The 1934 Indian Reorganization Act and Indigenous Governance: A ... opted the pueblo-loyal governor. While the governor was the de jure leader of a pueblo, ... Mdewakanton Sioux Elder Continues Her Struggle. Indian Country ... scholar.lib.vt.edu/theses/available/etd-07012004
An act to authorize the Secretary of the Interior to ascertain the amounts due to citizens of the United States for supplies furnished to the Sioux or Dakota Indians of Minnesota subsequent to June first, eighteen hundred and sixty-one, and prior to the massacre of August, eighteen hundred and sixty-two, and providing for the payment thereof.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior be, and is hereby, authorized and directed to investigate and determine the amounts due licensed traders, citizens of the United States, for supplies furnished, in the course of trade and business, to the Sioux or Dakota Indians of Minnesota subsequent to June first, eighteen hundred and sixty-one, and prior to the outbreak and massacre by said Indians in August, eighteen hundred and sixty-two, and for which damages were not a warded by the commissioners appointed under the act entitled “An act for the relief of persons for damages sustained by reason of depredations and injuries by certain bands of Sioux Indians”, approved February sixteenth, eighteen hundred and sixty-three, for the reason that said act limited the action of said commissioners to claims arising from depredations, and did not authorize them to act upon claims arising upon contract or upon accounts for supplies furnished; and the said claims, when ascertained, shall be paid by the Secretary of the Interior out of the money hereby appropriated.
That for the purpose of enabling the Secretary of the Interior to carry out the provisions of the foregoing section the sum of one hundred thousand dollars, or so much thereof as may be necessary, be, and the same is hereby, appropriated out of any money in the Treasury not otherwise appropriated: Provided, however, That said sum shall be charged to the unpaid annuities stipulated to be paid to the said Sioux Indians under treaties, but abrogated and annulled by the act approved February sixteenth, eighteen hundred and sixty-three.
Approved, March 3, 1885.
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They made us many promises, more than I can remember. But they kept but one - They promised to take our land...and they took it. -- Chief Red Cloud Tunkashila, Let us stand Coalition strong in protection of our lands, our beliefs, our Sacred Spirituality, and our traditional Indigenous ways of life. We stand in strong support of Indigenous Rights and the Inherent Allodial title of Dakota, Lakota, and Nakota Lands. Let us reclaim what is ours and work diligently to preserve what we now have. End Dakota/Lakota/Nakota Ethnic Cleansing! This website was created to Honor of our Ancestors, our Traditions, Elders and Children, and to provide a future for our generations to come. That piece of red, white and blue cloth stands for a system and a country that does not honor it's own word...If it stood for honor and truth, it would remember our treaties and give them the appropriate place under international law. But it doesn't. It dishonors its own word and violates its treaties... In Honor of Tony Black Feather (Died August 11 2004)
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1 In the United States Court of Federal Claims No. 03-2684L (Filed: October 27, 2004) ************************************ ) Subject matter jurisdiction; RCFC 12(b)(1); SHELDON PETERS WOLFCHILD, et al., ) amici curiae; standing; Tucker Act; 28 ) U.S.C. § 1491(a)(1); Indian Tucker Act, Plaintiffs, ) 28 U.S.C. § 1505; money-mandating ) duties; statute of limitations; jurisdiction v. ) over claims of breach of fiduciary duty; ) Indian Trust Accounting Statute; summary UNITED STATES, ) judgment; RCFC 56; anonymous plaintiffs ) Defendant. )) ************************************ Erick G. Kaardal, Mohrman & Kaardal, P.A., Minneapolis, MN, for plaintiffs. With him on the briefs were William F. Mohrman and Eric L. Lipman. Benjamin Longstreth, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice. With him on the briefs was Thomas L. Sansonetti, Assistant Attorney General, Environment and Natural Resources Division. James M. Schoessler, Jacobsen, Buffalo, Schoessler & Magnuson, Ltd., St. Paul, MN, for amicus curiae Lower Sioux Indian Community in Minnesota. Greg S. Paulson, Blue Dog, Olson & Small, P.L.L.P., Minneapolis, MN, for amicus curiae Shakopee Mdewakanton Sioux (Dakota) Community. With him on the briefs was Andrew M. Small. Joe Halloran, Jacobsen, Buffalo, Schoessler & Magnuson, Ltd., St. Paul, MN for amicus curiae Prairie Island Indian Community in Minnesota. Raymond Cermack, Sr., pro se, as amicus curiae. 2 OPINION AND ORDER LETTOW, Judge. This dispute concerns the United States’ management of property originally provided for the benefit of those Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862. The property at issue consists of land, improvements to land, and monies derived from special funds provided by the United States in appropriations statutes enacted in 1888, 1889, and 1890. For approximately ninety years, the property acquired by and generated from the specially appropriated funds was maintained by the United States for the use and benefit of the loyal Mdewakanton and their lineal descendants. However, in 1980, a statute was enacted that was used by the Department of Interior as a basis for disbursing the property to three Indian communities that are not exclusively comprised of lineal descendants of the loyal Mdewakanton. Non-descendants allegedly comprise a majority of the members of two of the communities. The plaintiffs aver they are lineal descendants of the loyal Mdewakanton, and they bring before the court claims of breach of fiduciary duty and contract by the United States. The government has 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 have filed a cross-motion for partial summary judgment that a trust exists for the benefit of the lineal descendants, that the government has breached its fiduciary duties, and that a contract exists and has been breached. Over 250 individuals are currently named plaintiffs in this action. The plaintiffs have filed a motion for leave to amend their complaint to include yet additional named and anonymous plaintiffs, claiming with respect to the anonymous plaintiffs that a substantial number of them are members of the communities that now hold the property, that the remainder of them are applicants for membership, and that their membership status in those communities would be put in jeopardy if disclosure were to be made that they were plaintiffs in this action. Motions for leave to participate as amicus curiae have been filed on behalf of each of the three Indian communities that have succeeded to property at issue in this case, viz., the Lower Sioux Indian Community in Minnesota, the Shakopee Mdewakanton Sioux (Dakota) Community, and the Prairie Island Indian Community in Minnesota. The movant communities seek to inform the court of the basis for their interest in the property and their interest in preserving their alleged authority as sovereigns over the property. Plaintiffs oppose these motions. In addition, one individual, Raymond Cermak, Sr., has moved for leave to participate as an amicus curiae, averring that he is a lineal descendant of the loyal Mdewakanton and that he previously received direct payments of trust monies from the government as a lineal descendant. Plaintiffs also oppose Mr. Cermak’s motion. For the reasons stated below, the government’s motion to dismiss is granted in part and denied in part. The plaintiffs’ cross-motion for partial summary judgment is also granted in part and denied in part. The plaintiffs’ motion for leave to amend their complaint is granted, as is the 1 The facts set forth do not constitute findings of fact by the court. They are drawn from the Plaintiffs’ Complaint (“Compl.”) and First Amended Complaint (“Am. Compl.”), the recitations of the parties in their oral arguments, motions, responses, replies, and other briefs, and from the materials provided to the court by amici curiae. The factual recitation has been presented to provide a basis for analysis of the issues raised in this case. 3 motion for leave for some plaintiffs to participate anonymously. The motions by each of the communities to participate as amicus curiae are granted as is the motion by Raymond Cermak, Sr. TABLE OF CONTENTS BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The 1862 Sioux Outbreak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The 1886 Census and the 1888, 1889, and 1890 Appropriations Acts . . . . . . . . . . . . . . . 5 Trust Creation and Land Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Evolution of the Three Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The 1980 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 This Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Standards for Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. Statutory Predicates for Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 B. Nature of Plaintiffs’ Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1. Breach of fiduciary duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 (a) Existence of a trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 (b) The 1980 Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 (c) Money-mandating duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2. Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 C. Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. The Menominee Tribe Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Partial Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Amendment of the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 A. Additional Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 B. Anonymous Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Future Proceedings Respecting Class Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Potential Summons under RCFC 14(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 BACKGROUND1 2The Minnesota Sioux were also known as the Sioux of the Mississippi. By contrast, the Teton, Yankton, and Yanktonais Sioux were known as the Sioux of the Missouri. 3An annuity had been granted in perpetuity pursuant to a treaty made by the United States with certain chiefs and bands of the Sioux, perhaps only the Mdewakaton Band, on September 29, 1837. See 7 Stat. 538. A separate treaty was made between the United States and the Mdewakanton and Wahpakoota Bands of the Minnesota Sioux on August 5, 1851, 10 Stat. 954, which, among other things, provided for a supplemental annuity payable for a fifty-year term. See Medawakanton, 57 Ct. Cl. at 360-61. The Sisseton and Wahpeton Bands signed a comparable treaty on July 23, 1851. Id. After the treaties were nullified, the annuities ceased. Id. Eventually, however, the tribal bands recovered the present value of the annuities: the Sisseton and Wahpeton Bands by a 1906 Act of Congress enabling them to sue in the Court of Claims and by a judgment in Sisseton and Wahpeton Bands v. United States, 42 Ct. Cl. 416, 432 (1907), and the Mdewakanton and Wahpakoota through a special act of Congress approved March 4, 1917 and a consequent case in the Court of Claims. See 39 Stat. 1195 (“An act for the restoration of annuities to the Medawankanton and Wahpakoota (Santee) Sioux Indians, declared forfeited by the Act of February 16, 1863"); Medawakanton, 57 Ct. Cl. at 358.
4 The 1862 Sioux Outbreak Prior to 1862, the Minnesota Sioux consisted of 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 the “Santee Sioux”), all of whom lived along the Minnesota River. See Medawakanton and Wahpakoota Bands of Sioux Indians v. United States, 57 Ct. Cl. 357, 359-61 (1922).2 In August of 1862, young traditionalists in these four bands waged war against the United States, killing more than 500 white settlers and damaging substantial property. See id. at 362; see also Pls.’ Ex. 36, at 187 (William Watts Folwell, A History of Minnesota (vol. II, 1924)). After defeating the bands, the United States punished the Sioux by nullifying its treaties with them, among other things voiding annuities that had been granted as part of the terms of the treaties. See Act of Feb. 16, 1863, 12 Stat. 652.3 The government also moved the Sioux to tracts of unoccupied land outside the limits of the thenexisting states, including Minnesota and Iowa, which originally resulted in their moving to Dakota Territory. Medawakanton, 57 Ct. Cl. at 364-65. In February 1866, they relocated to a new reservation in Nebraska. Id. Some of the Sioux, however, had been loyal to the United States during the Sioux Outbreak, and these loyalists were permitted to stay on the Minnesota lands provided for the Sioux under the treaties. After Congress stripped the Sioux of their Minnesota lands, it authorized the Department of Interior to allocate up to eighty acres of that land to each loyalist: [T]he Secretary of the Interior is hereby authorized to set apart of the public lands, not otherwise appropriated, eighty acres in severalty The statutory text pertaining 4 to the loyal Mdewakanton provided as follows: For the support of the full-blood Indians in Minnesota, belonging to the Medawakanton 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 June 29, 1888, 25 Stat. 217, 228-29. 5 to each individual of the before-named bands who exerted himself in rescuing whites from the late massacre [by] said Indians. The land so set apart . . . shall be an inheritance to said Indians and their heirs forever. Act of Feb. 16, 1863, 12 Stat. at 654. Recognizing further that many of the loyal Sioux had lost their homes and property because of their aid to whites, and that “now they cannot return to their tribe . . . or they would be slaughtered for the part they took in the outbreak,” Cong. Globe, 38th Cong., 1st Sess. 3516 (1864), Congress appropriated $7500 for the loyal Sioux in 1865. Act of Feb. 9, 1865, 13 Stat. 427. The 1886 Census and the 1888, 1889, and 1890 Appropriations Acts The allocation of land to the loyal Sioux was not successfully implemented, and Congress further provided for the loyal Mdewakanton in 1888, when it authorized the Department of Interior to expend funds for them. Congress recognized that when it declared the Sioux’s treaties, annuities, and allocation of land forfeited, it failed to make an exception for the loyal Mdewakanton, whose annuity was valued at approximately $1,000,000. 19 Cong. Rec. H2976- 77 (daily ed. Apr. 14, 1888) (statement of Rep. MacDonald). As a result of this oversight, many loyal Mdewakanton were rendered homeless. Id. at 2977. The 1888 Act provided an appropriated amount of $20,000 to be spent by the Secretary of Interior in purchasing land, cattle, horses, and agricultural implements for those full-blooded Mdewakanton who resided in Minnesota on May 20, 1886 and who had severed their tribal relations.4 Because of the administrative difficulty of determining which Mdewakanton were loyal during the Sioux Outbreak, Congress determined that presence in Minnesota on May 20, 1886 served as an The pertinent portion of the 5 1889 appropriation act reads as follows: For the support of the full-blood Indians in Minnesota heretofore belonging to the Medawakanton 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 1888 Act]: Provided, That if the amount in this paragraph appropriated . . . shall not be expended within the fiscal year for which either sum was appropriated, neither shall be covered into the Treasury, but shall, notwithstanding, be used and expended for the purposes for which the same amount was appropriated and for the benefit of the above-named Indians: And provided also, That the Secretary of the Interior may appoint a suitable person to make the above-mentioned expenditure under his direction; and all of said money which is to be expended for lands, cattle, horses, implements, seeds, food, or clothing shall be so expended that each of the Indians in this paragraph mentioned shall received [sic], as nearly as practicable, an equal amount in value of this appropriation and that made by said act of June twenty-ninth, eighteen hundred and eighty-eight: And provided further, That as far as 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. Id. 6
adequate proxy for “friendliness.” Pls.’ Ex. 16 (Memorandum from Nat’l Tech. Servs. Found. to Bureau of Indian Affairs (October 1979)). A similar appropriation act in 1889 added a further sum of $12,000 and included a provision calling for each loyal Mdewakanton to receive as close to an equal amount as practicable. Act of Mar. 2, 1889, 25 Stat. 980, 992-93.5 In a third appropriation act in 1890, Congress added $8,000 and adopted the same substantive provisions as the 1889 Act, except that it expressly stated that the further appropriated amount was to support Indians of both “full and mixed blood.” Act of Aug. 19, 1890, 26 Stat. 336, 349. Overall, the value of the appropriations 6Appropriations to the loyal Mdewakanton under the 1888, 1889, and 1890 Acts were subtracted from the damage award entered in favor of the Mdewakanton in 1922 by the Court of Claims in recompense for the nullified annuities. Medawakanton, 57 Ct. Cl. at 367. 7Three prior acts had also allocated funds for the purchase of lands. See Act of July 4, 1884, 23 Stat. 1887; Act of Mar. 3, 1885, 23 Stat. 375; Act of May 15, 1886, 24 Stat. 39. The 1884 and 1885 Acts expressly required the beneficiaries to be “those of the Mdewakanton Band, who remained faithful to the whites during the outbreak of 1862-3 . . . and for the descendants of those friendly Indians.” Def.’s Ex. 4, at 275 n.4 (Roy W. Meyer, History of the Santee Sioux (1993)) (“History of the Santee”). Walter McLeod was appointed on October 16, 1886 to purchase the lands, and he paid $4,103 for 339.70 acres of land. Pls.’ Ex. 23, at 111 (1891 Comm’r of Indian Affairs Ann. Rep.). Much of this land was deeded to individual Indians in fee simple. History of the Santee at 279. Some of the beneficiaries sold the land, mortgaged it, or removed its resources. Id. at 283; Pls.’ Ex. 18, at 3 (Letter from Ass’t Comm’r of Indian Affairs to Sec’y of Interior (Sept. 30, 1915)). Robert Henton was appointed on October 20, 1888 to 7 amounted to $20,000 awarded in 1888, $12,000 in 1889, and $8,000 in 1890. The latter two acts called for funds to carry over if the Department of Interior did not spend them by the end of the fiscal year, ensuring that the loyal Mdewakanton would benefit from the appropriation.6 To ascertain which Mdewakanton lived in Minnesota on May 20, 1886, U.S. Special Agent Walter McLeod took a census listing all of the full-blood Mdewakanton, which was mailed to the Commissioner of Indian Affairs on September 2, 1886. See Pls.’ Ex. 1 (Enrollment of the Medawankanton Band of Sioux Indians of Minnesota); Pls.’ Ex. 15 (Letter from Special Agent Walter McLeod to Commissioner of Indian Affairs (Sept. 2, 1886)). 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. See, e.g., Pls.’ Ex. 20, at 2 (Memorandum from the Acting Associate Solicitor to the Field Solicitor (Aug. 19, 1971)). On January 2, 1889, Robert B. Henton, Special Agent for the Bureau of Indian Affairs, took a second census of those Mdewakanton living in Minnesota since May 20, 1886. Id. This second census was done at the request of the Secretary of the Interior, who wanted “information as complete as possible.” Pls.’ Ex. 17, at 2 (Letter from Secretary of Interior to Commissioner of Indian Affairs (Oct. 12, 1888)). The McLeod and Henton listings (together, “the 1886 census”) were used to determine who would receive the benefits of the amounts appropriated under the 1888, 1889, and 1890 Acts. The funds provided by these Acts were used for the purchase of land, agricultural implements, livestock, and goods for the loyal Mdewakanton. The lands purchased were commonly called the “1886 lands” to reflect the effective date of the census that defined the beneficiaries. The lands were purchased in three separate 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). H.R. Rep. No. 96-1409, at 4 (1980).7 make additional purchases, and he spent $16,581.42 in acquiring 1,100.99 acres of land. Pls.’ Ex. 23, at 111 (1891 Comm’r of Indian Affairs Ann. Rep.). This land was retained by the United States on behalf of the Mdewakanton to avoid repeating the sale, mortgage, and depletion of prior lands. History of the Santee at 283. 8 Trust Creation and Land Assignments Rather than conveying the acquired land directly to the loyal Mdewakanton for whom the land had been purchased, the Department of Interior, fearing sale or destruction of the property, kept title in the United States’ name but made arrangements for the lands to be made available to the loyal Mdewakanton. The mechanism chosen for that purpose was an assignment system by which a specific parcel of land would be assigned to a particular beneficiary who could use and occupy the land as long as he or she wanted, but if the assignee did not use it for two years, it would be reassigned. Because the legislation called upon the Secretary of Interior to expend the funds as he deemed best, and in the absence of legislation requiring transfer of title, the assignment policy persevered over the years. See, e.g., Pls.’ Ex. 18, at 6 (Letter from Assistant Comm’r of Indian Affairs to Sec’y of Interior (Sept. 30, 1915)). Some of the land purchased for the Mdewakanton was not arable; one parcel was next to a brickyard where many Mdewakanton worked, and its only usable resource was clay. At the request of the Mdewakanton, Congress considered a bill permitting the Secretary of Interior to sell this tract of land. In debating an amendment to require each Mdewakanton’s consent to the sale, which ultimately passed, Senator Pettigrew argued that “t is 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.” 34 Cong. Rec. 2523 (1901). The bill providing for the land sale was enacted, and the Secretary was empowered to sell the land provided that “the written consent of the adult Indians residing in Redwood County, Minnesota, shall first be given.” Act of Feb. 25, 1901, 31 Stat. 805, 806. The 1901 Act effectively constituted an explicit recognition by Congress that a trust had been created and funded by the appropriations made under the 1888, 1889, and 1890 Acts. By requiring the consent of the beneficiaries for partial termination of the trust, Congress implemented a basic precept of traditional trust law. See Restatement (Third) of Trusts § 65(1). In carrying forward with its responsibilities respecting the 1886 lands, the Department of Interior provided documentary evidence of land assignments to assignees. Indian Land Certificates described the tracts of land, certified that the particular individual “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 land.” Pls.’ Ex. 35 (Indian Land Certificate of Harry Bluestone (June 1, 1905)). If the land were to be abandoned for a period of time, usually two years, then the land would be reassigned to another beneficiary; any sale, transfer, or encumbrance of the land other than to the United States was void. Id. Although not guaranteed by the assignment, in practice 9 an assignee’s land would pass directly to his children upon his death, but other relatives needed to follow procedures established by the Bureau of Indian Affairs to receive an assignment. See Pls.’ Ex. 34 at 2, 22 (Smith v. Bureau of Indian Affairs, Indian Probate No. IP TC 389S-81 (1990)). Evolution of the Three Communities In 1934, the Indian Reorganization Act changed the federal government’s relationships with Indian tribes. Act of June 18, 1934, 48 Stat. 984 (also known as the Wheeler-Howard Act) (codified at 25 U.S.C. §§ 461, 462, 463, 464, 465, 466 to 470, 471 to 473, 474, 475, 476 to 478, and 479). Primarily, this Act was designed to permit Native Americans to form federallyrecognized tribes and to transfer the functions of the Department of Interior and the Office of Indian Affairs regarding reservations to the tribes. See Indian Reorganization Act: Hearings on H.R. 7902 Before the House Comm. on Indian Affairs, 73d Cong. 1 (1934). 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, e.g., Shakopee and Prairie Island Amici Br. Ex. A. (Constitution & Bylaws of Prairie Island Indian Community). The communities were and are not exclusively comprised of descendants of loyal Mdewakanton, nor were nor are all descendants members of one of the communities. See Pls.’ Ex. 30, at 2 (Letter for the Field Solicitor to the Minneapolis Area Dir. of the Bureau of Indian Affairs (Nov. 8, 1978)). In theory, the Indian Reorganization Act should not have affected the rights of the lineal descendants of the loyal Mdewakanton because it established that “[t]he 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. However, a memorandum dated January 25, 1955 from the Minneapolis Area Office of the Bureau of Indian Affairs listed regulations for the issuance of such assignments that gave some effect to the Indian Reorganization Act. If an individual wanted to apply for an assignment of land, he or she first had to file an application with the Indian Community Council of the community with jurisdiction over the land. Pls.’ Ex. 25 (1955 Minneapolis Area Office Indian Affairs Manual, Supp. No. 11). Next, the community would forward the application to the Superintendent with recommendations about the action to be taken. The Superintendent would ensure that the applicant was an eligible beneficiary of the loyal Mdewakanton land. Id. Upon approval, the Superintendent would forward it to the Area Director for assignment. The solicitation of recommendations by the local communities was “a courtesy only and [was] by no means a legal necessity, since the communities have no decision making authority concerning use of these lands.” Pls.’ Ex. 30, at 2 (Letter for the Field Solicitor to the Minneapolis Area Dir. of the Bureau of Indian Affairs (Nov. 8, 1978)). Over time, the communities acquired lands in addition to the 1886 lands. This additional land was interspersed among the 1886 lands, resulting in a “checkerboard pattern.” H.R. Rep. No. 96-1409, at 6 (1980). The additional land was not subject to the assignment process that The March 1974 Memorandum explicated in 8 considerable detail the origins of the trust in the Appropriation Acts of 1888, 1889, and 1890, and the ensuing responsibilities of the Secretary of Interior as trustee. 10
applied to the 1886 lands, which were available only to lineal descendants of the loyal Mdewakanton. S. Rep. No. 96-1047, at 2 (1980). If no eligible Mdewakanton took an assignment, the Secretary of Interior could lease the land for fair market value, with the proceeds from the lands deposited by the Department of Interior in accounts held for the benefit of the lineal descendants. See Pls.’ Ex. 29, at 5-6 (Memorandum to Comm’r of Indian Affairs from Acting Assoc. Solicitor, Indian Affairs (March 19, 1974)); Hr’g Tr. 105-06.8 Thus, the trust principal came to consist of land, appurtenances to land, and monies, all deposited for the benefit of the lineal descendants. Membership in the communities also gave rise to significant issues. Over the years, the communities gained a great deal of discretion in determining who kept or attained membership. See Pls.’ Ex. 29, at 3 n.2 (Memorandum to Commissioner of Indian Affairs from Acting Associate Solicitor, Indian Affairs (March 19, 1974) (“The persons comprising the membership in those organizations[, i.e., the communities] are not all Mdewakanton.”). Because the Department of Interior recognized the importance of the communities’ right to self-government and the right to determine their own membership, 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. Pls.’ Ex. 33, at 2 (Letter from Bureau of Indian Affairs, Midwest Reg’l Office to Anonymous Mdewakanton (Aug. 20, 2001)). Prior to the 1980 Act, the Department of Interior consistently treated the 1886 lands as being held in trust for the exclusive benefit of the loyal Mdewakanton and their descendants. The language in Land Certificates for the 1886 lands noted that such land “is to be held in trust, by the Secretary of the Interior, for the exclusive use and benefit of the said Indian.” Pls.’ Ex. 35 (Indian Land Certificate of Harry Bluestone) (June 1, 1905)). This treatment continued in 1978, when a Field Solicitor stressed that “none of the three Community governments, organized under the Indian Reorganization Act and operating under constitutions and bylaws, 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.” Pls.’ Ex. 30, at 1-2 (Letter for the Field Solicitor to the Minneapolis Area Dir. of the Bureau of Indian Affairs (Nov. 8, 1978)). The 1980 Act By 1980, the communities sought greater control over the use of the lands. The constitution and bylaws for each of the communities had established two classes of members: (1) “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.” H.R. Rep. No. 96-1409, at 2 11 (1980). A legislative proposal was made to Congress to eliminate this distinction and to confer greater control on the communities. The proposal was introduced in the House as H.R. 7147 by Rep. Richard Nolan of Minnesota on April 23, 1980 and was referred to the House Committee on Interior and Insular Affairs. See 126 Cong. Rec. 8864 (1980). The bill addressed the 1886 lands specifically and would have conveyed the United States’ interest in those lands to the United States in trust for the three communities. See 126 Cong. Rec. 29785-86 (1980). The Department of Interior issued a favorable report to the House Committee on the bill, making only one suggestion about language. The Department requested that the bill include a generic description of the 1886 lands and that publication of a legal description of the lands involved be subsequently made in the Federal Register. That suggestion was made “to avoid the need to include in the bill a detailed land description that is both cumbersome and subject to inadvertent error.” H.R. Rep. No. 96-1409, at 6 (Letter from Thomas W. Frederick, Assistant Sec’y of Interior, to Hon. Morris K. Udall (Sept. 9, 1980)). The Congressional Budget Office advised that the bill made a “technical change in the status” of the lands and “that no additional cost to the government would be incurred as a result of enactment of th[e] legislation.” Id. at 3 (Letter from Alice M. Rivlin, Dir. of Cong. Budget Office, to Hon. Morris K. Udall (Sept. 11 1980)). Upon consideration by the House Committee on Interior and Insular Affairs, H.R. 7147 was amended to include a 40 acre tract that had been inadvertently omitted and a requirement that the Secretary of Interior publish a description of the lands in the Federal Register. H.R. 7147 then was reported favorably out of Committee by voice vote on September 26, 1980. H.R. Rep. No. 96-1409, at 2. In its report, the Committee found that the “distinction [in membership of the communities] has severely hampered the tribal efforts to achieve self-determination.” Id. H.R. 7147, as amended by the Committee, was passed by the House on the consent calendar on November 17, 1980, without recorded or voice vote. See 126 Cong. Rec. 29,785-86 (1980). There was no comparable bill in the Senate. When the Senate received H.R. 7147 on Nov. 19, 1980, it was referred to the Senate Select Committee on Indian Affairs. S. Rep. No. 96- 1047, at 2-3 (1980). This Committee reported the bill favorably by a unanimous poll of its members. Id. at 3. The Senate Report noted that the 1886 lands had been “acquired by the United States for the use and benefit” of the loyal Mdewakanton, but that under the proposed bill “all right, title, and interest in such lands would be declared instead to be held by the United States in trust for three Minnesota Sioux tribal Communities.” Id. at 1. A stated reason for the bill was that the land assignments made to the descendants “are not encumberable documents that can be used in securing loans from commercial institutions.” Id. at 6. H.R. 7147 was passed by the Senate on December 8, 1980, by unanimous consent. See 126 Cong. Rec. 32,898 (1980). Thus, H.R. 7147 was passed by Congress during a lame-duck session held after the November 1980 elections. President Carter signed the bill into law on December 19, 1980, very near the close of his presidency. The full statutory text of the Act is as follows: 12 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. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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) which were acquired and are now held by the United States for the use or benefit of certain Mdewakanton Sioux Indians under the Act of June 29, 1888 (25 Stat. 217); the Act of March 2, 1889 (25 Stat. 980); and the Act of August 19, 1890 (26 Stat. 336), 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. Pub. L. No. 96-557, 94 Stat. 3262 (1980). The 1980 Act, read literally, transferred whatever title the United States had in the 1886 lands from the United States to the United States in trust for the three communities. The 1980 Act failed to address what title the United States had in the 1886 lands. The Act also was silent as to the beneficial interest of the loyal Mdewakanton and their lineal descendants except that a savings clause preserved the rights of existing assignees. Id. § 3. In short, the 1980 Act addressed the trust relationship in existence regarding the 1886 lands only in a backhanded minor 9A notice was published in the Federal Register on August 5, 1982. See 47 Fed. Reg. 34,050. 13 way through the limited savings clause. The 1980 Act also was silent as to the 1886 monies held by the Department of Interior for the benefit of the lineal descendants. The extraordinarily poor drafting reflected in the 1980 Act did not slow its implementation by the Department of Interior. In a letter from the Acting Area Director of the Bureau of Indian Affairs dated January 15, 1981 to the Chairman, Community Council, Lower Sioux Community, the Department of Interior took the position that the 1886 lands and 1886 monies held by Interior would be treated as “tribally-owned” property, i.e., it would now be controlled by the Community without reference to the 1886 restriction. Lower Sioux Amicus Br. App. 3. (Letter from David Granum to Leon Columbus (Jan. 15, 1981)). This interpretation was confirmed by a letter from the Field Solicitor to the Area Director dated February 6, 1981. Lower Sioux Amicus Br. App. 4 (Letter from Elmer T. Nitzschke to Edwin Demery (Feb. 6, 1981)). The Field Solicitor’s letter addresses four topics of importance to the Department in implementing the 1980 Act: (1) the steps needed to transfer title to the 1886 lands, (2) the effect of the savings clause to the 1980 Act, (3) the disposition of 1886 monies, and (4) the desirability of preparing an inventory of the 1886 lands, monies, and other property being transferred. As to title, the Field Solicitor indicated that transfer could not be effectuated until notice had been published in the Federal Register: Section 2 of this Public Law requires that a Notice be published in the Federal Register describing the lands transferred to the respective communities: Has such publication taken
lace[?] [W]hile the transfer of title was effectuated by the passage of the Act, the incorporation of the lands in question within the bounds of the respective reservation may not legally be completed until such time as the required publication has been effectuated. Id. at 1 (emphasis added).9 Respecting the effect of the savings clause, the Field Solicitor advised that existing assignments had to be honored: ntil such time as the interests described in the outstanding leases or assignments to the lands have expired or been terminated, the respective communities do not have a full proprietorial interest in those lands. When those lands are effectively incorporated within the jurisdiction or reservation of the respective communities by the aforementioned publication in the Federal Register, the communities will have full governmental or legislative jurisdiction 14
over such land comparable to their jurisdiction over other lands of the reservation. Id. at 2. The Field Solicitor assumed that the 1980 law applied to the 1886 monies held by the Bureau of Indian Affairs for the benefit of the lineal descendants and that the 1886 monies could be turned over to the communities without notice to the 1886 beneficiaries: 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 [sic] 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 [sic] Bands of Souix [sic] Indians against the United States (57 Court of Claims 357 (1932) [sic] 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. Id. Lastly, the Field Solicitor recommended that an inventory of the 1886 property be made in connection with transfer of the property to the communities: It would be my suggestion that in preparation for meeting with the various communities on this legislation that the Bureau inventory all of the outstanding interests as to the lands transferred and be prepared to discuss them with each of the communities. Revenues from these lands produced after the effective transfer of title will be available to the tribe for tribal use as are the revenues from other acquired lands belonging to the Community. Id. The materials made available to the court do not show that any such inventory was made. 15 To implement the 1980 Act, title to the 1886 lands, monies, and other property was transferred to the communities. Subsequent decisions by the Department of Interior have uniformly given effect to the ensuing transfer of title to the 1886 property, rejecting claims by lineal descendants of the loyal Mdewakanton. As Administrative Law Judge Arness stated in Brewer v. Acting Deputy Assistant Sec’y for Indian Affairs, 10 IBIA 110, at *16 (1982), prior to the Act, the United States held title for the benefit of the loyal Mdewakanton and their descendants, but “[w]ith passage of the Act of Dec. 19, 1980, title was held in trust for the community to be managed by it for the benefit of the community and its members.” See also Gitchel v. Minneapolis Area Dir., 28 IBIA 46, 48 (1995) (“there is simply no question as to the intent of Congress in 1980 to convey the beneficial title to these lands to the Community”); cf. Cermack v. Norton, 322 F.Supp.2d 1009, 1015 (D. Minn. 2004) (holding that the Acting Area Director’s decision not to reissue land certificates to heirs was not arbitrary and capricious). Since 1980, the laws and regulations concerning Indian gambling have changed, making operation of gaming venues on community land feasible and lucrative. Operation of casinos, hotels, entertainment centers, and other developments, rather than agriculture, has generated very high income for one of the communities. Am. Compl. ¶ 33. Subsequently, the Shakopee Mdewakanton Sioux (Dakota) Community reportedly has purchased “thousands of acres of suburban land” in the Minneapolis-St. Paul metropolitan area. Hr’g Tr. at 90. The lineal descendants have been shut out from this largesse to the extent that they have not been members of the favored community. This Lawsuit The four originally named plaintiffs claimed to sue “on behalf of themselves and all other descendants of persons listed on the May 20, 1886 U.S. Mdewakanton census.” Am. Compl. ¶ 2. The Complaint alleges that the properties purchased with funds appropriated by the 1888, 1889, and 1890 Acts constituted the corpus of a trust, with legal title in the United States, but with equitable title in the loyal Mdewakanton and their lineal descendants. They aver that the United States allegedly breached its fiduciary duty in 1980 and thereafter by transferring trust assets and permitting non-descendants to receive profits from the casinos and other property on the lands in question. Id. ¶¶ 35-41. Secondarily, the plaintiffs allege that a contract was created between the loyal Mdewakanton and the United States through which the Mdewakanton renounced their tribal affiliation in exchange for the appropriated trust property and that the government breached this contract. Id. ¶¶ 50-55. After plaintiffs filed their amended complaint, the government responded with a motion to dismiss, which makes three principal arguments. First, the government argues that the court has no jurisdiction to hear this case under the Tucker Act, 28 U.S.C. § 1491(a)(1), or Indian Tucker Act, 28 U.S.C. § 1505, because the government had no money-mandating fiduciary duty. As the government would have it, no trust existed prior to 1980, and, even if one did, the 1980 Act transferred equitable title in the 1886 lands to the communities from the lineal descendants. Def.’s Mot. to Dismiss at 12-13. The government also argues that the loyal Mdewakanton and 16 their lineal descendants are not an “identifiable group of American Indians” under the Indian Tucker Act. Id. at 12. Second, it denies that the United States has a contractual duty to plaintiffs, and argues that the contract claim is insufficient in detail and should be dismissed under Rule 9(h)(3) of the Rules of the Court of Federal Claims (“RCFC”). Id. at 22. Third, it asserts that the six-year statute of limitations has expired because any breach of contract or fiduciary duty took place with the passage of the 1980 Act. Id. at 22-23. The plaintiffs filed a cross-motion for partial summary judgment on three issues: whether the lineal descendants are the trust beneficiaries of the 1886 lands, whether the United States breached its duties as trustee, and whether the United States breached its contractual duties to plaintiffs. See Pls.’ Cross-Mot. at 1. Despite the class-action language in the complaint, plaintiffs have neither applied for class certification nor do they apparently intend to do so in the near future. Plaintiffs’ counsel has stated that at least four different groups of plaintiffs are involved even though all plaintiffs claim to be lineal descendants: (1) members of the Shakopee community, (2) members of the Prairie Island community, (3) members of the Lower Sioux community, and (4) lineal descendants who do not belong to any of the communities. Hr’g Tr. at 48-49. For the present, plaintiffs have opted to file a motion to amend their complaint to add plaintiffs rather than to seek class certification. The motion requests leave to amend their complaint to add both additional named and anonymous plaintiffs, and asks that the court enter a protective order establishing filing procedures to protect the confidentiality of the anonymous “John Doe” and “Jane Doe” plaintiffs. In support of the amendment, plaintiffs claim that those who are members of communities fear that their involvement will be seen as action adverse to the communities and that their membership in the communities will be terminated and those lineal descendants among them who are not members of communities fear that the communities will deny their membership applications if their involvement in this case is known. Hr’g Tr. at 88-89. A hearing on the pending motions was held on June 24, 2004, and, at the court’s specific request, supplemental briefs were filed thereafter by the parties on the applicability vel non of the “Indian Trust Accounting Statute” that was initially enacted in 1990 as part of the annual appropriations act for the Department of Interior and has been adopted each year thereafter. See, e.g., Shoshone Indian Tribe v. United States, 364 F.3d 1339, 1344 & n.2 (Fed. Cir. 2004). The current version of the Indian Trust Accounting Statute, enacted as part of the Department of the Interior and Related Agencies Appropriations Act, Pub. L. No. 108-108, provides as follows: [N]otwithstanding any other provision of law, the statute of limitations shall not commence to run on any claim, including a 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. 10The Federal Circuit in Shoshone addressed an identical statutory provision enacted as part of the appropriations made for the Department of Interior for 2003. See 364 F.3d at 1344 (quoting from Pub. L. No. 108-7). The prior versions were also identical, except, as the Federal Circuit noted, the original version adopted in 1990 did not contain the clause “from which the beneficiary can determine whether there has been a loss,” which clause was added in 1991, nor did it incorporate the clause “including any claim in litigation pending on the date of this Act,” which clause was added in 1993. See Shoshone, 364 F.3d at 1344. 17 Pub. L. No. 108-108, 117 Stat. 1241, 1263 (Nov. 10, 2003) (emphasis added).10 The parties’ supplemental briefing was completed in August. Thereafter, each of the three communities and Mr. Cermak filed their motions for leave to participate as amicus curiae, and those motions were briefed. ANALYSIS Standards for Decision Plaintiffs bear the burden of establishing the court’s subject matter jurisdiction over the claim. See McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Ware v. United States, 57 Fed. Cl. 782, 784 (2003); Bond v. United States, 43 Fed. Cl. 346, 348 (1999). In determining whether it has jurisdiction over a case under RCFC 12(b)(1) or 12(b)(6), a federal 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 (1974)). “Fact-finding is proper when considering a motion to dismiss where the jurisdictional facts in the complaint . . . are challenged.” Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) (citing Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988)). Jurisdiction over a claim against the United States requires a waiver of sovereign immunity and the existence of a cause of action that falls within the scope of that waiver. United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Such a waiver may not be inferred, but must be “‘unequivocally expressed.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (“Mitchell I”) (quoting United States v. King, 395 U.S. 1, 4 (1969)). The Tucker Act and the Indian Tucker Act both constitute such waivers, but any invocation of jurisdiction under those Acts must be accompanied by a corresponding substantive claim that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. Mitchell, 463 U.S. 206, 217 (1983) (“Mitchell II”) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). In assessing a motion to dismiss for failure to state a claim upon which relief can be granted, the court’s “‘task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002) (quoting Scheuer, 416 U.S. at 236). A motion Rule 24(a)(2) permits intervention 11 of right “when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The Shakopee and Prairie Island Communities state that they opted not to intervene because “this Court does not possess jurisdiction to declare the Tribes as the equitable title holder and trust beneficiary of the lands at issue.” Shakopee and Prairie Island Reply at 2-3. 18
represent the entire group. Because the plaintiffs have advised that, for the present, they will not seek class certification, amici assert that they do not represent the entire group of lineal descendants. Shakopee and Prairie Island Br. at 6. Amici rely on Cherokee Nation v. United States, 92 Ct. Cl. 262 (1940), in which the court dismissed a claim because the entire Cherokee tribe did not participate. However, the statute granting jurisdiction to this court’s predecessor in Cherokee Nation explicitly required that the entire tribe bring suit. The court held that “the legislation authorizing an action to be brought by the tribe by its express terms permits only a suit by the tribe for the recovery of a judgment, if it is entitled to one, for the benefit of the whole tribe and not for certain individuals as members of the tribe.” Id. at 268. “In other words, the jurisdictional act authorizes only the making and the adjudication of tribal claims.” Id. at 268-69. In contrast, the loyal Mdewakanton, to qualify as beneficiaries of the 1888, 1889, and 1890 Acts, expressly had to abjure their relationship to any tribe; they were obligated to sever their tribal relations. See, e.g., Act of June 29, 1888; 25 Stat. 217, 228 (providing support for those fullblooded Mdewakanton who have resided in Minnesota since May 20, 1886 “and [have] severed their tribal relations”); Pls.’ Ex. 30, at 1 (stating in a Letter from Mariana Shulstad for the Field Solicitor to Edwin Demery, Area Director, Bureau of Indian Affairs (Nov. 8, 1978), that the 1886 lands were purchased for the “benefit of those Mdewakanton Sioux individuals who had severed relations with their tribe”). Also, in this case jurisdiction is not grounded in a limited waiver by Congress, unlike in Cherokee Nation or in the Sisseton and Medawakanton annuity cases. Instead, jurisdiction is premised upon the more general waivers of sovereign immunity found in the Tucker Act, 28 U.S.C. § 1491, and the Indian Tucker Act, 28 U.S.C. § 1505. Second, amici challenge the “injury in fact” suffered by those lineal descendants who also belong to one of the communities. According to this argument, these plaintiffs “are already eligible to share in the lands under the inherent and [c]onstitutional authority exercised by each [t]ribal government.” Shakopee and Prairie Island Br. at 6. This eligibility supposedly bars such plaintiffs from suffering any injury. However, this argument improperly belittles plaintiffs’ claims: the benefits some plaintiffs receive as members of one of the communities may be substantially less than, or different from, those which they would receive as a lineal descendant. See, e.g., Pls.’ Resp. to Mot. for Leave at 21. Although the court has not made any factual findings regarding the veracity of amici’s contention, plaintiffs’ allegations of financial and other harm are sufficient to provide standing. See Lujan, 504 U.S. at 561 (quoting Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889 (1990) (“on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’”)). Third, the amici claim that the plaintiffs who belong to the communities have no redressable claim because they have not severed tribal relations and because the communities do not permit dual enrollment. Shakopee and Prairie Island Br. at 6-7. This argument is sophistic and pulls historical circumstances out of context. To be a beneficiary of the 1888, 1889, and 1890 Acts, a Mdewakanton must have severed tribal relations. See, e.g., Act of June 29, 1888, 25 Stat. at 228; Pls.’ Ex. 30, at 1. This requirement applied to the original trust beneficiaries. It reaches through time to the present day only for limited purposes, viz., it was the principle governing eligibility for inclusion in the 1886 census, and it now defines the group of individual The government also contends that the alleged breach of fiduciary d 12 uty is not a “moneymandating duty” under Mitchell I, Mitchell II, and White Mountain Apache. This contention is addressed below. 22 persons eligible to bring a claim. Moreover, the communities’ prohibitions on dual enrollment do not affect the lineal descendants because their alleged status as a beneficiary of a trust does not constitute a separate enrollment. In short, each of the arguments of amici directed against plaintiffs’ standing to bring their claims lacks merit and is unavailing. Plaintiffs have standing to pursue their claims. Jurisdiction A. Statutory Predicates for Suit The government challenges the court’s jurisdiction, arguing that the plaintiffs’ claims fall outside the jurisdictional grants of the Tucker Act, 28 U.S.C. § 1491, and the Indian Tucker Act, 28 U.S.C. § 1505. As explained above, the United States must waive sovereign immunity to be bound by damage judgments, and such waiver must be explicit. See supra, at 17. Both Acts apply and provide the requisite waiver of sovereign immunity. The Tucker Act grants this court jurisdiction over claims “against the United States founded . . . [on] any Act of Congress or any regulation of an executive department . . . or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Plaintiffs’ first claim is founded on an action for damages not sounding in tort, namely, breach of fiduciary duty, and their second claim alleges breach of a contract with the government.12 The Tucker Act itself does not provide the substantive law to be applied; rather, trust and contract law supply that framework. See Confederated Tribes of Warm Springs Reservation of Oregon v. United States, 248 F.3d 1365, 1371 (Fed. Cir. 2001). Because the Tucker Act “‘itself provides the necessary consent’ to suit . . . the rights-creating statute or regulation need not contain ‘a second waiver of sovereign immunity.’” United States v. Navajo Nation, 537 U.S. 488, 503 (2003) (quoting Mitchell II, 463 U.S. at 218-19). The Indian Tucker Act also provides a basis for this court’s jurisdiction over the claims in this case. 28 U.S.C. §1505 grants jurisdiction over “any claim” brought by 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. 23
(Emphasis added.) The government asserts that the lineal descendants of the loyal Mdewakanton do not have a right to sue under the Indian Tucker Act because they “are individual Indians and not a tribal group.” Def.’s Mot. to Dismiss at 12. Congress was able to identify the loyal Mdewakanton and their lineal descendants in the Acts of 1888, 1889, 1890, and 1901. Moreover, plaintiffs need not be an organized unit to claim jurisdiction under the Indian Tucker Act. See Tee-Hit-Ton Indians v. United States, 120 F. Supp. 202, 204 (Ct. Cl. 1954) (holding that the descendants of the earliest known native inhabitants of an area of land in southeastern Alaska satisfied the “identifiable group” requirement). In addition, the alleged divestiture of rights occurring after the 1980 Act does not elide any jurisdiction that would arise under the Indian Tucker Act. See Menominee Tribe v. United States, 388 F.2d 998, 1001 (Cl. Ct. 1967) (holding that despite the Menominee Termination Act, which terminated federal supervision over the tribe’s property, the Menominee Tribe still could invoke jurisdiction under the Indian Tucker Act, in part because “[t]he tribe continues to hold the beneficial and equitable interest in the property”). Correlatively, the government argues that individual Indians are not permitted to bring personal claims under 28 U.S.C. § 1505. See Fields v. United States, 423 F.2d 380, 383 (Cl. Ct. 1970) (holding that the alleged heirs of an individual plaintiff could not invoke jurisdiction under the Indian Tucker Act, but could bring claims under the Tucker Act); Cherokee Freedmen v. United States, 161 Ct. Cl. 787 (1963) (holding, on an appeal from the Indian Claims Commission, that claims by Cherokee Freedmen that the Dawes Commission should have enrolled them as members of the Cherokee Nation were correctly dismissed as individual and not group claims). This challenge also fails, however, because plaintiffs bring their claims specifically and solely as members of a group. Unlike in Cherokee Freedmen, where the plaintiffs’ case consisted of “individual claims dependent upon the individual facts and circumstances pertinent to the particular person asserting that he (or his ancestor) was wrongfully denied enrollment,” 161 Ct. Cl. at 789, this case involves questions of a particular and discrete group’s rights under various Acts of Congress. Whereas in Cherokee Freedmen “[t]here [was] no common right or group interest,” id., the lineal descendants of the loyal Mdewakanton have a collective interest in ascertaining whether the government had a fiduciary duty to them and whether that fiduciary duty has been violated or abridged. 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. Moreover, the fact that this case is not currently certified as a class action does not change the court’s adjudication of questions common to the entire group. The court must determine whether the group (comprised of numerous individuals) is the beneficiary of a trust, whether the group has contracted with the United States government, and what if any rights the group has under such trust or contract. Thus, in this case the scope of the inquiry into group rights far exceeds that in Fields and Cherokee Freedmen. It is much more analogous to the situation in Tee-Hit-Ton, where the court concluded that “some, at least, of the land exploited by the Tee24 [H]it-[T]on was claimed by the plaintiff clan as a whole, and that it is, therefore, an identifiable group of Indians within the meaning of the statute.” 120 F. Supp. at 204. Because determinations comparable to those in Tee-Hit-Ton are necessarily implicated by the claims in this case, jurisdiction is appropriate under the Indian Tucker Act. B. Nature of Plaintiffs’ Claims 1. Breach of fiduciary duty. The plaintiffs allege that the 1886 property constituted the principal of a trust, with legal title in the United States, but with equitable title in the loyal Mdewakanton and their lineal descendants. The government allegedly breached its fiduciary duty in 1980 and thereafter by transferring control of trust assets to the communities and permitting non-descendants to receive profits from casinos and other ventures on the lands in question. Am. Compl. ¶¶ 35-41. The government challenges this claim in three principal ways. First, it argues that the 1886 lands were never held in trust for the loyal Mdewakanton, and that the United States always held both legal and equitable title to the land. Def.’s Mot. to Dismiss at 16-20. The Acts of 1888, 1889, and 1890, according to this argument, extended benefits to those who satisfied the requirements of the Acts, but not to their lineal descendants. Id. at 19. Second, the government interprets the 1980 Act as extinguishing any fiduciary duty the government owed to the lineal descendants. Id. at 13-16. Third, it contends that any duty the government still owes to the lineal descendants is not a money-mandating duty, and therefore the court lacks jurisdiction. Id. at 12-22. Each of these arguments is examined in turn. (a) Existence of a trust. Contrary to the government’s assertions, the arrangement between the loyal Mdewakanton and the government includes all of the features of a trust. “Where . . . the relevant sources of substantive law create ‘ll of the necessary elements of a common-law trust,’ there is no need to look elsewhere for the source of a trust relationship.” White Mountain Apache, 537 U.S. at 476 n.3. The three traditional elements of a trust are a trustee, beneficiaries, and trust property, also known as the corpus. See Restatement (Third) of Trusts § 2 cmt. f. The trustee manages the corpus in the best interests of the beneficiaries in accordance with the guidelines for and purposes of the trust. Id. In this case, the United States created a trust in which it acted as trustee, the loyal Mdewakanton and their lineal descendants were, and arguably are, the beneficiaries, and the corpus includes property, improvements to property, and money. The 1888, 1889, and 1890 Acts in combination have three key features that show the creation of a trust. First, the 1888 Act calls upon the Secretary of Interior to expend the appropriated funds for the Mdewakanton “as in his judgment he may deem best.” Act of 1888, 25 Stat. at 228-29. Similar provisions were included in the 1889 and 1890 Acts. See Act of 1889, 25 Stat. at 992-93 (calling for the money to be expended by the Secretary of Interior “as may be deemed best in the case of each of these Indians or family thereof”); Act of 1890, 26 Stat. 25
at 349 (“as in his judgment he may think best”). This language functionally appoints the Secretary of Interior to serve as the trustee to spend the funds on behalf of the beneficiaries, the loyal Mdewakanton. Second, the Acts of 1889 and 1890 call for “each of the Indians in this paragraph [to receive] as nearly as practicable, an equal amount in value of this appropriation and that made by [the 1888 Act].” See Act of 1889, 25 Stat. at 992-93. This provision operates as a guideline for the trustee: he or she must ensure that the corpus is distributed equally to the extent possible. Third, in order to ensure that the proceeds from the 1889 and 1890 appropriations went to the beneficiaries, Congress inserted an additional clause providing that if the funds were not all spent during the fiscal year, they “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.” Act of 1889, 25 Stat. at 992. This clause aids in defining the corpus of the trust by directing that all of the funds allocated be used for the benefit of the loyal Mdewakanton, even if basic necessities had already been provided for them. An analysis of the history behind Congress’s enacted laws also reveals the creation of a trust. During debate on the 1888 Act, Rep. MacDonald referred to the Mdewakanton as “beneficiaries” of the 1888 Act. 19 Cong. Rec. H2977 (daily ed. Apr. 14, 1888) (statement of Rep. MacDonald). “The actual purchase of land under these appropriations began in April, 1889.” History of the Santee at 282. As the purchases progressed, Congress seems to have kept watch over the results because the 1890 Appropriations Act specified that $2,000 of the $8,000 that was appropriated was designated to be expended for the Prairie Island settlement. Id. In addition, the property buyer, Robert B. Henton, observed that several prior purchases that had been deeded directly to the loyal Mdewakanton, see supra, at 7-8 n.7, had been sold or mortgaged. History of the Santee at 283. Accordingly, Mr. Henton considered that title to future purchases should be retained by the government, and that policy was followed thereafter. Id. The 1901 Act by Congress further reflected Congress’s understanding that the 1886 lands were held in trust for the Mdewakanton. In connection with passage of that Act, Senator Pettigrew commented that “[t]he land was purchased for their benefit, and the title is in them subject to a provision by which they can not convey it.” 34 Cong. Rec. 2523 (1901). This statement reflects an explicit understanding that the loyal Mdewakanton had equitable title to the 1886 property as beneficiaries. The 1901 Act empowered the Secretary of the Interior to sell certain land provided “the written consent of the adult Indians residing in Redwood County, Minnesota, shall first be given.” Act of 1901, 31 Stat. at 805, 806. A basic precept of trust law is that partial termination of a trust requires the consent of all the beneficiaries. See Restatement (Third) of Trusts § 65(1) (“if all of the beneficiaries of an irrevocable trust consent, they can compel the termination or modification of the trust”). The Department of Interior’s practice in addressing the 1886 lands and other property has also been consistent with the formation of a trust. The Land Certificates that assigned 1886 land to individuals expressly stated that the land “is to be held in trust, by the Secretary of the Interior, for the exclusive use and benefit of the said Indian.” See Pls.’ Ex. 35 (emphasis added). A March 1974 Memorandum from the Acting Associate Solicitor for Indian Affairs to the 26 Commissioner of Indian Affairs 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.” Pls.’ Ex. 29, at 5 (emphasis added). An additional letter written in 1978 for the Field Solicitor to the Minneapolis Area Director of the Bureau of Indian Affairs emphasized that “none of the three Community governments, organized under the Indian Reorganization Act and operating under constitutions and bylaws, 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.” Pls.’ Ex. 30, at 1-2 (emphasis added). These memoranda only scratch the surface of the numerous documents that plaintiffs have provided to the court that reflect the Department of Interior’s pre-1980 interpretation of the 1888, 1889, and 1890 Acts, namely, that the United States held the 1886 lands in trust for the loyal Mdewakanton and their lineal descendants. The court has not been provided with any evidence to the contrary. Thus, the court necessarily concludes that there is no genuine dispute of material fact that a trust was created and that the government held the 1886 lands, the 1886 monies, and the other 1886 property in trust. The government challenges the plaintiffs’ contention that the lineal descendants are beneficiaries of the trust, claiming that the land was purchased only for the Mdewakanton who satisfied the conditions of the 1888, 1889, and 1890 Acts, and that their descendants are not beneficiaries of any trust. Def.’s Mot. to Dismiss at 19. However, the language of the Acts themselves and the consistent, lengthy administration by the Department of Interior of the 1886 lands, monies, and other property support the plaintiffs’ view that the lineal descendants are beneficiaries. The 1863 Act, which first attempted to provide for the loyal Mdewakanton, sought to provide land that would serve as “an inheritance to said Indians and their heirs forever.” 12 Stat. at 654 (emphasis added). The 1888 Act was motivated in part by the fact that the 1863 Act was not successfully implemented. 19 Cong. Rec. H2976-77 (daily ed. Apr. 14, 1888) (statement of Rep. MacDonald). The 1889 and 1890 Acts also called upon the Secretary of Interior to expend the money on behalf of the “Indians or family thereof.” Act of 1889, 25 Stat. at 992 (emphasis added). Because the 1886 lands used an assignment system instead of an allotment system, Congress used the word “family” rather than “heirs,” which was used in the 1863 Act. However, in this context, the Indian Land Certificates that implemented the 1888, 1889, and 1890 Acts certified that an assignee “and his heirs are entitled to immediate possession of said land.” Pls.’ Ex. 35 (emphasis added). The uniformly consistent practice of the Department of Interior over a ninety-year span reinforces the view that lineal descendants are beneficiaries. Upon the death of a landholder, the Department frequently passed the land along to the children. See, e.g., Pls.’ Ex. 34, at 22. The 1955 Minneapolis Area Office Indian Affairs Manual claimed that to be eligible for an assignment, an applicant must be “a member of the Mdewakanton Band of Sioux, must have been resident of the State of Minnesota on May 20, 1886, in the actual process of moving to the State of Minnesota, or the descendant of such resident.” Pls.’ Ex. 25, at 0041046 (emphasis added). Internal memoranda of the Department further support this view. A 1971 memorandum from the Acting Associate Solicitor to the Field Solicitor said that “only descendants of Mdewakanton who resided in Minnesota on May 20, 1886, are eligible for land assignments at 27