in 1867—the year in which
plaintiff-intervenors contend the United
States began to fail to provide lands under
the Act. Robertson–Vadnais Mem. at 34
(‘‘The United States, since the 1867 original
taking, continues to hold the Mdewakanton
‘inheritable beneficial interest,’ constituting a
continuing taking, by withholding Plaintiff[-
Intervenors’] cognizable property interests
under the February 1863 Act without just
cause of reason.’’) (emphasis added).
Likewise, plaintiff-intervenors’ second takings
claim, based upon the twelve sections of
land, accrued in 1867. It was in that year
that the land was authorized to be publicly
sold by President Johnson’s proclamation.
See, e.g., Alliance of Descendants, 37 F.3d at
1482 (takings claim, which alleged taking of a
cause of action for land, accrued with passage
of treaty releasing United States from all
claims regarding such land). At the very
latest, the takings claim would have accrued
upon the government’s actual sale of the land
and issuance of land patents to the buyers of
the twelve sections of land. See Voisin v.
United States, 80 Fed.Cl. 164, 170–71 (2008)
(government’s issuance of land patents for
plaintiffs’ land and subsequent sale of land
pursuant to legislation marked date of accrual
of takings claim). Plaintiffs have provided
evidence that those sales took place between
1871 and 1895. See Pls.’ Mem. at 9 n. 31
(citing Pls.’ App. 287–330 (Redwood and Renville
City Land Patents, 1871–95)).
Thus, in 1867, or, construed most generously,
by 1895, plaintiff-intervenors’ alleged
property interests in a land expectancy under
the 1863 Acts had been taken. See
Fallini, 56 F.3d at 1380 (‘‘The question
whether the pertinent events have occurred
is determined under an objective standard; a
plaintiff does not have to possess actual
knowledge of all the relevant facts in order
for the cause of action to accrue.’’). Accordingly,
the filing of the complaint in this case
on November 18, 2003, falls far outside of the
six-year statute of limitations.
Nevertheless, plaintiff-intervenors ‘‘join in
the Wolfchild

laintiffs’ TTT arguments in
support of their claim that the TTT statute of
limitations TTT is inapplicable.’’ Robertson–
Vadnais Mem. at 37.18 Plaintiffs’ statute-of-
18. Plaintiff-intervenors state also that the takings claim is not untimely under 28 U.S.C. § 2415


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limitations arguments rely on: (1) the continuing
claims doctrine; (2) the Indian Trust
Accounting Statute, Pub.L. No. 108–108, 117
Stat. 1241, 1263 (2003); and (3) the provision
of 28 U.S.C. § 2501 allowing for the tolling of
the limitations period for persons under legal
disability. Pls.’ Mem. at 36–39.
[34, 35] The continuing claims doctrine
applies ‘‘where a plaintiff’s claim is ‘inherently
susceptible to being broken down into a
series of independent and distinct events or
wrongs, each having its own associated damages.’
’’ Tamerlane, Ltd. v. United States,
550 F.3d 1135, 1145 (Fed.Cir.2008) (quoting
Brown Park Estates–Fairfield Dev. Co. v.
United States, 127 F.3d 1449, 1456 (Fed.Cir.
1997)). The doctrine does not apply, however,
where ‘‘a single governmental action
causes a series of deleterious effects, even
though those effects may extend long after
the initial governmental breach.’’ Boling,
220 F.3d at 1373.
[36] Plaintiff-intervenors’ takings claims
do not fall within the ambit of the continuing
claims doctrine. The purported takings were
accomplished by governmental action—and,
in plaintiff-intervenors’ view, inaction—during
the Nineteenth Century. Those alleged
takings do not renew or replicate each day or
with each physical incursion upon the twelve
sections of land. See, e.g., Boling, 220 F.3d
at 1373–74 (taking accrued on date erosion
from waterway substantially encroached on
plaintiffs’ property and claims did not renew
with each quantum of erosion damage to
plaintiffs’ property); Fallini, 56 F.3d at
1382–83 (taking via legislation that prevented
plaintiffs from disallowing wild horses and
burros to drink plaintiffs’ water did not renew
with ‘‘every drink by every wild horse’’);
Voisin, 80 Fed.Cl. at 172, 176–77 (refusing to
apply continuing claims doctrine, in similar
circumstances, where plaintiffs alleged that
the United States’ ‘‘continued and repeated
refusal to recognize [plaintiffs] as the rightful
owners of [the disputed parcel] should be
considered a continuing wrong’’).
[37] Nor does the Indian Trust Accounting
Statute assist plaintiff-intervenors. The
version of that statute in place at the time of
the filing of plaintiffs’ initial complaint provided:
[N]otwithstanding any other provision of
law, the statute of limitations shall not
commence to run on any claim, including
any claim in litigation pending on the date
of the enactment of this Act, concerning
losses to or mismanagement of trust funds,
until the affected tribe or individual Indian
has been furnished with an accounting of
such funds from which the beneficiary can
determine whether there has been a loss.
117 Stat. at 1263. In Shoshone Indian Tribe
of the Wind River Reservation v. United
States, 364 F.3d 1339, 1348–50 (Fed.Cir.
2004), the Federal Circuit emphasized that
the Indian Trust Accounting Statute applies
only to trust funds and does not toll claims
for breach of fiduciary duties regarding trust
assets. See also Rosales v. United States, 89
Fed.Cl. 565, 580 (2009) (Indian Trust Accounting
Statute did not apply to claims of
breach of fiduciary duty where plaintiffs
claimed they were rightful beneficial owners
of parcels of land held in trust by government
for Indian tribe); Simmons v. United
States, 71 Fed.Cl. 188, 193 (2006) (Indian
Trust Accounting Statute did not apply to a
claim for breach of fiduciary duty for government
mismanagement of timber assets).
Plaintiff-intervenors’ reliance on the Indian
Trust Accounting Statute is thus unavailing.
Their claims center on parcels of land—not
on trust funds—and the court has already
found that the 1863 Acts did not create a
trust relationship or impose upon the government
fiduciary duties; thus, there is nothing
held in trust under the 1863 Acts to which
the Indian Trust Accounting Statute could
apply.
[38] Plaintiff-intervenors’ final contention,
that the claims should be tolled for
minors, is dealt with much in the same way it
was first rejected by this court in Wolfchild
I. As the court noted, the pertinent statute of
because ‘‘

laintiff[-intervenors] did not receive
any notice or opportunity to be heard pursuant
to th[at] statute.’’ Robertson–Vadnais Mem. at
37. Section 2415 provides the statute of limitations
for actions for money damages brought by
the United States and has no bearing on this
case.

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limitations, 28 U.S.C. § 2501, ‘‘treats children
as if they were legally unable to file suit and
allows filing within three years after a child
reaches majority status.’’ 62 Fed.Cl. at 549.
Eighteen years is the age of majority in
Minnesota. See Minn.Stat. § 645.451. The
alleged takings in this case accrued in the
Nineteenth Century. The minors’ takings
claims are thus time-barred as well.
E. Synopsis
In sum, the court concludes that plaintiffs
lack standing to bring a claim based upon the
Non–Intercourse Act because they are not a
‘‘tribe’’ within the meaning of the Act. Plaintiffs
also lack any claim grounded in the 1863
Acts because those Acts do not impose a
money-mandating duty upon the government
nor do they create specific fiduciary obligations
giving rise to a trust relationship
between plaintiffs and the government. The
Robertson–Vadnais Group of plaintiff-intervenors’
takings claim fails because it falls
outside this court’s statute of limitations.
These defects of the proposed amendments
are jurisdictional in nature; the particular
claims at issue would not withstand a motion
to dismiss. Accordingly, plaintiffs and plaintiff-
intervenors’ motions to amend must be
denied in relevant part for futility. See Kemin
Foods, 464 F.3d at 1354–55; Webster, 74
Fed.Cl. at 444; Shoshone Indian Tribe, 71
Fed.Cl. at 176. In other respects the proposed
amendments are allowed. The government’s
motion to dismiss claims based
upon the 1863 Acts is granted as to the Julia
DuMarce Group and the Harley Zephier
Group of plaintiff-intervenors, which groups
were granted leave to amend their complaints
to include claims based upon the 1863
Acts in the court’s opinion in Wolfchild VII.
See 96 Fed.Cl. at 335–36.
II. MOTIONS FOR SUMMARY JUDGMENT
AND MOTION TO DEFER
CONSIDERATION PURSUANT TO
RULE 56(f)
The question of claimant eligibility has
permeated this case from its inception.
While identification of proper plaintiffs is
expected to be a source of some contention in
a case of this nature, the government’s erratic
positions as to this issue have exacerbated
the matter.
At a status conference held on January 21,
2011, the parties agreed on a schedule for a
final resolution of this case, which schedule
included, among other things, the requirement
that plaintiffs and plaintiff-intervenors
submit documentation in support of their motions
for summary judgment regarding
claimant eligibility. See Scheduling Order,
Wolfchild v. United States, No. 03–2684
(Fed.Cl. Jan. 21, 2011), ECF No. 843. As
contemplated by the parties’ discussions during
the status conference and pursuant to
that schedule, plaintiffs and plaintiff-intervenors
have filed proposed findings of uncontroverted
facts and motions for summary
judgment regarding the determination of eligible
claimants and have submitted attendant
to those motions almost 150,000 pages of
documentary exhibits. See Def.’s Rule 56(d)
Mot. at 3. Plaintiffs rely on these documents
and a declaration submitted by Dr. Barbara
Buttes to contend that they have satisfied the
preponderance-of-the-evidence standard for
eligibility and that ‘‘[t]here are no disputed
material facts’’ precluding summary judgment
in their favor. Pls.’ Mot. at 32–33; see
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (party
moving for summary judgment must demonstrate
the absence of any genuine issue of
material fact); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 250, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986) (A material fact is one
‘‘that might affect the outcome of the suit
under the governing law,’’ and a genuine
dispute is one that ‘‘may reasonably be resolved
in favor of either party.’’).
In response to plaintiffs’ motions, the government
filed a motion to defer consideration
under RCFC 56(d).19 Rule 56(d) provides
that ‘‘f a nonmovant [for summary judgment]
shows by affidavit or declaration that,
for specified reasons, it cannot present facts
essential to justify its opposition, the court
may TTT allow time to obtain affidavits or
19. Prior to the court’s amendments to the Rules
of the Court of Federal Claims which became
effective on July 15, 2011, similar language appeared
in RCFC 56(f). The government’s motion
was filed prior to July 15, 2011, and refers to
RCFC 56(f).

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declarations or to take discovery.’’ RCFC
56(d)(2); see also Brubaker Amusement Co.
v. United States, 304 F.3d 1349, 1361 (Fed.
Cir.2002). Such a motion must articulate
‘‘with particularity, what facts the movant
hopes to obtain by discovery and how these
facts will raise a genuine issue of fact.’’ Exigent
Tech., Inc. v. Atrana Solutions, Inc.,
442 F.3d 1301, 1310 (Fed.Cir.2006).
In its motion under Rule 56(d), the government
resurrected its contention, which position
was rejected by this court in Wolfchild I,
that ‘‘

laintiffs are not a group of identifiable
Indians.’’ Def.’s Rule 56(d) Mot. at 1;
id. at 5 (‘‘This lawsuit is not in the name of
an Indian Tribe or an identifiable group of
Indians.’’). Concurrently, the government
requested that the ‘‘[c]ourt determine that
[the government] need not respond to

laintiffs’

roposed [f]indings of ncontroverted
[f]act until such time as the eligibility
criteria for any claimants are established and
[the government] has had time to conduct
any additional and necessary discovery related
to those criteria.’’ Id. at 9. As cause for
its motion, the government stated that ‘‘the
[c]ourt has not yet defined the requirements
and standards it intends to use to evaluate
the

laintiffs’ individual eligibility for any
disbursement,’’ id. at 1, and it ‘‘specifically
aver[red] that it await[ed] the adjudication
and a determination of which criteria define
an eligible claimant.’’ Id. at 8. It thus represented
that ‘‘ny additional factual discovery
would directly relate to the eligibility
criteria set forth by the [c]ourt.’’ Id.20 In
tension with these arguments, however, it
contended that ‘‘[d]etermination of which individual

laintiffs or ntervening-

laintiffs
are eligible to participate in any distribution
of funds as a result of the [c]ourt[’]s
December 21, 2010[ ] [o]rder TTT is not necessary
for the entry of final judgment.’’ Id.
at 2 (citation omitted). Then, in its reply to
plaintiffs’ response in opposition to the 56(d)
motion, the government again averred that
‘‘[t]he United States seeks relief pursuant to
RCFC 56( [d] ) because it requires additional
time to determine which individual plaintiffs
or intervening plaintiffs are eligible to
participate in any distribution of funds as a
result of the [c]ourt’s December 21, 2010[ ]
[o]rder.’’ Def.’s Rule 56(d) Reply at 1 (emphasis
added).
In a Joint Status Report filed May 27,
2011, however, the government retreated entirely
from its Rule 56(d) motion and, indeed,
from nearly all of its prior positions regarding
the appropriate procedure to determine
claimant eligibility. In that report, the government
asserted for the first time that the
Indian Judgment Distribution Act, 25 U.S.C.
§§ 1401–1408, applies here because the court
has determined that the plaintiffs are an
identifiable group of American Indians, and
‘‘[c]onsistent with that finding, the [g]overnment
believes that

laintiffs are, therefore,
also a ‘group’ under the [Distribution Act].’’
Joint Status Report at 10, Wolfchild v. United
States, No. 03–2684 (Fed.Cl. filed May 27,
2011), ECF No. 1076 (‘‘Joint Status Report’’).
The government ‘‘request[ed] that the [c]ourt
define those who may share in any award
premised on the Appropriations Acts,’’ and
asked the court to ‘‘find the McLeod and
Henton census rolls to be comprehensively
and exclusively correct, such that a [plaintiff]
must prove by a preponderance that they
descend from a person TTT on those rolls.’’
Id. at 8, 9; see also Def.’s Mot. at 61 (‘‘The
McLeod and Henton censuses were created
for the purpose of identifying those Indians
entitled to the benefits of the Appropriations
Acts, and this [c]ourt should accept them as
correct and dispositive.’’). It claimed, however,
that any distribution following such a
determination by the court ‘‘must be accomplished
according to the requirements of the
[Distribution Act].’’ Joint Status Report at
10.
At that point, the court requested that the
parties submit supplemental briefs addressing
the following three questions:
1) Does Chapter 16 of Title 25 of the
United States Code, 25 U.S.C. §§ 1401–
20. In its Rule 56(d) motion, the government also
urged the court to defer consideration of plaintiffs’
and intervening-plaintiffs’ claims of eligibility
as to the 1863 Acts until the court determines
‘‘whether the 1863 Acts give rise to a moneymandating
duty.’’ Def.’s Rule 56(d) Mot. at 7.
The court’s determination that plaintiff and
plaintiff-intervenors lack any viable claim
grounded in the 1863 Acts renders moot this
portion of the government’s motion.

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08, apply to a money judgment that is
entered and subject to payment under
28 U.S.C. § 2517 and 31 U.S.C. § 1304?
2) If Chapter 16 of Title 26 does not apply
to such a money judgment, can and
should a distribution plan nonetheless
follow and reflect the plan provisions
set out in Chapter 16?
3) If Chapter 16 of Title 25 does apply to
such a money judgment, what is the
court’s role in ensuring that the distribution
plan accords with the judgment
that is entered?
Order of June 3, 2011, ECF No. 1083.21
In response to the court’s request for supplemental
briefing, the government undertook
a further volte face in its supplemental
brief filed on June 17, 2011. Although the
government reiterated its contention that the
Distribution Act applies to any judgment that
may be issued in this case, it altered once
more its position as to this court’s proper
role in determining claimant eligibility. The
government avers now that ‘‘even asking this
[c]ourt to make a determination about the
import or extent of certain census rolls is
inappropriate’’ because ‘‘[t]o do so would operate
to summarily exclude certain classes of
potential participants before they could be
heard in the exclusive forum and [pursuant
to] processes provided by Congress to resolve
such issues under the Act.’’ Def.’s Supplemental
Br. at 16. The court accordingly
turns to the Indian Judgment Tribal Fund
Use or Distribution Act before proceeding to
address the eligible-claimant cross-motions.
A. The Indian Judgment Tribal Fund
Use or Distribution Act
Enacted on October 19, 1973, the Indian
Judgment Tribal Fund Use or Distribution
Act, Pub.L. No. 93–134, 87 Stat. 466, 466–68
(codified as amended at 25 U.S.C. §§ 1401–
08) provides, in relevant part:
Within one year after appropriation of
funds to pay a judgment of the Indian
Claims Commission or the United States
Court of Federal Claims to any Indian
tribe, the Secretary of the Interior shall
prepare and submit to Congress a plan for
the use and distribution of the funds.
Such plan shall include identification of the
present-day beneficiaries, a formula for the
division of the funds among two or more
beneficiary entities if such is warranted,
and a proposal for the use or distribution
of the funds.
25 U.S.C. § 1402(a).22 The impetus for the
Act was described in the House Report attendant
to the legislation:
21. The manner and means of paying judgments
of this court are provided by 28 U.S.C. § 2517,
which states in pertinent part:
(a) Except as provided by chapter 71 of title
41, every final judgment rendered by the United
States Court of Federal Claims against the
United States shall be paid out of any general
appropriation therefore, on presentation to the
Secretary of the Treasury of a certification of
the judgment by the clerk and chief judge of
the court.
28 U.S.C. § 2517(a). In turn, appropriations to
pay such judgments are provided via 31 U.S.C.
§ 1304, which states:
(a) Necessary amounts are appropriated to pay
final judgments, awards, compromise settlements,
and interest and costs specified in the
judgments or otherwise authorized by law
when—
(1) payment is not otherwise provided for;
(2) payment is certified by the Secretary of
the Treasury; and
(3) the judgment, award, or settlement is
payable—
(A) under section 2414, 2517, 2672, or 2677
of title 28;
(B) under section 3723 of this title;
(C) under a decision of a board of contract
appeals; or
(D) in excess of an amount payable from the
appropriations of an agency for a meritorious
claim under section 2733 or 2734 of title
10, section 715 of title 32, or section 20113
of title 51.
31 U.S.C. § 1304(a) (emphasis added).
22. The Act sets forth detailed guidelines for preparation
of a distribution plan. It delineates factors
the Secretary must consider in formulating
the plan, mandates that the Secretary provide a
hearing of record after public notice to the affected
tribe or group, and requires Interior to make
its ‘‘legal, financial, and other expertise TTT fully
available in an advisory capacity to the [affected]
Indian Tribe [or group] TTT to assist it [in] develop[
ing] and communicat[ing] to the Secretary
TTT its own suggested plan for the distribution
and use of such funds.’’ 25 U.S.C. §§ 1403(a),
(b).
As addressed in detail, infra, at 89–91, a previously-
existing requirement, codified at 25 U.S.C.
§§ 1402(a), 1404, that the Secretary submit such
a distribution plan to Congress for its review and
potential disapproval has been superseded by
subsequent law.

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Funds appropriated to satisfy judgments
of the Indian Claims Commission or the
Court of Claims on behalf of Indian plaintiffs
are deposited in the United States
Treasury to the credit of the plaintiff tribe.
Prior to 1960, under an opinion of the
Interior Solicitor, these funds were distributed
by the Secretary of the Interior without
further Congressional action.
Since 1960, each Interior Department
Appropriation Act has included the following
proviso:
Provided further, That nothing contained
in this paragraph or in any other
provision of law shall be construed to authorize
the expenditure of funds derived
from appropriations in satisfaction of
awards of the Indian Claims Commission
or the Court of Claims, TTT until after
legislation has been enacted that sets forth
the purposes for which said funds will be
usedTTTT
H.R.Rep. No. 93–377, at 4 (1973), 1973
U.S.C.C.A.N. 2311, 2313. The requirement
of further legislative action to approve a distribution
was ‘‘impos[ing] a severe burden
upon the time and efforts of Members of the
Committee on Interior and Insular affairs’’
and distracting its attention from other issues.
Id. at 4–5. Additionally, the process
of enacting legislation for each distribution of
funds ‘‘caused long delays, in some cases,
over several years after judgments [had]
been awarded until their distribution.’’
S.Rep. No. 93–167, at 2 (1973). The purpose
of the Distribution Act was to ameliorate this
situation by ‘‘provid[ing] for the use or distribution
of Indian judgment funds appropriated
in satisfaction of awards of the Indian
Claims Commission and the Court of Claims
without further legislation.’’ H.R.Rep. No.
93–377, at 3, 1973 U.S.C.C.A.N. 2311 at 2312.
Subsection 1401(a) of Title 25 defines the
scope of the Indian Judgment Distribution
Act and is the focal point of the court’s
inquiry. It provides:
Notwithstanding any other law, all use
or distribution of funds appropriated in
satisfaction of a judgment of the Indian
Claims Commission or the United States
Court of Federal Claims in favor of any
Indian tribe, band, group, pueblo, or community
(hereinafter referred to as ‘‘Indian
tribe’’) TTT shall be made pursuant to the
provisions of this chapter.
25 U.S.C. § 1401(a). Plaintiffs and plaintiffintervenors
object to application of the Indian
Judgment Distribution Act to this case.
They contend that the Act ‘‘only applies if
the party plaintiff is an entity and not specifically[-]
named individuals.’’ Pls.’ Supplemental
Br. at 2–3. Because plaintiffs and plaintiffs-
intervenors are named individuals, they
argue the Act does not encompass this case.
Id.; see also Pl.-Intervenors’ Supplemental
Br. at 6–7. Plaintiffs also aver that the Act
‘‘does not apply until Congress has actually
appropriated funds to pay a [Court of Federal
Claims] judgment separate and apart from
funding via 28 U.S.C. § 2517 and 31 U.S.C.
§ 1304.’’ Pls.’ Supplemental Br. at 4. Plaintiffs
thus urge that ‘‘because no separate,
specific appropriation has been enacted satisfying
a TTT judgment in TTT

laintiffs’ favor,’’
the Act does not apply. Id.
The government argues that the Act applies
because the court has already determined
that ‘‘

laintiffs [in this case] constitute
an ‘identifiable group of Indians’ for
purposes of exercising jurisdiction under 28
U.S.C. § 1505.’’ Joint Status Report at 10
(quoting Wolfchild I, 62 Fed.Cl. at 539); see
also Def.’s Supplemental Br. at 1. It contends
also that the Act applies to any money judgment
issued from this court, whether that
judgment is satisfied pursuant 28 U.S.C.
§ 2517 and 31 U.S.C. § 1304 or by a separate
appropriation from Congress. Def.’s Supplemental
Br. at 7.
1. An Indian ‘‘group.’’
As noted, the court has determined and
reaffirmed multiple times that plaintiffs are
‘‘an identifiable group of American Indians.’’
Wolfchild I, 62 Fed.Cl. at 540; see also id. at
540 (‘‘

laintiffs bring their claims specifically
and solely as members of a group.’’);
Wolfchild VII, 96 Fed.Cl. at 338 (‘‘The loyal
Mdewakanton are an ‘identifiable group of
American Indians’ within the meaning of the
[Indian Tucker] Act.’’). Plaintiffs contend,
however, that the court’s classification of
plaintiffs under the Indian Tucker Act does
not mean that plaintiffs are a ‘‘group’’ within

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the meaning of the Indian Judgment Distribution
Act because the latter ‘‘does not TTT
mention the Indian Tucker Act’’ and because
‘‘group’’ as used in the Distribution Act encompasses
only singular Indian entities, not
judgments in favor of named individuals.
Pls.’ Supplemental Br. at 2–3.
The Indian Judgment Distribution Act
does not define the term ‘‘group.’’ The regulations
implementing the Act provide, however,
that ‘‘Indian tribe or group means any
Indian tribe, nation, band, pueblo, community
or identifiable group of Indians, or Alaska
Native entity.’’ 25 C.F.R. § 87.1(g) (emphasis
added). Subsection (g) of this regulation
indisputably encompasses the plaintiffs in
this case. Importantly, the Department of
the Interior’s interpretation of the Distribution
Act reflected in this regulation is amply
supported by the statutory regime and history
governing Indian claims in this court.
[39, 40] Where, as here, the text of a
statute does not furnish a definitive answer,
reference to context, legislative history, and
canons of statutory construction is warranted.
See Bull v. United States, 479 F.3d 1365,
1376 (Fed.Cir.2007); Timex V.I. v. United
States, 157 F.3d 879, 882 (Fed.Cir.1998). Of
particular relevance in this case, the in pari
materia canon of construction dictates that
‘‘statutes addressing the same subject matter
generally should be read as if they were one
law.’’ Wachovia Bank v. Schmidt, 546 U.S.
303, 315–16, 126 S.Ct. 941, 163 L.Ed.2d 797
(2006) (quoting Erlenbaugh v. United States,
409 U.S. 239, 243, 93 S.Ct. 477, 34 L.Ed.2d
446 (1972)) (internal quotation marks omitted);
see also Strategic Housing Fin. Corp.
of Travis Cnty. v. United States, 608 F.3d
1317, 1330 (Fed.Cir.2010) (‘‘Under [the in
pari materia ] canon, courts should interpret
statutes with similar language that generally
address the same subject matter together, as
if they were one law.’’) (internal quotation
marks omitted).
[41] Although the Indian Tucker Act is a
jurisdictional grant to the Court of Federal
Claims, and the Distribution Act governs the
administration of certain judgments from the
Court of Federal Claims (and, formerly, the
Indian Claims Commission), the relationship
between the two statutes favors application
of the in pari materia canon. As described
below, presently, the Indian Tucker Act
serves as the only jurisdictional avenue by
which a judgment falling within the terms of
the Distribution Act may be created. In this
context, the court finds it improbable that
Congress intended ‘‘group’’ as used in the
Distribution Act to have a meaning entirely
exclusive of the term ‘‘identifiable group’’ in
the Indian Tucker Act.
The court is persuaded as well by the
parallel structure of the jurisdictional grant
to the Indian Claims Commission. The Indian
Tucker Act, passed in its original form in
1949, adopted language nearly identical to
that used in the grant of jurisdiction to the
Indian Claims Commission, created three
years earlier. Compare Act of May 24, 1949,
ch. 139, § 89(a), 63 Stat. 89, 102 (codified as
amended at 28 U.S.C. § 1505) (granting jurisdiction
to the Court of Claims over claims
against the United States accruing after August
13, 1946 ‘‘in favor of any tribe, band, or
other identifiable group of American Indians
residing within the territorial limits of the
United States or Alaska’’), with Indian
Claims Commission Act, Act of Aug. 13, 1946,
§ 2, 60 Stat. 1049, 1050 (granting jurisdiction
to the Claims Commission over claims
against the United States by ‘‘any Indian
tribe, band, or other identifiable group of
American Indians residing within the territorial
limits of the United States or Alaska’’).
Early on, the Court of Claims recognized
that there was a distinction between the term
‘‘tribe’’ and ‘‘group’’ under the Indian Claims
Commission Act. See McGhee v. Creek Nation,
122 Ct.Cl. 380 (1952). In this regard,
the Court of Claims stated:
To identify is to establish the identity of,
and if a group presenting a claim under
the Act is capable of being identified as a
group of Indians consisting of the descendants
of members of the tribes or bands
which existed at the time the claim arose,
the jurisdictional requirements of the status,
in our opinion, have been met. It
would TTT be a strained and unwarranted
interpretation of the Act to say that Congress
intended by the term ‘identifiable
group’ that the group making the claim
must be identical, as a distinct entity, with

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the tribe or band existing at the time the
claim arose. Such interpretation would
make the term ‘identifiable group’ mean
nothing more than a recognized tribe or
band.
Id. at 391–92; see also Thompson v. United
States, 122 Ct.Cl. 348, 360 (1952) (‘‘Congress
intended to enlarge [beyond ‘recognized
tribes or bands’] the category of groups of
Indians entitled to present claims for hearing
and determination when it added the words
‘or other identifiable groups,’ not theretofore
customarily used.’’).
The court’s reading of the language within
the Indian Claims Commission Act naturally
carried over into the Indian Tucker Act as
well, see Tee–Hit–Ton Indians v. United
States, 120 F.Supp. 202, 204 (Ct.Cl.1954),
aff’d, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314
(1955),23 and persists to the present day, see
Chippewa Cree Tribe of the Rocky Boy’s
Reservation v. United States, 69 Fed.Cl. 639,
670–71 (2006). In 1976, the Indian Claims
Commission was abolished, at which point
Congress instructed the Commission to
‘‘transfer [all cases] to the Court of Claims’’
and granted jurisdiction to the Court of
Claims over those cases previously heard by
the Commission. See Pub.L. No. 94–465,
§ 23, 90 Stat. 1990 (1976).
Thus, when the Indian Judgment Distribution
Act was enacted in 1973, the only judgments
that could have potentially fallen within
the scope of the Distribution Act would
have been those from the Court of Claims or
the Indian Claims Commission in favor of a
‘‘tribe, band, or other identifiable group of
American Indians,’’ with the latter phrase
carrying the precise meaning it does today,
that is, an aggregation of identifiable American
Indians but not necessarily a singular
entity. The Distribution Act encompasses
judgments in favor of ‘‘any Indian tribe,
band, group, pueblo, or community.’’ 25
U.S.C. § 1401(a). It would be strange indeed
if the term ‘‘group’’ as used in that Act
included only singular Indian entities besides
those known as tribes and bands, when the
two jurisdictional statutes which could produce
judgments within the scope of the Distribution
Act encompassed only judgments in
favor of ‘‘identifiable group of American
Indians,’’ besides those known as tribes and
bands. 28 U.S.C. § 1505; 60 Stat. at 1050.
The only reading of the Distribution Act
which does not logically necessitate finding
that an ‘‘identifiable group’’ under the Indian
Tucker Act qualifies as a ‘‘group’’ under the
Distribution Act is one which gives the term
‘‘group’’ as used in the Distribution Act a
technical meaning amounting essentially to a
federally-recognized entity; yet, pertinent
regulations governing Indian recognition
defy such a reading.
The Department of the Interior’s regulations
governing federal acknowledgement of
Indian associations define an ‘‘Indian group
or group’’ as ‘‘any Indian or Alaska Native
aggregation within the continental United
States that the Secretary of the Interior does
not acknowledge to be an Indian tribe.’’ 25
C.F.R. § 83.1. The regulations explicitly distinguish
such a ‘‘group’’ from federally-acknowledged
aggregations of Indians, which
may be recognized as ‘‘tribes, organized
bands, pueblos, Alaska Native villages, or
communities.’’ 25 C.F.R. § 83.3(b). The
Department of the Interior’s regulations thus
show that to the extent the term Indian
‘‘group’’ may have a particular meaning within
the legislative or regulatory context, the
term does not equate to a recognized, singular
Indian entity but rather encompasses aggregations
of Indians.
Furthermore, the legislative history of the
Indian Judgment Distribution Act disfavors
plaintiffs’ position. Section 4 of Senate Bill
1016, the legislative predecessor to the Act,
provided:
Within six months after the date of the
appropriation of funds by the Congress to
pay each Indian judgment, the Secretary
of the Interior TTT shall prepare and submit
to the Congress a recommended plan
for the distribution of such funds TTT to the
23. Notably, although the Court of Claims’ finding
that plaintiffs constituted an ‘‘identifiable group’’
under 28 U.S.C. § 1505 was not a disputed issue
on appeal to the Supreme Court, the Supreme
Court observed that the claimants in Tee–Hit–Ton
were ‘‘an identifiable group of American Indians
of between 60 and 70 individuals residing in
Alaska.’’ Tee–Hit–Ton, 348 U.S. at 273, 75 S.Ct.
313.

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Indian tribe, band, group, pueblo, or community
in whose favor such judgment is
rendered and such funds appropriated.
Hearing Before the Subcomm. on Indian
Affairs of the Comm. on Interior and Insular
Affairs: First Session on S. 1016, 93d
Cong. 5–6 (1973) (‘‘Hearing on S. 1016’’) (S.
1016, 93d Cong. (1973)) (emphasis added).
After Congress solicited the views of the
Department of Interior on the proposed legislation,
the Assistant Secretary of the Interior
objected to the emphasized language, noting
that ‘‘the beneficiaries of an award are
often individuals, for example, the persons
listed on a given roll.’’ Id. at 12, 14 (Letter
from John H. Kyl, Assistant Secretary of the
Interior, to Sen. Henry Jackson (Apr. 12,
1973)) (emphasis added). The Assistant Secretary
recommended the deletion of any language
insinuating judgments were rendered
or funds appropriated in favor of Indian
tribes, bands, groups, pueblos, or communities.
Id. at 14. Congress obliged, and that
portion of Section 4 of Senate Bill 1016, along
with similar language, was struck from the
bill. See 93 Cong. Rec. 33,180 (1973) (statement
of Sen. Jackson) (‘‘At the time this
measure was considered before the full committee,
all of the Department’s clarifying
amendments were approvedTTTT’’); 93 Cong.
Rec. 16,375–76 (1973) (enacting relevant
amendments to S. 1016).
Congress’ alteration of the provision of the
Distribution Act providing for public hearings
of record on a proposed distribution
plan is similarly instructive. Section 4(c)(2)
of Senate Bill 1016 required the Secretary to
‘‘hold a hearing or hearings of record, after
appropriate public notice, to obtain the testimony
of leaders and members of the Indian
tribe, band, group, pueblo, or community and
any individual who may receive any portion,
or be affected by the distribution, of such
funds.’’ Hearing on S. 1016 at 7. Here also,
the Assistant Secretary objected, noting that
‘‘ecause of the fact that many judgments
involve entities which are comprised solely of
individual descendants, sometimes numbering
in the thousands TTT to guarantee that all
individuals’ views be heard in public hearings,
as section 4(c)(2) contemplates, would
be impossible, even with respect to smaller,
organized tribesTTTT Accordingly, we recommend
that the words ‘and any individual’ TTT
be deleted.’’ Id. at 15. Those words were
struck from the bill, and 25 U.S.C.
§ 1403(a)(2) instead requires the Secretary
to hold a public hearing ‘‘to obtain the testimony
of leaders and members of the Indian
tribe which may receive any portion, or be
affected by the use of distribution, of such
funds.’’
This series of events demonstrates that
Congress understood that the Indian Judgment
Distribution Act was to encompass
judgments in favor of aggregations of individual
Indians, and not just singular entities.
And indeed, other provisions of the Indian
Judgment Distribution Act make sense only
with this understanding of the Act. For example,
25 U.S.C. § 1403(a) requires that the
Secretary ‘‘prepare a plan which shall best
serve the interest of all those entities and
individuals entitled to receive funds of each
Indian judgment.’’ (Emphasis added.) In
this same vein, 25 U.S.C. § 1403(b)(2) mandates
that the Secretary assure that ‘‘the
needs and desires of any groups or individuals
who are in a minority position, but who
are also entitled to receive such funds, have
been fully ascertained and considered.’’ (emphasis
added); see also 25 U.S.C. § 1404(2)
(requiring the Secretary to submit to Congress
‘‘a statement of the extent to which
such plan reflects the desire of the Indian
tribe or individuals which are entitled to
such funds’’) (emphasis added).
Nevertheless, plaintiffs and plaintiff-intervenors
rely on Short v. United States, 12
Cl.Ct. 36 (1987), in arguing that the Distribution
Act does not apply. See Pls.’ Supplemental
Br. at 2. Plaintiffs contend that Short
‘‘held that 25 [U.S.C.] § 1401 did not apply
because the judgment was issued in favor of
individual Indian class beneficiaries.’’ Pls.’
Supplemental Br. at 3. Short, however, is
inapposite to the present case.
In contrast to this case, in Short the
Claims Court found jurisdiction under the
Tucker Act, 28 U.S.C. § 1491, not the Indian
Tucker Act, 28 U.S.C. § 1505. See Short, 12
Cl.Ct. at 40 (‘‘

laintiffs are suing as individuals
under 28 U.S.C. § 1491 (1982).’’). Later,
‘‘n 1989, the Claims Court denied the

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plaintiffs’ claim for group damages under 28
U.S.C. § 1505.’’ Short v. United States, 50
F.3d 994, 997 (Fed.Cir.1995) (emphasis added)
(citing Order at 3–10, Short v. United
States, No. 102–63 (Cl.Ct. July 25, 1989)).
The court also refused the government’s request
to substitute a tribal entity for the
individually-named plaintiffs and to apply the
Distribution Act to the judgment because
‘‘there [was] no functioning TTT tribal organization,’’
and ‘‘substitution of such a nonfunctioning
entity’’ would impair prompt resolution
of the case. Short v. United States, 661
F.2d 150, 155 (Ct.Cl.1981).24
Although this case bears a similarity to
Short in that plaintiffs are not suing as part
of a federally-recognized entity, the plaintiffs
are an identifiable group. At a minimum,
the lineal descendants of the loyal
Mdewakanton are identifiable under the
terms of the Appropriations Acts and the
two censuses. See, e.g., Chippewa Cree
Tribe, 69 Fed.Cl. at 670–74 (holding that
beneficiaries of judgment fund constituted
an identifiable group where beneficiary class
was defined by statute and rolls prepared
by the Secretary of Interior); Peoria Tribe
of Indians of Okla. v. United States, 169
Ct.Cl. 1009, 1012–13 (1965) (finding that
identification of two scattered families descended
from an Indian nation was sufficient
to support Claims Commission’s determination
that plaintiffs constituted an identifiable
group); Thompson v. United States, 122 Ct.
Cl. 348, 360 (1952) (holding that Indians of
California could bring suit as identifiable
group despite lack of formal tribal organization).
What is more, plaintiffs assert a collective
interest in the lands and funds resulting
from the Appropriations Acts. See,
e.g., Tee–Hit–Ton Indians, 120 F.Supp. at
204 (holding that individuals representing
the plaintiff clan constituted an identifiable
group where ‘‘land TTT was claimed by the
plaintiff clan as a whole’’).
For these reasons, the court finds that
plaintiffs and plaintiff-intervenors are indeed
an ‘‘identifiable group’’ under the Indian
Tucker Act, and thus, a ‘‘group’’ within the
meaning of the Indian Judgment Distribution
Act.
2. ‘‘Funds appropriated in satisfaction of
a judgment.’’
Plaintiffs aver that the Distribution Act
‘‘does not apply until Congress has actually
appropriated funds to pay a [Court of Federal
Claims] judgment separate and apart from
funding via 28 U.S.C. § 2517 and 31 U.S.C.
§ 1304.’’ Pls.’ Supplemental Br. at 4. Plaintiffs
contend that ‘‘the government’s [position]
is based on a contingency—that Congress
would actually enact, in the future, a
specific claims distribution act for the [plaintiffs].’’
Id. The government responds that no
separate appropriation is necessary to trigger
application of the Distribution Act because
28 U.S.C. § 2517 and 31 U.S.C. § 1304
provide the exclusive statutory mechanism
for Congressional funding of this court’s
judgments. See Def.’s Supplemental Br. at
7.
The Indian Judgment Distribution Act applies,
‘‘[n]otwithstanding any other law, [to]
all use or distribution of funds appropriated
in satisfaction of a judgment of the TTT United
States Court of Federal Claims in favor of
any Indian tribe, band, group, pueblo, or
community.’’ 25 U.S.C. § 1401(a). In isolation,
the statutory text does not make obvious
whether the Act applies only to funds
specifically appropriated by separate legislation
to satisfy Court of Federal Claims’ judgments
in favor of Indians, or whether it
applies to funds derived from the general
24. Decisions rendered in the Short litigation
must be viewed in light of that case’s particular
and peculiar history. The Short litigation
spanned nearly forty years, and eventually gave
way to Congressional intervention, namely, the
1988 Hoopa–Yurok Settlement Act, 25 U.S.C.
§§ 1300i to 1300i–11 (1994). That Act ‘‘nullified
the Short rulings [Short v. United States, 486 F.2d
561 (Ct.Cl.1973); Short v. United States, 661 F.2d
150 (Ct.Cl.1981); Short v. United States, 719 F.2d
1133 (Fed.Cir.1983) ], by establishing a new
Hoopa Valley Reservation.’’ Karuk Tribe of Cal.
v. Ammon, 209 F.3d 1366, 1372 (Fed.Cir.2000).
Additionally, avoidance of the Distribution Act
did not turn out to provide the relatively rapid
distribution of judgment funds that the Short
court expected; a final order directing the entry
of judgments was not filed until 1993, thirty
years after the initial decision on liability was
issued. See Final Order Directing Entry of Judgments,
Short v. United States, No. 63–102 (Fed.
Cl. July 29, 1993), ECF No. 3.

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appropriation known as the Judgment Fund
when those funds satisfy an Indian judgment.
Although the text does not furnish a definitive
answer, the statutory regime governing
appropriations to satisfy judgments of this
court and the legislative history of the Distribution
Act provide interpretive guidance.
Two statutes govern payment of this
court’s judgments: 28 U.S.C. § 2517 and 31
U.S.C. § 1304, each quoted supra, at 78 n.
21. Prior to 1863, judgments rendered by this
court’s predecessor, the Court of Claims,
were payable only by ‘‘specific legislative enactment.’’
Slattery v. United States, 635
F.3d 1298, 1301 (Fed.Cir.2011) (en banc). In
the Amended Court of Claims Act of 1863,
ch. 92, 12 Stat. 765, 766, Congress provided
that judgments of the court were to ‘‘be paid
out of any general appropriation made by law
for the payment and satisfaction of private
claims.’’ Slattery, 635 F.3d at 1302. That
provision ‘‘removed the need for a special
congressional appropriation to pay each individual
judgment’’ and is now codified as
amended at 28 U.S.C. § 2517. Id. at 1302.
‘‘Following the 1863 enactment, Congress
made periodic general appropriations for
payment of the judgments of the Court of
Claims, initially on an annualized basis, e.g.,
Act of June 25, 1864, ch. 147, 13 Stat. 145,
148, and then by a standing appropriation
that created a Judgment Fund to pay all
Court of Claims judgments for which a specific
appropriation did not exist, e.g., Supplemental
Appropriation Act, 1957, Pub.L. No.
84–814, § 1302, 70 Stat. 678, 694–95 (1956).’’
Slattery, 635 F.3d at 1302–03. Now codified
as amended at 31 U.S.C. § 1304, the Judgment
Fund statute provides for payments of
certain judgments against the United States,
including those authorized by 28 U.S.C.
§ 2517.25 The Judgment Fund was created
‘‘to avoid the need for specific appropriations
to pay judgments awarded by the Court of
Claims.’’ Slattery, 635 F.3d at 1317; see also
Bell BCI Co. v. United States, 91 Fed.Cl. 664,
668 (2010) (‘‘Congress enacted the Judgment
Fund in 1956 to eliminate the need for specific
appropriations to satisfy judgments
against federal agencies.’’). It is ‘‘a permanent,
indefinite appropriation.’’ 31 C.F.R.
§ 256.1.
[42] Thus, pursuant to 28 U.S.C. § 2517
and 31 U.S.C. § 1304, unless provision for
payment of a judgment is supplied by another
statute, any final judgment issued by this
court is satisfied by payment from the standing
appropriation known as the Judgment
Fund. See Doe v. United States, 16 Cl.Ct.
412, 423 (1989) (‘‘Every final judgment of the
United States Claims Court rendered against
the United States is to be paid out of the
judgment fund.’’). No additional appropriation
by Congress is necessary; once the
award is certified by the clerk and the chief
judge of this court, it is presented to the
Secretary of the Treasury. See 28 U.S.C.
§ 2517(a). Once the Secretary certifies the
judgment, 31 U.S.C. § 1304(a)(2), the funds
are deemed appropriated, and Treasury is
charged with providing the funds to the payee.
See, e.g., United States v. Dann, 470
U.S. 39, 42, 105 S.Ct. 1058, 84 L.Ed.2d 28
(1985) (noting that once Court of Claims’
judgment was certified to the General Accounting
Office pursuant to 31 U.S.C. § 724a
(1976 ed., Supp. V), the predecessor statute
to 31 U.S.C. § 1304, ‘‘this certification automatically
appropriated the amount of the
award’’); see also 31 C.F.R. §§ 256.0–.60
(Treasury regulations governing payments
from the Judgment Fund); Treasury Financial
Manual 6–3100, Certifying Payments
and Recording Corresponding Intragovernmental
Receivables in the Federal Government’s
Judgment Fund (Apr. 2009) (describing
Treasury’s process for administering
payments under the Judgment Fund).
Notably, relevant judicial precedents also
disfavor plaintiffs’ position. In Dann, 470
25. As the Federal Circuit noted in Slattery, ‘‘[t]he
Judgment Fund had been limited to payments up
to $100,000, but Congress removed the cap, so
that the Fund covers claims of any amount.’’
635 F.3d at 1303 (citing Supplemental Appropriations
Act, 1977, Pub.L. No. 95–26, ch. 14, 91
Stat. 61, 96–97). It is likely that the original
language of the Distribution Act in Senate Bill
1016 which spoke more specifically of funds being
appropriated in favor of Indians was grounded
in the reality that at the time the Distribution
Act was passed in 1973, the $100,000 cap on the
Judgment Fund would have necessitated a separate
appropriation for nearly every Indian judgment.

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U.S. 39, 105 S.Ct. 1058, individual plaintiffs
alleged, in defense of an action in trespass
brought by the United States, that they possessed
aboriginal title to a portion of land
that had been the subject of litigation before
the Indian Claims Commission. 470 U.S. at
43, 105 S.Ct. 1058. The Claims Commission
had awarded damages to the Western Shoshone
tribe of Indians for the loss of aboriginal
title to that land. Id. In Dann, the
government contended that the plaintiffs’ aboriginal-
title defense was unavailing due to
the collateral—estoppel effect of the Claims
Commission’s judgment. Id. The Court of
Appeals for the Ninth Circuit rejected that
contention, finding that the Claims Commission
judgment did not yet have collateralestoppel
effect because ‘‘payment’’ to the
Western Shoshone had not then occurred
within the meaning of Section 22(a) of the
Indian Claims Commission Act, which section
dictated that ‘‘payment’’ of any claim before
the Commission effected a ‘‘full discharge of
the United States of all claims and demands
touching any of the matters involved in the
controversy.’’ United States v. Dann, 706
F.2d 919, 924, 925–27 (9th Cir.1983). The
court of appeals found dispositive the fact
that although funds had been appropriated
and credited to an interest-bearing Treasury
account in the name of the Western Shoshone,
no funds had actually been disbursed
to or used for the benefit of the tribe, nor
had Congress then passed legislation to provide
a distribution plan for the funds. Id. at
925–26.26
The Supreme Court disagreed, concluding
that ‘‘payment’’ occurred within the meaning
of Section 22(a) when the judgment in favor
of the Western Shoshone was certified pursuant
to 31 U.S.C. § 724a (1976 ed., Supp. V),
the Judgment Fund predecessor statute to
31 U.S.C. § 1304,27 and funds to compensate
the tribe were placed by the government into
an account in the Treasury. Dann, 470 U.S.
at 44–45, 105 S.Ct. 1058. Importantly for the
present case, the Court stated explicitly that
the Indian Judgment Distribution Act applied
to the Commission’s judgment as affirmed
by the Court of Claims, and ‘‘nder
25 U.S.C. § 1402(a) and § 1403(a), the Secretary
of the Interior [wa]s required, after
consulting with the Tribe, to submit to Congress
within a specified period of time a plan
for the distribution of the fund.’’ Id. at 42,
105 S.Ct. 1058. Although 31 U.S.C. § 724a
(1976 ed., Supp. V) and 31 U.S.C. § 1304
differ in their details, their effect is the same,
and there is nothing within 31 U.S.C. § 1304
that would lead to the conclusion that a
judgment certified under its mandates is not
subject to the Indian Judgment Distribution
Act whereas one certified pursuant to its
precursor was subject to the Distribution
Act.
The Senate Report on the bill that became
the Distribution Act is revealing in this regard,
as well. As previously noted, contained
within that report is a letter from the Assistant
Secretary of the Interior commenting on
the Distribution Act. In that letter, the Assistant
Secretary objected also to a provision in
Senate Bill 1016 that stated: ‘‘Within six
months after the date of the appropriation of
funds by the Congress to pay each Indian
judgment, the Secretary of the Interior TTT
shall prepare and submit to the Congress a
recommended plan for the distribution of
such funds TTT to the Indian tribe, band,
group, pueblo, or community in whose favor
such judgment is rendered and such funds
appropriated.’’ Hearing on S. 1016 at 5–6
(S. 1016, 93d Cong. § 4 (1973)) (emphasis
added). The Secretary observed:
[W]ith the exception of a few very early
Indian Claims Commission awards, neither
the Indian Claims Commission nor the
Court of Claims specifies the ultimate or
present-day beneficiaries of an award.
Furthermore, the appropriation acts covering
the awards are silent on the subject
of beneficiaries. The burden of identify-
26. In the Western Shoshone litigation, the Secretary
failed timely to submit to Congress a distribution
plan, and thus separate legislation for
distribution of the funds was required. Dann,
706 F.2d at 926. Ultimately, Congress provided
a plan for the use and distribution of the Western
Shoshone funds. See Western Shoshone Claims
Distribution Act, Pub.L. No. 108–270, 118 Stat.
805 (2004).
27. See United States v. General Elec. Corp., 727
F.2d 1567, 1571 (Fed.Cir.1984) (‘‘Title 31 U.S.C.
§ 724a was reenacted and is now 31 U.S.C.
§ 1304.’’).

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ing beneficiaries has fallen on the Secretary
of the Interior, a process that we feel
should continue to be followed because of
the fact that the identification of beneficiaries
often demands intense research in the
cultural and political history of the involved
group or groups. This is a task
that neither the Indian Claims Commission
nor the Court of Claims is equipped
to handle.
Id. at 14 (Letter from John H. Kyl, Assistant
Secretary of the Interior, to Sen. Henry M.
Jackson (Apr. 12, 1973)) (emphasis added).
The Assistant Secretary thus recommended
the deletion of the quoted language of Section
4 and all similar text. Id.; see also id.
at 19 (Test. of Mr. Kyl). Congress agreed,
and the quoted portion of Section 4 of Senate
Bill 1016, along with similar language, was
struck from the bill. See 93 Cong. Rec.
33,180; 93 Cong. Rec. 16,375–76.
While the Assistant Secretary’s objection
to Section 4 of Bill 1016 appeared to be
based primarily on the fact that judgments
in favor of Indians and appropriations to
satisfy those judgments did not list individual
beneficiaries, the language to which the
Secretary objected and which was ultimately
struck from the bill actually spoke of funds
being appropriated in favor of ‘‘the Indian
tribe, band, group, pueblo, or community,’’
not individual beneficiaries. Nevertheless,
the affirmative elimination of that language
is persuasive evidence that application of the
Distribution Act is not dependent on a specific
appropriation in the name of an Indian
entity.28
In short, the statutory scheme governing
payment of judgments by the Court of Federal
Claims and the legislative history of the
Indian Judgment Distribution Act convince
the court that the Distribution Act applies to
this case, regardless of whether the money is
automatically appropriated pursuant to the
Judgment Fund statute, 31 U.S.C. § 1304, or
Congress enacts a specific appropriation to
satisfy the judgment. Because the court
concludes that the Distribution Act applies
here, the court will abstain from identifying
the specific individual persons who qualify as
lineal descendants of the loyal Mdewakanton.
Identification of beneficiaries of the final
judgment is within the purview of the Secretary
of Interior under the Indian Judgment
Distribution Act. See 25 U.S.C. §§ 1402(a),
1403. The court will likewise refrain from
articulation of what specific criteria claimants
must satisfy to prove their status, as all
facets of this determination make up the
Secretary’s responsibilities under the Act.
See id.29
B. Application of the Indian Judgment
Distribution Act to this Case
1. Previously incurred costs associated
with formulation of a distribution
plan.
Although the court concludes that the Distribution
Act applies, it does so reluctantly.
As noted, pursuant to the parties’ representations
at the status conference held on January
21, 2011, and the scheduling order issued
on that same date, plaintiffs and plaintiffintervenors
prepared and filed 33 motions
and numerous proposed findings of uncontroverted
facts alleging that they are lineal de-
28. Notably, the language found in 25 U.S.C.
§ 1401(a) that defines the scope of the Distribution
Act was present in nearly identical form in
Section 3 of the original Senate Bill 1016, see
Hearing on S. 1016 at 5 (S. 1016, 93d Cong. § 3)
(1973), but no objection to that text was raised by
the Assistant Secretary.
29. The Indian Judgment Distribution Act’s delegation
to the Secretary of Interior of sole authority
to determine proper beneficiaries in Indian
judgment cases is in keeping with a line of cases
from this court that held, outside the context of
the Distribution Act and prior to the lifting of the
$100,000 cap on the Judgment Fund, that Congress
was responsible for determining individual
claimants through Congress’ appropriation of
funds to satisfy the Indian judgment. See, e.g.,
Turtle Mountain Band of Chippewa Indians v.
United States, 490 F.2d 935, 951 (Ct.Cl.1974);
Cherokee Freedmen & Cherokee Freedmen’s Assoc.
v. United States, 195 Ct.Cl. 39, 48 (1971); Confederated
Tribes of Warm Springs Reservation of Or.
v. United States, 177 Ct.Cl. 184, 210 (1966); Peoria
Tribe, 169 Ct.Cl. at 1011–12; McGhee, 122
Ct.Cl. at 396; see also Chippewa Cree Tribe of
Rocky Boy’s Reservation v. United States, 85 Fed.
Cl. 646, 657 (2009) (‘‘composition of the particularly
entity or group in whose favor an award is
made’’ was ‘‘beyond the competence of’’ the
court where Congress had enacted specific legislation
creating distribution plans for judgments
at issue).

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scendants of the loyal Mdewakanton. Attendant
to those motions, they have obtained,
sorted through, organized, and submitted to
the court and the government almost 150,000
pages of material to show individual genealogies
that span more than a century. Def.’s
Rule 56(d) Mot. at 3. This information includes
family trees, family Bibles, newspapers,
books, historical accounts, Excel
spreadsheets, birth certificates, and death
certificates. Id.; see also Def.’s Mem. at 62
(recounting plaintiffs’ and plaintiff-intervenors’
submissions). Indeed, the court can
summarize no better than the government
the Herculean task plaintiffs and plaintiffintervenors
undertook to prepare this case
for a final resolution:
t took

laintiffs years to compile their
own records. See Declaration Regarding
Persons Who Qualify as Proper Claimants
in this Case, March 8, 2011, at ¶ 7 (Dkt.
898) (‘‘Since the filing of the instant matter,
[plaintiffs’ counsel] has endeavored to
identify individuals, who through various
means but mainly birth certificates and
similar authentic records, can prove their
lineal descendancy.’’); Declaration of Barbara
Buttes, March 21, 2011, at ¶ 3 (Dkt.
978–2) (‘‘Over the eight years of this lawsuit
(2003–2011), Wi¢cafpi [Buttes’ research
firm] has employed many people, full-time
and part-time, to conduct the research on
1886 Mdewakanton descendancy.’’) (Dkt.
978–2). Indeed, merely to identify

laintiffs,
the lead

laintiffs’ attorney ‘‘went on
a tour of the Sioux Reservation in South
Dakota and six states and two nations.’’
Transcript, Attorney Erick Kaardal, p. 112
(June 10, 2005).
Def.’s Rule 56(d) Reply at 5.
[43] Plaintiffs’ and plaintiff-intervenors’
efforts were accomplished at the insistence of
the government, which has demanded from
the inception of this case that all plaintiffs be
individually named and identified as lineal
descendants in this case. See, e.g., Wolfchild
IV, 77 Fed.Cl. at 33 (‘‘The government states
that it and other parties to this action are
‘entitled to certainty and closure respecting
the number and identities of the persons’
participating in this suit.’’); Def.’s Mot. to
File Exs. under Seal at 2, Wolfchild v. United
States, No. 03–2684 (Fed.Cl. filed Sept. 13,
2007) (‘‘Names of minors and their ages are
necessary to the determination of whether
these individuals have previously been admitted
as partiesTTTT’’); Def.’s Resp. to Mot. to
Substitute Legal Counsel at 1, Wolfchild v.
United States, No. 03–2684 (Fed.Cl. filed
Feb. 23, 2007), ECF No. 430 (‘‘The United
States opposes the motion to the extent that
it seeks to add as new plaintiffs any persons
who have not already moved for, and been
granted, intervention.’’); Def.’s Opp’n to Pls.’
Mot. to Amend Third Amended Compl. at 2,
Wolfchild v. United States, No. 03–2684
(Fed.Cl. filed Feb. 2, 2007), ECF No. 418
(‘‘In a case in which such matters as lineage,
tribal affiliation, and severance of tribal relations
may play a significant role, it is particularly
important for the [d]efendant to know
for certain who the

laintiffs (and

laintiff-[
i]ntervenors) are.’’); Def.’s Opp’n to Du-
Marce Mot. to Intervene at 2, Wolfchild v.
United States, No. 03–2684 (Fed.Cl. filed
Nov. 8, 2006) (‘‘As it has previously noted,
the United States is entitled to have certainty
and closure respecting the number and
identities of the persons who are suing it in
this actionTTTT’’); Def.’s Mot. for Disclosure
of Names of John Doe Plaintiff–Intervenors
at 1, 4, Wolfchild v. United States, No. 03–
2684 (Fed.Cl. filed Oct. 24, 2006) (‘‘Defendant
TTT moves TTT for an [o]rder directing counsel
TTT to provide TTT the United States with
the identities of those John Doe plaintiffsTTTT
Defendant is entitled to know who
is suing it TTT This is particularly true in
light of the fact that all claims in the case
rest, in part, on allegations regarding the
lineage of the persons who are suing TTT No
litigant should be forced to defend itself
against phantom plaintiffs, nor carry the logistical
burden of keeping track of hundreds
of ‘John Does’ who may or may not exist.’’);
Def.’s Opp’n to DuMarce Mot. to Amend
First Amended Compl. at 3, Wolfchild v.
United States, No. 03–2684 (Fed.Cl. filed Oct.
23, 2006) (‘‘As it has previously noted, [d]efendant
is entitled to have certainty and closure
respecting the number and identities of
the persons who are suing it in this actionTTTT’’);
Def.’s Opp’n to Rooney Mot. to
Amend at 2, Wolfchild v. United States, No.
03–2684 (Fed.Cl. filed Oct. 10, 2006) (same).

A85

88

101 FEDERAL CLAIMS REPORTER

The government’s position regarding claimants
adopted at the outset and maintained
until the very last submissions has driven the
course of this litigation and is directly opposed
to the terms of the Distribution Act,
which contemplate that the government was
not entitled to such specific identification at
any time prior to a judgment, given that
development of a plan under the Distribution
Act would follow entry of a judgment.
Not only was the government in error to
demand identification of plaintiffs and proofs
of descent throughout this case, under the
Indian Judgment Distribution Act it is the
Secretary of Interior, not plaintiffs’ attorneys
or the court, who must sort through the
thousands of documents, compile the pertinent
records, and undertake the historical
research to determine the appropriate templates
by which to adjudicate claimant eligibility.
In short, it is the Department of the
Interior that is charged with the task of
determining whether each claimant’s supporting
documentation demonstrates lineal
descendancy. The pertinent regulations provide:
(a) The Secretary shall cause to begin as
early as possible the necessary research
to determine the identity of the
ultimate or present day beneficiaries
of judgments. Such research shall be
done under the direction of the Commissioner
of Indian Affairs. The affected
tribes or groups shall be encouraged
to submit pertinent date. All
pertinent data, including cultural, political
and historical material, and records,
including membership, census
and other roll shall be considered TTTT
(b) The results of all research shall be
provided to the governing bodies of all
affected tribes and groups. The Area
Director shall assist the affected tribe
or group in arranging for preliminary
sessions or meetings of the tribal governing
body, or public meetings. The
Area Director shall make a presentation
of the results of the research and
shall arrange for expertise of the Bureau
of Indian Affairs to be available at
these meetings to assist the tribe or
group in developing a use or distribution
proposalTTTT
25 C.F.R. § 87.3 (emphasis added). In the
Joint Status Report of May 27, 2011, the
government provided an illuminating example
of the scope of the work required under
the Distribution Act. The government explained
that in the context of the Western
Shoshone litigation, see supra, at 84–85 & n.
26:
The Bureau received more than 9,000 applications
to share in the judgment. The
documents to which claimants had to show
genealogical connections were census rolls
generated from 1885 to 1940. The Bureau
started accepting applications in October
2007. The first distribution was made in
March 2011; the final distributions have
not yet been made. The Bureau hired a
contractor to perform the voluminous research.
The Bureau paid the contractor
approximately $1.5 million for two years
of work. The Bureau elected not to endorse
the third year of the contract, assuming
direct responsibility for the work
to be done. To date, the Bureau has expended
about one million dollars above
what it paid the contractor.
The underlying documentation, i.e., census
roles, birth certificates, etc. in Western
Shoshone[,] is generally more recent, reducing
the research by one or possibly two
generations. Depending on the criteria to
qualify for a distribution in this case, the
number of Wolfchild applicants could be
twice the size of the Western Shoshone
claimant group.
Joint Status Report at 13 (emphasis added).
As demonstrated by the government’s recitation
of the work required in the Western
Shoshone litigation, plaintiffs’ and plaintiffintervenors’
assembly of the pertinent records
into a readily analyzable format in effect
will enable the government to avoid incurring
a substantial part of the costs entailed in
complying with the Indian Judgment Distribution
Act. In light of these circumstances,
the government shall reimburse plaintiffs
and plaintiff-intervenors for the costs of preparing
the materials that plaintiffs and plaintiff-
intervenors submitted in support of their
claims of eligibility as to the stipulated funds.

A86

89


WOLFCHILD v. U.S.

Cite as 101 Fed.Cl. 54 (2011)

The government’s unjustified litigation posture
has caused plaintiffs to expend resources
that properly should have been
borne by the government, and the plaintiffs
deserve recompense for those efforts. Such
reimbursement will also carry out the Department
of the Interior’s obligation to make
financial resources available to the claimant
group to aid in ‘‘develop[ing] and communicat[
ing] to the Secretary TTT its own suggested
plan for the distribution and use of [the
judgment] funds.’’ 25 U.S.C. § 1403(b).
2. Review and approval of a distribution
plan.
A final point regarding the administration
of this case under the Indian Judgment Distribution
Act must be addressed. The government
contends that ‘‘f the Act applies to
any judgment entered in this case, this
[c]ourt’s role terminates after certification of
the judgment to the Secretary of the Treasury
and allocation of appropriated funds for
the judgment.’’ Def.’s Supplemental Br. at
5; id. at 13 (‘‘The court[’]s role in Indian
tribal or group judgment actions is limited to
rendering judgments and certifying those
judgments to the Secretary of the Treasury
for payment pursuant to 31 U.S.C. § 1304.’’).
It avers that ‘‘nder the Act, the Secretary
of the Interior must create and Congress
approves the plan for distribution and use of
the appropriated funds.’’ Id. at 6.
The Indian Judgment Distribution Act ostensibly
provides that the Secretary must
submit to Congress the distribution plan
within one year of the appropriation of the
funds to satisfy the judgment. See 25 U.S.C.
§ 1402(a).30 The distribution plan becomes
effective at the end of the sixty-day period
beginning on the day the plan is submitted to
Congress, unless during that period ‘‘a joint
resolution is enacted disapproving such
plan[ ].’’ 25 U.S.C. § 1405(a). Upon enactment
of a joint resolution, the Secretary
must submit to Congress within thirty days
proposed legislation authorizing distribution
of the funds. 25 U.S.C. § 1405(b).
This aspect of the Indian Judgment Distribution
Act reflects an amendment adopted in
1983 to cure a constitutional defect in the
original terms of the Act. Initially the Distribution
Act incorporated a legislative-veto
provision identical in effect to that deemed
unconstitutional in Immigration & Naturalization
Service v. Chadha, 462 U.S. 919, 103
S.Ct. 2764, 77 L.Ed.2d 317 (1983).31 See
Pub.L. No. 93–134, § 5, 87 Stat. 466, 468
(1973) (Proposed distribution plans submitted
to Congress would take effect unless ‘‘during
such sixty-day period either House adopts a
resolution disapproving such plans.’’). The
curing amendment adopted in 1983 was en-
30. Amendments to the Distribution Act in 1983
extended the time to one year from one hundred
eight days originally provided. See Pub.L. No.
97–458, § 1, 96 Stat. 2512 (Jan. 12, 1983).
31. In Chadha, the Supreme Court faced the question
of the constitutionality of a one-House veto
over executive action. Section 244(a)(1) of the
Immigration and Nationality Act permitted the
Attorney General to suspend the deportation of
an alien if that alien met certain statutory prerequisites.
42 U.S.C. at 923–24. A separate provision
of the Act, Section 244(c)(1), granted to
Congress the power to override and veto the
Attorney General’s suspension of deportation via
a resolution adopted by either the House of Representatives
or the Senate. Id. at 925. The
Supreme Court concluded that the legislative
veto violated the Presentment Clauses of Article
I, Section 7, Clauses 2 and 3, and the Bicameralism
requirement of Article I, Sections 1 and 7.
The Court determined that Congress’ invocation
of the veto power granted to it under the Act
constituted legislative action because it ‘‘alter[ed]
the legal rights, duties and relations of persons,
including the Attorney General, Executive
Branch officials, and [the alien subject to deportation],
all outside the legislative branch.’’ Chadha,
462 U.S. at 951–52, 103 S.Ct. 2764. Absent
the veto provision in Section 244(c)(2), Congressional
overruling of the Attorney General’s suspension
determination could be achieved, if at
all, only through legislation enacted pursuant to
Article I. Id. at 953–54, 103 S.Ct. 2764. Because
the veto was legislative action, ‘‘that action was
subject to the standards prescribed in Article I’’
and could not be exercised outside of the careful
process delineated in that part of the Constitution.
Id. at 956–57, 103 S.Ct. 2764. Accordingly,
the one-House veto was a violation of separation
of powers and was thus unconstitutional.
Id. at 959, 103 S.Ct. 2764.
Notably, the legislative veto contained within
the Indian Judgment Distribution Act was listed
in an Appendix to Justice White’s dissent in Chadha
listing then-current legislative vetoes which
Justice White believed were invalidated by the
majority opinion in Chadha, 462 U.S. at 959–60,
1012, 103 S.Ct. 2764.

A87

90

101 FEDERAL CLAIMS REPORTER

acted prior to the Supreme Court’s decision
in Chadha but subsequent to the decision of
the United States Court of Appeals for the
Ninth Circuit in Chadha v. Immigration &
Naturalization Service, 634 F.2d 408 (9th
Cir.1980) (op. by Kennedy, J.), which decision
was affirmed by the Supreme Court in due
course. The Congressional cure in the form
of requiring a joint resolution to be enacted
to disapprove a proposed distribution plan
satisfied both the Bicameralism and Presentment
Clauses of the Constitution.32
Although Congress cured a constitutional
flaw in the statutory regime for developing
and implementing a distribution plan for
judgments in certain Indian cases, it introduced
another equally significant defect by
legislative action taken in 1995. The provisions
cited by the government calling for the
Secretary to submit a distribution plan to
Congress have been repealed. In 1995, Congress
enacted the Federal Reports Elimination
and Sunset Act of 1995, Pub.L. No. 104–
66, 109 Stat. 707. Intended to ‘‘alleviate the
burden on the Executive Branch [and] to also
allow the [g]overnment to focus its energy on
more important issues, thereby better utilizing
their time,’’ H.R. Rep. No. 104–327
(1995), 1995 WL 683033, at *23, that Act
dictated that certain provisions of law mandating
the submission of reports to Congress
were void as of the date of enactment or four
years thereafter, id. at *25. Among the
reporting requirements that were to be eliminated
four years after the date of enactment
of the law were those mandated by the Distribution
Act under Sections 1402(a) and 1404
of Title 25. 109 Stat. at 734–35 (eliminating
the reporting requirements listed in H.R.
Doc. No. 103–7 (1993)); H.R. Doc. No. 103–7,
at 113 (listing reporting requirements under
25 U.S.C. § 1402(a) and § 1404 as among
those being abrogated). Thus, contrary to
the government’s contentions, the Secretary
is no longer required or allowed to submit its
proposed distribution plan to Congress.
To say the least, application of a repealed
statutory provision will not do. The court is
presented with a statute that has been decimated.
The question arises whether means
of filling the resulting very substantial gap
are available. This court has judicial power
to remit and remand ‘‘appropriate matters’’
to executive officials, see 28 U.S.C.
§ 1491(a)(2) (‘‘In any case within its jurisdiction,
the court shall have the power to remand
appropriate matters to any administrative
or executive body or official with such
direction as it may deem proper and just.’’);
Mendoza v. United States, 87 Fed.Cl. 331,
337–38 (2009) (partially remanding a claim
for pay and benefits to the Office of Personnel
Management, where that office had statutory
authority over aspects of the claim), and
the court has inherent power to effectuate its
judgments. See Chambers v. NASCO, Inc.,
501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d
27 (1991) (‘‘[C]ertain implied powers must
necessarily result to TTT [c]ourts of justice
from the nature of their institutionTTTT
These powers are ‘governed not by rule or
statute but by the control necessarily vested
in courts to manage their own affairs so as to
achieve the orderly and expeditious disposition
of cases.’ ’’ (quoting United States v.
Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed.
259 (1812); Link v. Wabash R.R. Co., 370
U.S. 626, 630–31, 82 S.Ct. 1386, 8 L.Ed.2d
734 (1962))); Riggs v. Johnson Cnty., 73 U.S.
(6 Wall.) 166, 187, 18 L.Ed. 768 (1867) (‘‘[T]he
rule is universal, that if the power is conferred
to render the judgment TTT, it also
includes the power to issue proper process to
32. See Constitution, Jefferson’s Manual, and
Rules of the House of Representatives, H.R. Doc.
No. 108–241, 108th Cong., 2d Sess. § 397 (2005)
(‘‘A[ ] development of the modern practice is the
joint resolution, which is a bill so far as the
processes of the Congress in relation to it are
concerned. With the exception of joint resolutions
proposing amendments to the Constitution,
all these resolutions are sent to the President for
approval and have the full force of law. They
are used for what may be called the incidental,
unusual, or inferior purposes of legislating.’’) (citations
omitted); see also International Brotherhood
of Elec. Workers v. Washington Terminal
Co., 473 F.2d 1156, 1164 (D.C.Cir.1972) (‘‘That a
joint resolution was used [by Congress] to accomplish
the intended result does not detract
from the legislative character of the action.’’)
Congress made similar changes to other laws
to cure the constitutional infirmity identified in
Chadha. See United States v. Amirnazmi, 645
F.3d 564, 581 n. 26 (3d Cir.2011) (discussing an
amendment to the National Emergencies Act to
replace a termination of an emergency by ‘‘concurrent
resolution’’ of Congress with termination
of an emergency by a ‘‘joint resolution.’’).

A88

91


WOLFCHILD v. U.S.
Cite as 101 Fed.Cl. 54 (2011)

enforce such judgment or decree.’’); see also
Pueblo of Laguna v. United States, 60 Fed.
Cl. 133, 135–38 (2004) (addressing various
inherent powers); 28 U.S.C. § 2521(c) (‘‘The
United States Court of Federal Claims shall
have such assistance in the carrying out of its
lawful writ, process, order, rule, decree, or
command as is available to a court of the
United States.’’). Exercising those powers
offers the best prospect of adhering to the
terms of the Distribution Act insofar as it is
legally possible to do so. Accordingly, the
court will issue a remit, remand, and direction
to the Secretary of the Interior to
provide a report to the court within the time
specified in 25 U.S.C. § 1402, submitting his
or her ‘‘plan for the use and distribution of
the funds’’ awarded to the lineal descendants
of the loyal Mdewakanton, 25 U.S.C.
§ 1402(a). Upon receipt of the report, the
court will entertain potential proceedings to
review the report, as provided in RCFC
52.2(f). This disposition will enable the court
to take the ‘‘necessary steps to insure the[ ]
speedy determination’’ of the case, at least to
the extent that any such determination is
possible. Navajo Tribe of Indians v. United
States, 601 F.2d 536, 540 (Ct.Cl.1979).
C. Summary Judgment
Because the court has no direct role in
specifying the individual persons entitled to
share in a judgment in favor of the descendants
of the loyal Mdewakanton as an identifiable
group of Indians, and because the
amount of the funds to which the descendants
are entitled based upon plaintiffs’ and
intervening plaintiffs’ use-restriction claims
has been set by stipulation of the parties,
there is no genuine dispute of any material
fact regarding those claims. As a result,
plaintiffs and intervening plaintiffs are granted
summary judgment on their use-restriction
claims for $673,944, measured as of January
1, 2011.
III. JUDGMENT UNDER RULE 54(b)
Pursuant to RCFC 54(b), this court is authorized
to ‘‘direct entry of a final judgment
as to one or more, but fewer than all claims,’’
upon the finding that ‘‘there is no just reason
for delay.’’ RCFC 54(b). In this case there
is no reason to delay further the final resolution
of the claims regarding the restricteduse
funds. The court will enter final judgment
as to those claims.
Entry of a judgment under Rule 54(b) will
allow the Secretary of the Interior to develop
a roll of eligible claimants and prepare a
distribution plan. Partial final judgments
are expressly authorized under 28 U.S.C.
§ 2517(b), and 31 U.S.C. § 1304(a)(3)(A) provides
for payment from the Judgment Fund
of all those judgments payable under Section
2517. Once the judgment is certified and the
money automatically appropriated, the Secretary
shall begin the work necessary to create
a distribution plan in accordance with the
Indian Judgment Distribution Act.
IV. CONCLUSION
For the reasons stated, the court DENIES
plaintiffs’ and plaintiff-intervenors’ motions
to amend their respective complaints to include
claims grounded in the Indian Non–
Intercourse Act and the 1863 Acts. The Robertson–
Vadnais group of plaintiff-intervenors’
motion to amend to add a takings claim
under the Fifth Amendment is likewise DENIED.
The motions to allow the various
other proffered amendments to plaintiffs’ and
plaintiff-intervenors’ complaints are GRANTED.
The government’s motion to dismiss
claims grounded in the 1863 Acts is GRANTED
as to the Julia DuMarce Group and the
Harley Zephier Group of plaintiff-intervenors.
The government’s motion to dismiss is
otherwise DENIED, as is the government’s
motion to defer consideration under RCFC
56(d).
Plaintiffs’ and plaintiff-intervenors’ motions
for summary judgment are GRANTED
IN PART, i.e., they are granted as to the
claims based upon the use restrictions in the
1888, 1889, and 1890 Appropriation Acts. The
government’s cross-motion for summary
judgment is DENIED. There being no just
reason for delay, and because entry of a final
judgment on the use-restriction claims will
materially advance the ultimate resolution of
this litigation, the court directs entry of final
judgment as to the use-restriction claims
pursuant to RCFC 54(b). The clerk is directed
to enter a final judgment in favor of
plaintiffs and plaintiff-intervenors against the
United States on the use-restriction claims in

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101 FEDERAL CLAIMS REPORTER

the amount of $673,944, measured as of January
1, 2011. Distribution of the judgment
shall be made pursuant to the Indian Tribal
Judgment Funds Use or Distribution Act, 25
U.S.C. §§ 1401–07.
To effectuate the Distribution Act given
the repeal of the provisions providing for
reports to Congress regarding a proposed
distribution plan, the matters of developing a
roll of eligible claimants and a plan for distribution
of the funds awarded shall be and are
remitted and remanded to the Secretary of
the Interior pursuant to 28 U.S.C.
§ 1491(a)(2) and RCFC 52.2(a). In carrying
forward with his or her responsibilities under
the Distribution Act, the Secretary shall provide
reimbursement pursuant to 25 U.S.C.
§ 1403(b) to plaintiffs and intervening plaintiffs
for their costs in preparing and submitting
to the court and the government, genealogies
to establish their status as eligible
claimants. In accord with 28 U.S.C. § 1402,
the Secretary shall complete preparation of
such roll and plan satisfying the criteria
specified in 25 U.S.C. § 1403 within one year
from the date of this decision and judgment.
Upon completion, the Secretary shall submit
a report to the court setting out the proposed
roll and plan.
Plaintiffs are awarded their costs of suit.
It is so ORDERED.
,
Sheldon Peters WOLFCHILD,
et al., Plaintiffs,
v.
UNITED STATES, Defendant.
Nos. 03–2684L, 01–568L.
United States Court of Federal Claims.
Oct. 25, 2011.
Background: Government moved for reconsideration
of a partial final judgment of
the United States Court of Federal
Claims, 101 Fed.Cl. 54, granting awards,
pursuant to the Indian Tribal Judgment
Funds Use or Distribution Act, to approximately
20,750 persons of Indian descent on
their claims for revenue derived from use
of lands reserved for eligible Indians.
Holding: The Court of Federal Claims,
Lettow, J., held that upon Reports Elimination
Act’s repeal of Secretary of the
Interior’s duty under Indian Tribal Judgment
Funds Use or Distribution Act to
submit to Congress a plan for the use and
distribution of the funds to pay a judgment
of the Court of Federal Claims to any
Indian tribe, Court of Federal Claims regained
its general powers of effectuation of
its judgments, including by issuing ‘‘a remit,
remand, and direction to the Secretary
of the Interior to provide a report to
the court within the time specified in Indian
Tribal Judgment Funds Use or Distribution
Act’’.
Motion denied.
1. Federal Courts O1121
Motion for reconsideration of a partial
final judgment is governed by the rigorous
standards of rule governing motions to alter
or amend a judgment. RCFC, Rule 59(e), 28
U.S.C.A.
2. Federal Courts O1121
An amendment of an interlocutory order,
which may be revised at any time before
the entry of a judgment, requires a lesser
showing than a reconsideration of a final
judgment. RCFC, Rule 59(e), 28 U.S.C.A.
3. Federal Courts O1121
Reconsideration of a final judgment is
appropriate primarily on grounds of (1) an
intervening change in the controlling law; (2)
the availability of new evidence; or (3) the
need to correct clear error or prevent manifest
injustice. RCFC, Rule 59(e), 28
U.S.C.A.
4. United States O105
Reports Elimination Act repealed Secretary
of the Interior’s duty under Indian Trib-


A90

In the United States Court of Federal Claims
Nos. 03-2684 L & 01-568 L
SHELDON PETERS WOLFCHILD, ET AL.,
JUDGMENT
v.
THE UNITED STATES
Pursuant to the Published Opinion and Order, filed August 5, 2011, stating that there is
no just reason for delay, as provided in Rule 54(b),
IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 54(b), that judgment is
in favor of plaintiffs and plaintiff-intervenors on the use-restriction claims in the amount of
$554,514.00, measured as of January 1, 2011. Distribution of this judgment shall be made
pursuant to the Indian Tribal Judgment Funds Use or Distribution Act, 25 U.S.C. §§ 1401-07.
Plaintiffs are awarded their costs of suit.
Hazel C. Keahey
Clerk of Court
August 5, 2011 By: s/Lisa L. Reyes
Deputy Clerk
NOTE: As to appeal, 60 days from this date, see RCFC 58.1, re number of copies and listing of
all plaintiffs. Filing fee is $455.00.
Case 1:03-cv-02684-CFL Document 1094 Filed 08/05/11 Page 1 of 1

A91

Case 1:03-cv-02684-CFL Document 1098 Filed 08/22/11 Page 1 of 1

In the United States Court of Federal Claims
Nos. 03-2684 L and 01-568 L

SHELDON PETERS WOLFCHILD,
et al.
CORRECTED JUDGMENT
v.
THE UNITED STATES
Pursuant to the court’s Order filed August 18, 2011, and the corrected Opinion and Order,
attached thereto,
IT IS ORDERED AND ADJUDGED this date, pursuant to Rule 54(b), that judgment is
in favor of plaintiffs and plaintiff-intervenors on the use-restriction claims in the amount of
$673,944.00, measured as of January 1, 2011. Distribution of this judgment shall be made
pursuant to the Indian Tribal Judgment Funds Use or Distribution Act, 25 U.S.C. §§ 1401-07.
Plaintiffs are awarded their costs of suit.
Hazel C. Keahey
Clerk of Court
August 22, 2011 By: s/ Debra L. Samler

Deputy Clerk
NOTE: As to appeal, 60 days from this date, see RCFC 58.1, re number of copies and listing of
all plaintiffs. Filing fee is $455.00.
Case 1:03-cv-02684-CFL Document 1098 Filed 08/22/11 Page 1 of 1

A92

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101 FEDERAL CLAIMS REPORTER

the amount of $673,944, measured as of January
1, 2011. Distribution of the judgment
shall be made pursuant to the Indian Tribal
Judgment Funds Use or Distribution Act, 25
U.S.C. §§ 1401–07.
To effectuate the Distribution Act given
the repeal of the provisions providing for
reports to Congress regarding a proposed
distribution plan, the matters of developing a
roll of eligible claimants and a plan for distribution
of the funds awarded shall be and are
remitted and remanded to the Secretary of
the Interior pursuant to 28 U.S.C.
§ 1491(a)(2) and RCFC 52.2(a). In carrying
forward with his or her responsibilities under
the Distribution Act, the Secretary shall provide
reimbursement pursuant to 25 U.S.C.
§ 1403(b) to plaintiffs and intervening plaintiffs
for their costs in preparing and submitting
to the court and the government, genealogies
to establish their status as eligible
claimants. In accord with 28 U.S.C. § 1402,
the Secretary shall complete preparation of
such roll and plan satisfying the criteria
specified in 25 U.S.C. § 1403 within one year
from the date of this decision and judgment.
Upon completion, the Secretary shall submit
a report to the court setting out the proposed
roll and plan.
Plaintiffs are awarded their costs of suit.
It is so ORDERED.
,
Sheldon Peters WOLFCHILD,
et al., Plaintiffs,
v.
UNITED STATES, Defendant.
Nos. 03–2684L, 01–568L.
United States Court of Federal Claims.
Oct. 25, 2011.
Background: Government moved for reconsideration
of a partial final judgment of
the United States Court of Federal
Claims, 101 Fed.Cl. 54, granting awards,
pursuant to the Indian Tribal Judgment
Funds Use or Distribution Act, to approximately
20,750 persons of Indian descent on
their claims for revenue derived from use
of lands reserved for eligible Indians.
Holding: The Court of Federal Claims,
Lettow, J., held that upon Reports Elimination
Act’s repeal of Secretary of the
Interior’s duty under Indian Tribal Judgment
Funds Use or Distribution Act to
submit to Congress a plan for the use and
distribution of the funds to pay a judgment
of the Court of Federal Claims to any
Indian tribe, Court of Federal Claims regained
its general powers of effectuation of
its judgments, including by issuing ‘‘a remit,
remand, and direction to the Secretary
of the Interior to provide a report to
the court within the time specified in Indian
Tribal Judgment Funds Use or Distribution
Act’’.
Motion denied.
1. Federal Courts O1121
Motion for reconsideration of a partial
final judgment is governed by the rigorous
standards of rule governing motions to alter
or amend a judgment. RCFC, Rule 59(e), 28
U.S.C.A.
2. Federal Courts O1121
An amendment of an interlocutory order,
which may be revised at any time before
the entry of a judgment, requires a lesser
showing than a reconsideration of a final
judgment. RCFC, Rule 59(e), 28 U.S.C.A.
3. Federal Courts O1121
Reconsideration of a final judgment is
appropriate primarily on grounds of (1) an
intervening change in the controlling law; (2)
the availability of new evidence; or (3) the
need to correct clear error or prevent manifest
injustice. RCFC, Rule 59(e), 28
U.S.C.A.
4. United States O105
Reports Elimination Act repealed Secretary
of the Interior’s duty under Indian Trib-

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al Judgment Funds Use or Distribution Act
to submit to Congress a plan for the use and
distribution of the funds to pay a judgment of
the Court of Federal Claims to any Indian
tribe; Reports Elimination Act explicitly terminated
the reporting requirements of the
Indian Tribal Judgment Funds Use or Distribution
Act by including those requirements
on the list prepared by the Clerk of
the House of Representatives of those reports
to be specifically eliminated. Indian
Tribal Judgment Funds Use or Distribution
Act, § 2(a), 25 U.S.C.A. § 1402(a).
5. Federal Courts O1119.1
Court of Federal Claims has inherent
juridical power to effectuate its own judgments.
6. Federal Courts O25
Congress may alter the means by which
courts exercise their power of enforcing
judgments.
7. Federal Courts O1119.1
Upon Reports Elimination Act’s repeal
of Secretary of the Interior’s duty under
Indian Tribal Judgment Funds Use or Distribution
Act to submit to Congress a plan
for the use and distribution of the funds to
pay a judgment of the Court of Federal
Claims to any Indian tribe, Court of Federal
Claims regained its general powers of effectuation
of its judgments, including by issuing
a remit, remand, and direction to the Secretary
of the Interior to provide a report to the
court within the time specified in Indian
Tribal Judgment Funds Use or Distribution
Act. Indian Tribal Judgment Funds Use or
Distribution Act, § 2, 25 U.S.C.A. § 1402.
8. Federal Courts O3.1
Congressional acts delegating or limiting
the inherent powers of federal courts are
strictly construed and require express intent.
9. Statutes O223.4
A remedy furnished by a precisely
drawn and detailed statute preempts a more
general remedy.
10. Federal Courts O1073.1, 1081
Court of Federal Claims’ general grant
of jurisdiction under the Tucker Act and
under the Indian Tucker Act, can only be
displaced by more specific legislation. 28
U.S.C.A. § 1491.
11. Common Law O11
Statutes O239
Common law prevails where statute does
not command, and derogations of common
law by statute are strictly construed.
Erick G. Kaardal, Mohrman & Kaardal,
P.A., Minneapolis, MN, for Wolfchild plaintiffs.
With him on the briefs was William F.
Mohrman, Mohrman & Kaardal, P.A., Minneapolis,
MN.
Stephen Finn, Jody H. Schwarz, Daniel
Steele, and J. Nathanael Watson, Trial Attorneys,
Natural Resources Section, Environment
& Natural Resources Division, United
States Department of Justice, Washington,
D.C., for defendant. Of counsel were Kenneth
Dalton and James Porter, Office of the
Solicitor, Department of the Interior, Washington,
D.C.
Jack E. Pierce, Pierce Law Firm, PA,
Minneapolis, MN, for the Cermak plaintiffs
and for the Stephens, R. Cermak, J. Cermak,
Henderson, Klingberg, Alkire, Arnold, and
Godoy groups of intervening plaintiffs.
Kelly H. Stricherz, Vermillion, SD, for the
Mozak group of intervening plaintiffs.
Garrett J. Horn, Horn Law Office, Yankton,
SD, for the Saul, Trudell, Taylor, Ferris,
Henry, and Vassar groups of intervening
plaintiffs.
Creighton A. Thurman, Yankton, SD, for
the Cournoyer, Robinette, Kimbell, French,
and Wanna groups of intervening plaintiffs.
Elizabeth T. Walker, Walker Associates,
Alexandria, VA, for the anonymous Walker,
the Enyard, and the Kitto groups of intervening
plaintiffs.
Robin L. Zephier, Abourezk & Zephier,
PC, Rapid City, SD, for the Zephier group of
intervening plaintiffs.
Larry Leventhal, St. Paul, MN, for the
Burley group of intervening plaintiffs.
Wood R. Foster, Jr., Siegel, Brill, Greupner,
Duffy & Foster, PA, Minneapolis, MN,

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for the Lafferty, Blaeser, Whipple, and Lowe
groups of intervening plaintiffs.
Bernard J. Rooney, Amherst, WI, for the
Rooney group of intervening plaintiffs.
Scott A. Johnson and Todd M. Johnson,
Johnson Law Group, Minnetonka, MN, for
the Rocque group of intervening plaintiffs
and the Descendants of Joseph Coursolle
group of intervening plaintiffs.
James L. Blair, Renaud Cook Drury Mesaros,
PA, Phoenix, AZ, for the anonymous
Blair group of intervening plaintiffs. With
him on the briefs was Barry P. Hogan, Renaud
Cook Drury Mesaros, PA, Phoenix, AZ.
Gary J. Montana, Montana & Associates,
Osseo, WI, for the Julia DuMarce group of
intervening plaintiffs.
Nicole N. Emerson, Lynn, Jackson, Shultz
& Lebrun, PC, Sioux Falls, SD, for the Garreau
group of intervening plaintiffs.
Douglas Kettering, Kettering Law Office,
Yankton, SD, for the Ke Zephier group of
intervening plaintiffs.
Randy V. Thompson, Nolan, MacGregor,
Thompson & Leighton, St. Paul, MN, for the
Abrahamson group of intervening plaintiffs.
Frances Felix, pro se, Minneapolis, MN,
for herself and members of her immediate
family as intervening plaintiffs.
Royce Deryl Edwards, Jr., Joplin, MO, for
the Robertson–Vadnais group of intervening
plaintiffs.
Rory King, Bantz, Gosch & Cremer, LLC,
Aberdeen, SD, for the Marvel Jean DuMarce
group and the Youngbear group of intervening
plaintiffs.
Brian L. Radke, Radke Law Office, P.C.,
Sioux Falls, SD, for the Schroder group of
intervening plaintiffs.
OPINION AND ORDER
LETTOW, Judge.
This longstanding dispute between the
United States (‘‘the government’’) and approximately
20,750 persons of Indian descent
(collectively ‘‘plaintiffs’’ or ‘‘plaintiffs and
plaintiff-intervenors’’) involves revenue derived
from lands reserved for eligible Indians.
On August 18, 2011, the court directed
entry of a partial final judgment under Rule
54(b) of the Rules of the Court of Federal
Claims (‘‘RCFC’’), awarding plaintiffs and
plaintiff-intervenors $673,944 for their statutory
use-restriction claims. See Wolfchild v.
United States, 101 Fed.Cl. 54, 91 (2011)
(‘‘Wolfchild VIII ’’). To effectuate the distribution
of those funds pursuant to the Indian
Tribal Judgment Funds Use or Distribution
Act (‘‘Distribution Act’’), 25 U.S.C. §§ 1401–
1408, the court remitted and remanded the
task of determining eligible claimants to the
Secretary of the Interior (the ‘‘Secretary’’).
Id. at 92. The court instructed the Secretary
to produce a roll of claimants and plan for
distribution, and to submit within one year a
report of that proposed roll and plan for the
court’s review. Id. On September 2, 2011,
the government filed a motion for reconsideration
of the court’s decision. At the court’s
request, plaintiffs and plaintiff-intervenors
responded. The motion is ready for disposition.
STANDARD FOR RECONSIDERATION
[1] The government requests that the
court undertake reconsideration using the
standards applicable to interlocutory orders.
See Def.’s Mot. for Reconsideration (‘‘Def.’s
Mot.’’) at 1–2; Pl.-Intervenors’ Resp. in
Opp’n to Def.’s Mot. at 5–6. In Wolfchild
VIII, however, the court directed entry of
‘‘final judgment as to one or more, but fewer
than all claims.’’ Wolfchild VIII, 101 Fed.Cl.
at 91 (quoting RCFC 54(b)) (emphasis added).
Hence, the case is no longer in an
interlocutory posture as to those claims.
Consequently, the motion for reconsideration
does not fall under ‘‘RCFC 59(a), [but] rather
TTT under the more rigorous standards of
RCFC 59(e),’’ Wolfchild v. United States, 68
Fed.Cl. 779, 784 (2005) (‘‘Wolfchild II ’’), as a
‘‘motion to alter or amend a judgment,’’
RCFC 59(e) (emphasis added). See White v.
New Hampshire Dep’t of Emp’t Sec., 455
U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325
(1982) (post judgment motions related to the
merits should be considered under Rule 59(e)
of the Rules of Federal Civil Procedure

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(‘‘Fed. R. Civ. P.’’)); 1 Maxus Energy Corp.
v. United States, 31 F.3d 1135, 1139 (Fed.Cir.
1994) (‘‘The universal rule is that, regardless
of its label, any motion made within ten
days 2 of entry of judgment which seeks a
substantive change in the judgment will be
considered a Fed.[ ]R.[ ]Civ.[ ]P. 59(e) motion.’’
(citing Beverly Hills Fan Co. v. Royal
Sovereign Corp., 21 F.3d 1558, 1562 (Fed.Cir.
1994))). Thus, the government’s recitation of
the standards for reconsideration is pro forma
at best and insufficient by any measure
because it inappropriately merges the standards
for reconsideration of final judgments
with those for review of interlocutory orders.
Meanwhile, plaintiff-intervenors’ brief, which
argues that this court should evaluate the
government’s motion as a reconsideration of
an interlocutory order, is simply incorrect.3
[2] RCFC 54(b) sets out the difference
between partial final judgments and interlocutory
orders:
When an action presents more than one
claim for relief TTT the court may direct
entry of a final judgment as to one or
more, but fewer than all, claimsTTTT Otherwise,
any order or other decision, however
designated, that adjudicates fewer than all
the claims TTT does not end the action as
to any of the claims or parties and may be
revised at any time before the entry of a
judgment adjudicating all the claims and
all the parties’ rights and liabilities.
RCFC 54(b) (emphasis added); see also
Florida Power, 66 Fed.Cl. at 95 (citing Exxon
Corp. v. United States, 931 F.2d 874, 877
(Fed.Cir.1991)). An amendment of an interlocutory
order—which ‘‘may be revised at
any time before the entry of a judgment’’—
requires a lesser showing than a reconsideration
of a final judgment. ‘‘At an interlocutory
stage, the common law provides that the
court has power to reconsider its prior decision
on any ground consonant with application
of the law of the case doctrine.’’ Wolfchild
II, 68 Fed.Cl. at 785 (emphasis added).
However, once a final judgment has been
entered, a motion to reconsider that judgment
‘‘seeks a revision which disturbs or
revises legal rights and obligations that were
settled by the previous judgment.’’ Maxus
Energy, 31 F.3d at 1139 (citing St. Paul Fire
& Marine Ins. Co. v. Continental Cas. Co.,
684 F.2d 691, 693 (10th Cir.1982)). Consequently,
‘‘[t]he legal standards for the
amendments of final judgments TTT are not
coextensive with the standards for the review
of non-final orders, which may involve matters
as mundane as evidentiary rulings [or]
extensions of time.’’ Florida Power, 66 Fed.
Cl. at 95–96; cf. Intergraph Corp. v. Intel
Corp., 253 F.3d 695, 698 (Fed.Cir.2001) (departure
from the law of the case requires a
lesser showing than ‘‘the more rigorous requirements
of res judicata ’’).
[3] For reconsideration of a final judgment
under RCFC 59(e), the movant must
make ‘‘a showing of extraordinary circumstances
to justify relief.’’ Crews v. United
States, 424 Fed.Appx. 937, 940 (Fed.Cir.2011)
(citing Fru–Con Constr. Corp. v. United
States, 44 Fed.Cl. 298, 300 (1999), aff’d, 250
F.3d 762 (Fed.Cir.2000) (table)); cf. Infiniti
1. While Fed.R.Civ.P. 59 and RCFC 59 are not
identical, their differences are not material for
determining whether a particular motion should
be deemed as falling under Rule 59(e) or not.
See RCFC 59 rules committee’s notes (2008
Amendment) (‘‘The language of RCFC 59 has
been amended to conform to the general restyling
of the [Fed.R.Civ.P.].’’); Florida Power &
Light Co. v. United States, 66 Fed.Cl. 93, 96
(2005) (‘‘In applying RCFC 59, judges of this
[c]ourt regularly cite to cases applying [Fed.
R.Civ.P.] 59.’’).
2. Fed.R.Civ.P. 59 formerly required a motion
under Rule 59(e) to be filed within ten days The
deadline was amended to 28 days in 2009. See
Fed.R.Civ.P. 59 (advisory committee’s notes on
2009 Amendments). Thereafter, the deadline in
RCFC 59(e) was changed to 30 days and then 28
days, to correspond with the Fed.R.Civ.P. See
RCFC 59 rules committee’s notes (2010 Amendment);
id. (2011 Amendment).
3. The court recognizes that the confusion in the
standards has occurred in both directions. ‘‘On
occasion TTT judges of this [c]ourt have applied
the[ ] stricter standards [of RCFC 59] to nonfinal,
interlocutory orders[, which] blurs the distinction
between final and interlocutory orders.’’
Florida Power, 66 Fed.Cl. at 96. Contrastingly,
Global Computer Enters. v. United States, 88 Fed.
Cl. 466, 468 (2009), posits that both the Court of
Federal Claims and the Federal Circuit have
‘‘utilized the standards set forth in Rule 59(a) to
review Rule 59(e) motions.’’ See also Strategic
Hous. Fin. Corp. v. United States, 87 Fed.Cl. 183,
185–86 (2009) (same).

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Info. Solutions, LLC v. United States, 93
Fed.Cl. 699, 705 (2010) (discussing ‘‘extraordinary
circumstances’’ in the context of
RCFC 60(b)(6)). Thus, reconsideration of a
final judgment is appropriate primarily on
grounds of ‘‘(1) an intervening change in the
controlling law; (2) the availability of new
evidence; or (3) the need to correct clear
error or prevent manifest injustice.’’ Delaware
Valley Floral Grp., Inc. v. Shaw Rose
Nets, LLC, 597 F.3d 1374, 1383 (Fed.Cir.
2010) (applying Eleventh Circuit law regarding
Fed.R.Civ.P. 59(e)); see also Board of
Trs. of Bay Med. Ctr. v. Humana Military
Healthcare Servs., Inc., 447 F.3d 1370, 1377
(Fed.Cir.2006) (same).
ANALYSIS
The government seeks reconsideration of
three aspects of the court’s decision. First,
the government requests the court to reverse
its determination that the Federal Reports
Elimination and Sunset Act of 1995, Pub.L.
No. 104–66, 109 Stat. 707 (‘‘Reports Elimination
Act’’), terminated the Secretary’s duty to
submit distribution plans to Congress under
the Distribution Act. See Wolfchild VIII, 101
Fed.Cl. at 88-91. Second, the government
requests the court to enter final judgment on
all claims in this action. See id. at 91.
Third, the government requests the court to
reconsider its order remitting and remanding
the distribution-plan-formulation task to the
Secretary and providing for possible review
of the Secretary’s action. See id.
A. The Reports Elimination Act
[4] The Distribution Act states that
‘‘[w]ithin one year after appropriation of
funds to pay a judgment of the TTT Court of
Federal Claims to any Indian tribe, the Secretary
of the Interior shall prepare and submit
to Congress a plan for the use and
distribution of the funds.’’ 25 U.S.C.
§ 1402(a). However, the Secretary’s duty to
submit such a plan to Congress was repealed
by the plain terms of the Reports Elimination
Act. See Wolfchild VIII, 101 Fed.Cl. at
90-91. Specifically, the Reports Elimination
Act terminated ‘‘each provision of law requiring
the submittal to Congress TTT of any
annual, semiannual, or other regular periodic
report specified on the list described under
subsection (c).’’ Reports Elimination Act
§ 3003(a), 109 Stat. at 734. Subsection (c)
refers to a list prepared by the Clerk of the
House of Representatives. Id. § 3003(c), 109
Stat. at 735. Included in that voluminous list
of reports to be eliminated is one titled
‘‘Manner of payment of a judgment to any
Indian tribe [authorized by] 25 U.S.C.
1402(a), 1404.’’ H.R. Doc. No. 103–7, at 113
(1993). In short, the Reports Elimination
Act explicitly terminated the reporting requirements
of the Distribution Act by including
those requirements on the list prepared
by the Clerk of the House of Representatives
of those reports to be specifically eliminated.
The Reports Elimination Act thus ‘‘decimated’’
the Distribution Act because ‘‘the Secretary
is no longer required or allowed to
submit proposed distribution plan to Congress.’’
Wolfchild VIII, 101 Fed.Cl. at 90.
The government nonetheless argues that
the Reports Elimination Act does not apply
to the Distribution Act, much less decimate
it. As the government would have it, ‘‘[t]he
language of the Reports Elimination Act did
not terminate ‘all’ reports found in House
Document No. 103–7 but only ‘any’ reports
that were ‘annual, semiannual, or regular
periodic.’ ’’ Def.’s Mot. at 4. Contrary to the
government’s implied argument, however,
Distribution Act reports are ‘‘regular periodic’’
reports. As stated plainly in the House
list, the reports were to be submitted ‘‘180
days after appropriation of funds.’’ H.R.
Doc. No. 103–7, at 113. Such timely submission
is not as ‘‘ad hoc’’ as the government
suggests, Def.’s Mot. at 5, in contrast to
many reports on the list that might be so
characterized, see, e.g., H.R. Doc. No. 103–7,
at 19 (‘‘t any time’’), 62 (‘‘n advance’’),
114 (‘‘[n]o time specified’’), 162 (‘‘s appropriate’’).
This understanding is confirmed by
reports Congress exempted from the Reports
Elimination Act, which otherwise would
have been terminated as ‘‘annual, semiannual,
or regular periodic.’’ See Reports Elimination
Act § 3003(d)(12), 109 Stat. at 735
(citing 22 U.S.C. § 5858) (exempting report
required of the President ‘‘[n]ot less than 15
days before obligating any funds’’ for specified
anti-nuclear-proliferation activities, 22
U.S.C. § 5858(a)).

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In an alternative effort at partial resuscitation,
the government suggests that the court
‘‘sever’’ the Distribution Act language repealed
by the Reports Elimination Act and
find that ‘‘Congress has partially repealed
the Distribution Act only to the extent that
the Secretary is no longer required to submit
distribution plans to Congress under any
particular deadlines.’’ Def.’s Mot. at 13.
The government’s suggestion that somehow
the Reports Elimination Act only repealed
the Distribution Act’s deadlines is without
any textual support and meritless.4 Further,
severance is a concept to guide courts when
holding part of a statute unconstitutional, as
aptly demonstrated by every case cited by
the government on the subject. See Def.’s
Mot. at 8–9 (citing, e.g., Free Enter. Fund v.
Public Co. Accounting Oversight Bd., –––
U.S. ––––, ––––, 130 S.Ct. 3138, 3161–62, 177
L.Ed.2d 706 (2010) (holding tenure provisions
contravened the Constitution’s separation of
powers but were severable from the rest of
the Sarbanes–Oxley Act); New York v. United
States, 505 U.S. 144, 186–87, 112 S.Ct.
2408, 120 L.Ed.2d 120 (1992) (holding taketitle
provision was beyond Congress’ enumerated
powers and inconsistent with the Tenth
Amendment but was severable from the rest
of the Low–Level Radioactive Waste Policy
Amendments Act of 1985); Alaska Airlines,
Inc. v. Brock, 480 U.S. 678, 684–97, 107 S.Ct.
1476, 94 L.Ed.2d 661 (1987) (holding legislative-
veto provision was unconstitutional but
was severable from the rest of the Airline
Deregulation Act of 1978)). Here, though,
the court is confronted with a legislative
repeal, not a constitutional defect. The plain
language of that legislative repeal instructs
the Secretary no longer to submit distribution
plans to Congress, and when ‘‘the intent
of Congress is clear [from the unambiguous
text of a statute], that is the end of the
matter.’’ Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984).
B. Final Judgment
The government’s second request is that
the court enter final judgment on all claims
in this case. The government avers that
‘‘there are no claims left for the [c]ourt to
adjudicate,’’ Def.’s Mot. at 15, save claims for
costs and attorneys’ fees that cannot be determined
until after a final judgment has
entered, id. at 15 n. 2 (citing RCFC 54(d)).
This asserted posture of the case is both
incorrect and inconsistent with the government’s
previously expressed legal position.
See Def.’s Mot. to Stay Pls.’ Mots. for Interim
Determination of the United States’ Liability
for Attorney’s Fees, ECF No. 880;
Order of August 5, 2011 (granting Def.’s
Mot. to Stay). At a minimum, issues remain
regarding the government’s liability for attorneys’
fees as well as recompense for
plaintiffs’ and plaintiff-intervenors’ extensive
evidentiary submissions that they are lineal
descendants of the loyal Mdewakanton
Sioux. See Wolfchild VIII, 101 Fed.Cl. at
88-90.
C. Review of the Distribution Plan
The government lastly requests the court
to reconsider its order remitting and remanding
the formulation of a distribution
plan to the Secretary and directing the Secretary
to submit that plan to the court for
review. The government argues that, assuming
the Reports Elimination Act did indeed
eliminate the Secretary’s submission of
distribution plans to Congress, it does not
follow that oversight of such plans shifts to
this court. Instead, the government contends
that any review of the Secretary’s action
would fall to the federal district courts
under the Administrative Procedure Act. See
Def.’s Mot. at 12–14. In contrast, plaintiff
and plaintiff-intervenors argue that the court,
per its determination in Wolfchild VIII, has
power to remand the distribution-plan-formulation
task to the Secretary and to address
any challenges to the resulting report. See
Pl.’s Resp. to Mot. for Reconsideration at 4–
5; see also 28 U.S.C. § 1491(a)(2) (‘‘In any
4. The government’s brief subsequently contends
that this court’s direction to the Secretary to
report on its distribution plan one year from the
entry of judgment in Wolfchild VIII is inconsistent
with the Distribution Act’s requirement that
such a report be submitted ‘‘[w]ithin one year
after appropriation of funds to pay a judgment.’’
25 U.S.C. § 1402(a); see Def.’s Mot. at 18–20.
This is an unavailing proposition given the government’s
assertion that the Distribution Act’s
deadlines were eliminated.

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case within its jurisdiction, the court shall
have the power to remand appropriate matters
to any administrative or executive body
or official with such direction as it may deem
proper and just.’’); 28 U.S.C. § 2521(c) (‘‘The
United States Court of Federal Claims shall
have such assistance in the carrying out of its
lawful writ, process, order, rule, decree, or
command as is available to a court of the
United States.’’); RCFC 52.2(f) (governing
remand orders).
[5] As the court explained in its earlier
opinion, this court has inherent juridical power
to effectuate its own judgments. See
Wolfchild VIII, 101 Fed.Cl. at 90-91 (citing
Chambers v. NASCO, Inc., 501 U.S. 32, 43,
111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Link
v. Wabash R.R. Co., 370 U.S. 626, 630–31, 82
S.Ct. 1386, 8 L.Ed.2d 734 (1962); Riggs v.
Johnson County, 73 U.S. (6 Wall.) 166, 187,
18 L.Ed. 768 (1867)). Indeed, it is fundamental
that this ‘‘court may take action to
protect, secure, and enforce a judgment TTT
so long as the court had juridical power to
issue that judgment.’’ Infiniti, 93 Fed.Cl. at
703 (2010) (citing Peathingy v. Thomas, 516
U.S. 349, 356, 116 S.Ct. 862, 133 L.Ed.2d 817
(1996) (‘‘Without jurisdiction to enforce a
judgment entered by a federal court, the
judicial power would be incomplete and entirely
inadequate to the purposes for which it
was conferred by the Constitution.’’); Riggs,
73 U.S. at 187 (‘‘[T]he rule is universal, that
if the power is conferred to render the judgment
or enter the decree, it also includes the
power to issue proper process to enforce
such judgment or decree.’’ (alteration added));
Heartland–By–Prods., Inc. v. United
States, 424 F.3d 1244, 1252 (Fed.Cir.2005)
(‘‘Federal courts hold the inherent power to
enforce their prior judgments.’’)).
[6] It is also fundamental that Congress
may alter the means by which courts exercise
their power of enforcing judgments. See
Virginia v. West Virginia, 246 U.S. 565, 600–
06, 38 S.Ct. 400, 59 L.Ed. 1272 (1918) (Congress
may create ‘‘additional process relevant
to the enforcement of judicial authority’’ and
‘‘new remedies TTT to meet the exigency
occasioned by the judicial duty of enforcing a
judgment against a tate,’’ id. at 603, 38
S.Ct. 400); Riggs, 73 U.S. at 187–88 (‘‘Congress
TTT possesses the uncontrolled power
to legislate in respect both to the form and
effect of executions and other final process to
be issued in the [f]ederal courts.’’); cf. id. at
195 (‘‘The Constitution itself becomes a
mockery TTT if the tate legislatures may at
will annul the judgments of the [f]ederal
courts, and the nation is deprived of the
means of enforcing its own laws by the instrumentality
of its own tribunals. Congress
may adopt tate laws for such a purpose
directly, or confide the authority to adopt
them to the [f]ederal courts, but their whole
efficacy when adopted depends upon the enactments
of Congress.’’ (emphasis added)
(footnote omitted)).
[7] When Congress initially enacted the
Distribution Act, it specifically displaced this
court as the final arbiter of distributions to
effectuate judgments in favor of Indians.
Congress subsequently removed itself from
this role, however, with the repeal of those
effectuation-related provisions by the Reports
Elimination Act. That removal did not
leave a juridical vacuum, contrary to the
government’s position. Instead, this court
simply resumed its general powers of effectuation
of its judgments.
[8] This resumption of powers explains
why there is no foundation for the government’s
suggestion that review of the Secretary’s
action to establish a distribution plan
inheres in a district court under the Administrative
Procedure Act. The sort of displacement
the government suggests would require
specific statutory provisions. First, congressional
acts delegating or limiting the inherent
powers of federal courts are strictly construed
and require express intent. See Miller
v. French, 530 U.S. 327, 340, 120 S.Ct.
2246, 147 L.Ed.2d 326 (2000) (‘‘[W]e should
not construe a statute to displace courts’
traditional equitable authority absent the
clearest command or an inescapable inference
to the contrary.’’ (quoting Califano v.
Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545,
61 L.Ed.2d 176 (1979); Porter v. Warner
Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086,
90 L.Ed. 1332 (1946)) (internal citations and
quotation marks omitted)); NASCO, 501 U.S.
at 46–48, 111 S.Ct. 2123 (federal statutes and

A99

99


WOLFCHILD v. U.S.Cite as 101 Fed.Cl. 92 (2011)

the Federal Rules of Civil Procedure have
not displaced the federal courts’ inherent
power to sanction bad-faith conduct by litigants,
for ‘‘ ‘we do not lightly assume that
Congress has intended to depart from established
principles’ such as the scope of a
court’s inherent power,’’ id. at 47, 111 S.Ct.
2123 (quoting Weinberger v. Romero–Barcelo,
456 U.S. 305, 313, 102 S.Ct. 1798, 72
L.Ed.2d 91 (1982))); Wingo v. Wedding, 418
U.S. 461, 470 n. 11, 94 S.Ct. 2842, 41 L.Ed.2d
879 (1974) (delegation of federal district court
powers to conduct hearings to magistrate
judges must be ‘‘express and circumscribed
with procedural safeguards’’ and ‘‘reference
to a master shall be the exception and not
the rule’’); Crowell v. Benson, 285 U.S. 22,
46, 52 S.Ct. 285, 76 L.Ed. 598 (1932) (‘‘[T]he
statute contains no express limitation attempting
to preclude the court, in proceedings
to set aside an order [of the U.S. Employees’
Compensation Commission] as not in
accordance with law, from making its own
examination and determination of facts whenever
that is deemed to be necessary to enforce
a constitutional right properly asserted.
As the statute is to be construed so as to
support rather than to defeat it, no such
limitation is to be implied.’’ (emphasis added)
(citations omitted)); Procter & Gamble
Co. v. Kraft Foods Global, Inc., 549 F.3d 842,
848 (Fed.Cir.2008) (Congress would not abrogate
a trial court’s inherent power to grant a
stay ‘‘sub silentio.’’).
[9, 10] Second, in comparable fashion,
this court’s general grant of jurisdiction under
the Tucker Act and here, under the
Indian Tucker Act, can only be displaced by
more specific legislation. See, e.g., United
States v. Fausto, 484 U.S. 439, 454–55, 108
S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that
the Tucker Act was displaced by the ‘‘comprehensive
and integrated review scheme’’ of
the Civil Service Reform Act, id. at 454, 108
S.Ct. 668); St. Vincent’s Med. Ctr. v. United
States, 32 F.3d 548, 549–50 (Fed.Cir.1994)
(concluding that the Tucker Act was displaced
by the comprehensive administrative
and district-court review procedures provided
by the Medicare Act); Puget Sound Power
& Light Co. v. United States, 23 Cl.Ct. 46,
56 (1991) (deciding that the Tucker Act was
displaced by the Northwest Power Act), appeal
dismissed, 944 F.2d 912 (Fed.Cir.1991)
(Table).5
[11] Third, and most generally, common
law prevails where statute does not command,
and derogations of common law by
statute are strictly construed. ‘‘The Supreme
Court has established that ‘courts
may take it as a given that Congress has
legislated with an expectation that the common
law principle will apply except when the
statutory purpose to the contrary is evident.’
’’ Avgoustis v. Shinseki, 639 F.3d
1340, 1342 (Fed.Cir.2011) (quoting Astoria
Fed. Savs. & Loan Ass’n v. Solimino, 501
U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96
(1991)); see also Rios v. Nicholson, 490 F.3d
928, 931 (Fed.Cir.2007) (‘‘Statutes which invade
the common law TTT are to be read with
a presumption favoring the retention of longestablished
and familiar principles.’’ (alteration
in original) (quoting Isbrandtsen Co. v.
Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 96
L.Ed. 1294 (1952))). See generally 3 Norman
J. Singer & J.D. Shambie Singer, Statutes
and Statutory Construction § 61:2 (7th
ed. 2008).
In sum, the Distribution Act modified this
court’s powers to oversee its judgments, but
the Reports Elimination Act elided that aspect
of the Distribution Act. As a consequence,
this court regained its general powers
to effectuate its judgments, including by
issuing ‘‘a remit, remand, and direction to the
Secretary of the Interior to provide a report
to the court within the time specified in 25
U.S.C. § 1402.’’ Wolfchild VIII, 101 Fed.Cl.
at 91.
CONCLUSION
For the reasons stated, the government’s
motion for reconsideration is DENIED.
It is so ORDERED.
,
5. This principle reflects the general rule that ‘‘a
remedy furnished by a precisely drawn and detailed
statute preempts a more general remedy.’’
Puget Sound, 23 Cl.Ct. at 56–57 (1991) (citing
Brown v. General Servs. Admin., 425 U.S. 820,
834, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Stonite
Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561,
566–67, 62 S.Ct. 780, 86 L.Ed. 1026 (1942)).

A100

CERTIFICATE OF COMPLIANCE
(Nos. 2012-5035, -5036, -5043)
I certify that:
1. Pursuant to Fed. R. App. P. 32(a)(7)(C), that the attached answering brief is:
Proportionately spaced, has a typeface of 14 points or more and contains
_13,975 words (exclusive of the table of contents, table of authorities,
addenda, and certificates of counsel).
May 25, 2012 /s John L. Smeltzer
________________ ______________________________
Date John L. Smeltzer

CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Opening Brief for the
United States as Appellant have been served by United States mail, this 25th
day of May, 2012, upon the following counsel of record:
ERICK G. KAARDAL
Mohrman & Kaardal P.A.
33 South Sixth Street, Suite 4100
Minneapolis, MN 55402
GARRETT J. HORN
Horn Law Office
P.O. Box 886
Yankton, SD 57078
RANDY VERN THOMPSON
Nolan, Thompson & Leighton
5001 American Blvd. West, Suite 595
Bloomington, MN 55437
CREIGHTON A. THURMAN
P.O. Box 897
Yankton, SD 57078
ROBIN L. ZEPHIER
Abourezk & Zephier
P.O. Box 9460
Rapid City, SD 57709
GARY JOHN MONTANA
Montana & Associates
N 12923 North Prairie Road
Osseo, WI 54758
WOOD R. FOSTER, JR.,
Siegel Brill Greupner Duffy
100 Washington Avenue South
Suite 1300
Minneapolis, MN 55401
SCOTT ALLEN JOHNSON
Johnson Law Group
10850 Wayzata Boulevard, Suite 250
Minnetonka, MN 55305
KELLY STRICHERZ
213 Forest Avenue
P.O. Box 187
Vermillion, SD 57069
LARRY B. LEVENTHAL
Larry Leventhal & Associates
319 Ramsey Street,
St. Paul, MN 55102
JACK E. PIERCE
Pierce Law Firm, P.A.
6040 Earle Brown Drive, Suite 420
Minneapolis, MN 55430
ELIZABETH T. WALKER
Walker Associates
429 North St. Asaph Street,
Alexandria, VA 22314
NICOLE NACHTIGAL EMERSON
Lynn, Jackson, Shultz & Lebrun
141 North Main Avenue, Suite 900
P.O. Box 2700
Sioux Falls, SD 57101
JAMES LAWRENCE BLAIR
Renaud Cook Drury Mesaros, PA
1 North Central Avenue
Phelps Dodge Tower - Suite 900
Phoenix, AZ 85004
PHILIP WILLIAM MORGAN
757 7th Street
P.O. Box 901
Britton, SD 57430
REBECCA ELIZABETH FELIX
1160 NW Portland Avenue, No. 2
Bend, OR 97701
BERNARD JOSEPH ROONEY
84 Park Avenue
Larchmont, NY 10538
/s John L. Smeltzer
______________________________
John L. Smeltzer
Attorney
United States Department of Justice
Post Office Box 7415
Washington, DC 20044
[phone]
[e-mail]