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Post by mdenney on Feb 11, 2007 13:43:38 GMT -5
PART 10
Shakopee.” Pls.’ Ex. 20, at 1. A 1978 memorandum for the Field Solicitor to the Minneapolis Area Director of the Bureau of Indian Affairs stressed that the 1886 lands are “held for the benefit of a specific class of people and their descendants.” Pls.’ Ex. 30, at 2. The court has been provided with no evidence contravening these and other similar documentary materials reflecting long-standing practice. In short, the 1888, 1889, and 1890 Acts created a trust, and the beneficiaries are the loyal Mdewakanton and their lineal descendants. (b) The 1980 Act. The government repeatedly claims that the 1980 Act terminated any trust that existed for the Mdewakanton. See, e.g., Def.’s Mot. to Dismiss at 13-16. This argument fails to acknowledge the actual language of the 1980 Act. When the United States terminated trusts in the past, Congress typically used far more explicit language than that of the 1980 Act. See, e.g., 25 U.S.C. § 677 (“The purpose of this subchapter is to provide for . . . the termination of Federal supervision over the trust, and restricted property, of the mixed-blood members of said [Ute] tribe.”); 25 U.S.C. § 564 (“The purpose of this subchapter is to provide for the termination of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians.”). In contrast, the 1980 Act stated that certain lands currently “held by the United States for the use or benefit of certain Mdewakanton Sioux Indians under the [1888, 1889, and 1890 Acts] are hereby declared to hereafter be held by the United States” in trust for the communities. 94 Stat. at 3262. The 1980 Act does not state as its purpose that the trust for the Mdewakanton would be terminated. Furthermore, the government’s interpretation is inconsistent with the 1901 Act, which required the consent of the loyal Mdewakanton before the sale of designated land. Such consent is generally required to terminate a trust, and was not received here. See Restatement (Third) of Trusts § 65(1). The government’s theory also does not explain the existence of a savings clause. Section 3 of the 1980 Act states that nothing in the Act shall “alter, or require the alteration, of any rights under any contract, lease, or assignment entered into or issued prior to enactment of this Act.” 94 Stat. at 3262. This language covered more than pre-1980 assignments to lineal descendants. By its terms it saved pre-1980 contracts, leases, and assignments to non-descendants, which assignments generated proceeds that were gathered by the Department of Interior and then split among lineal descendants. These omissions indicate that the 1980 Act did not terminate the trust. In addition, as plaintiffs have pointed out, the language of the 1980 Act implies that the lineal descendants’ equitable title was not transferred. The 1980 Act transfers “all right, title, and interest of the United States” in the 1886 lands to the United States in trust for the communities. 94 Stat. at 3262 (emphasis added). Because the trust was created by the 1888, 1889, and 1890 Acts for the loyal Mdewakanton, legal title was in the United States but equitable title was held by the loyal Mdewakanton and their lineal descendants. When the 1980 Act transferred the United States’ right, title, and interest in land, that interest appears not to have included the equitable title to the 1886 lands, because the 1980 statute stated that the United States was transferring only that interest it possessed before the Act. Furthermore, the sole object of the Act’s transfer is the 1886 lands, “including any structures or other improvements of the United It may be that the 1980 Act created a 13 trust on a trust, but that possibility and others must be remitted to exploration in future proceedings. The 1980 Act is so poorly drafted that it is difficult to make sense of its provisions. In addition, here as in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980), [t]he principles that it “must [be] presume[d] that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that [it] exercised its best judgment in the premises,” Lone Wolf v. Hitchthingy, 187 U.S. 553, 568, 23 S. Ct. 216, 222, 47 L. Ed. 299, are inapplicable in this case. Id. at 373. 28 States on such lands.” Id. Notably, this description does not include the monies that were, and are, part of the trust’s corpus. This omission further indicates that the trust persists. The Department of Interior interpreted the 1980 Act to shift the authority to determine the uses of the land from the Department of Interior to the three communities. Repeals by implication are not favored by this court, and when “‘two statutes are capable of co-existence, it is the clear duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’” Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1374 (Fed. Cir. 2002) (quoting Horner v. Jeffrey, 823 F.2d 1521, 1527-28 (Fed. Cir. 1987)). Absent an explicitly expressed intention by Congress to terminate the trust, the court will endeavor to reconcile the trust created by the Acts of 1888, 1889, and 1890, as well as the consent requirement in the 1901 Act, with the 1980 Act. For the present, it is enough to conclude that the 1980 Act did not terminate the trust created respecting the 1886 property and that the United States still retains its powers and obligations as trustee regarding 1886 property.13 (c) Money-mandating duty. The government vigorously argues that the United States does not owe a “moneymandating” duty to the plaintiffs. Def.’s Mot. to Dismiss at 10-20. For this court to have jurisdiction over a case, the United States must waive its sovereign immunity; the Tucker Act constitutes such a waiver, but only if the plaintiffs’ substantive right comes from another source of law. See Mitchell II, 463 U.S. at 216. The Supreme Court in Mitchell II held that the source of substantive law must “fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” Id. at 218. Twenty years later, the majority in White Mountain Apache stated that “t is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be ‘lightly inferred’. . . a fair inference will do.” 537 U.S. at 473 (emphasis added). The Federal Circuit has interpreted White Mountain Apache to redefine the test from Mitchell II: 14A principal divergence between the majority and the dissent in Fisher is whether this lower threshold should satisfy both a jurisdictional challenge under RCFC 12(b)(1) and a challenge on the merits under 12(b)(6), or apply only to the jurisdictional inquiry. Id. at 1377-78. The majority deferred this question because it was unnecessary to a ruling in the Fisher case. Id. at 1378. The dissenting judge would have reached the question and decided that the less rigorous test should be applied to the merits as well as to the jurisdictional determination. Id. at 1387, 1389-90 (Dyk, J. dissenting). 15This is so regardless of which of the Fisher variants of the White Mountain Apache standard is applied. See supra, n.14. 29
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Post by mdenney on Feb 11, 2007 13:44:29 GMT -5
PART 11
The previous test of ‘fairly interpreted as mandating compensation’ is now stated as whether the statute in question is ‘reasonably amenable to the reading that it mandates a right to recovery in damages’. . . . The new test clearly lowers the threshold for establishing that a statute or regulation is money-mandating, for it replaces a normal ‘fairly interpreted’ test with a less demanding test of ‘reasonable amenability’ based on ‘fair inferences.’ Fisher v. United States, 364 F.3d 1372, 1377 (Fed. Cir. 2004).14 The government interprets White Mountain Apache to require a two-step inquiry: first, the court decides whether the government owed a duty to the plaintiff, and second, it determines whether the substantive law can be fairly interpreted as mandating compensation where that duty is breached. Def.’s Reply at 15; see also White Mountain Apache, 537 U.S. at 479-80 (Ginsburg, J., concurring). In the present case, the plaintiffs have established that the United States had a money-mandating duty to them.15 First, the United States owes a fiduciary duty to the plaintiffs. The previous discussion describes in detail the United States’ creation of a trust along with accompanying fiduciary duties. See supra, at 24-27. The United States’ obligations in this case are more demanding than those in White Mountain Apache and Mitchell II, in both of which enforceable fiduciary duties were found to exist. Mitchell II held that various congressional acts imposed a fiduciary duty on the government regarding timber sales, among other things citing a “1910 Act [that] empowered the Secretary to sell timber on unallotted lands and apply the proceeds of the sales for the benefit of the Indians.” 463 U.S. at 220. That Act is similar to the 1901 Act empowering the Secretary of Interior to sell lands on behalf of the loyal Mdewakanton, provided he acquired their consent. Act of Feb. 25, 1901, 31 Stat. 805-06. The court in Mitchell II also took account of regulations promulgated by the Office of Indian Affairs, arguing that “a fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians.” 463 U.S. at 220, 225. Similarly, the Minneapolis Area Office for Indian Affairs issued regulations “to provide procedures for the issuing of certificates covering Minnesota Mdewakanton Sioux assignments.” Pls.’ Ex. 25, at 1. White Mountain Apache held that the United States had a money-mandating duty regarding approximately thirty buildings on the 16Similarly, Mitchell I held that the General Allotment Act of 1887 did not impose a fiduciary responsibility on the United States, relying on two key facts: the Indian allottee, rather than the United States, was “responsible for using the land for agricultural or grazing purposes,” and the legislative history suggested that no fiduciary duty was meant to be created. 445 U.S. at 542-43. In the case of the 1886 lands, unlike in Mitchell I, the United States assigned the lands as opposed to allotting them; it also was responsible for leasing the lands to others, collecting rents, and dividing the proceeds among the beneficiaries. In Mitchell I, respecting the statute at issue, Senator Dawes had explained “that the statute as amended would still ensure that title to the land would be transferred to the Indian allottee at the expiration of 25 years.” Id. at 543. No such provision enabled the Mdewakanton to acquire the land after a period of time – it was held in trust. 30 former Fort Apache Military Reservation that were held in trust by the United States for the White Mountain Apache Tribe but occupied by the United States. The Supreme Court determined that the government was invested “with discretionary authority to make direct use of portions of the trust corpus. The trust property is subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes.” White Mountain Apache, 537 U.S. at 475 (internal quotations and citations omitted). Similarly, the Secretary of Interior had a reasonably well delineated discretion in his or her duties as trustee for the Mdewakanton. By contrast, in Navajo Nation, decided by the Supreme Court on the same day as White Mountain Apache, the United States had a much lesser role in managing property. Navajo Nation held that the Indian Mineral Leasing Act (IMLA) did not confer a fiduciary duty upon the United States, emphasizing that “[t]he Secretary is neither assigned a comprehensive managerial role nor, at the time relevant here, expressly invested with responsibility to secure ‘the needs and best interests of the Indian owner and his heirs.’” 537 U.S. at 507-08. In contrast, the 1889 and 1890 Acts called for the Secretary of Interior to allocate the trust corpus “as may be deemed best in the case of each of these Indians or family thereof.” Act of 1889, 25 Stat. at 992; Act of 1890, 26 Stat. at 349.16 Second, once a duty has been shown, the next question is whether the source of law may “fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” Mitchell II, 463 U.S. at 218. Once it has been shown that the government owes a fiduciary duty as a trustee to a group of plaintiffs, mandatory compensation for a breach of that duty is ordinarily a logical and fair interpretation of the underlying statutory provisions. See, e.g., id. at 226 (“Given the existence of a trust relationship, it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties.”). “[E]lementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch.” White Mountain Apache, 537 U.S. at 475. In this case also, having found that a fiduciary relationship exists, a money-mandating duty follows as a matter of course. Here, there is additionally a direct statutory predicate for a moneymandating duty. The requirement in the 1889 and 1890 Appropriations Acts that if the funds 31
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Post by mdenney on Feb 11, 2007 13:45:22 GMT -5
PART 12
were not all spent during the fiscal year, they must nonetheless be used to support the Mdewakanton, further indicates that if the proceeds of the trust corpus are not used for the benefit of the Mdewakanton, compensation is appropriate. See, e.g., Act of 1889, 25 Stat. at 992. Moreover, as the undisputed record shows, this is not a case in which the lineal descendants of the loyal Mdewakanton were provided a substitute for their beneficial interest. In other words, this is not a case in which the government sought to invoke “the traditional rule that a trustee may change the form of trust assets as long as he fairly (or in good faith) attempts to provide his ward with property of equal value.” Sioux Nation, 448 U.S. at 416. In short, the United States has breached its fiduciary duties, and the applicable law mandates compensation. However, the record is insufficient to show the nature and extent of the breach of fiduciary duty, and it does not begin to address the posture of individual plaintiffs respecting the breach. 2. Breach of Contract In addition to their claim of breach of fiduciary duty, the plaintiffs allege that the loyal Mdewakanton formed a contract with the United States in which they agreed to sever their tribal relations, express loyalty to the United States, and move onto the 1886 lands. In exchange, the United States would purchase the 1886 lands and place them in a trust for the Mdewakanton. Am. Compl. ¶¶ 11-20. Beginning in 1885, John Bluestone allegedly negotiated this contract with Special Agent Walter McLeod. Id. ¶ 13; Pls.’ Cross-Mot. at 13. The 1886 and 1889 censuses recorded which Mdewakanton were willing to enter the contract by severing their tribal relations. Pls.’ Cross-Mot. at 15-16. As plaintiffs would have it, the 1889 and 1890 Acts reflected contract modifications requested by the Mdewakanton. Id. at 16-17. By distributing income, profits, and proceeds arising from the 1886 lands to individuals who are not lineal descendants, the United States has allegedly breached its contractual duty to the plaintiffs. Am. Compl. ¶¶ 52-55. The lineal descendants, as intended beneficiaries of the contract, allegedly have a right to sue for this breach. Pls.’ Cross-Mot. at 42. The government denies the existence of a contract, claiming that “the [1888, 1889, and 1890] appropriations were gratuitous acts by the United States and not contractual obligations.” Def.’s Mot. to Dismiss at 21. The government also argues that the plaintiffs fail to plead the contract in sufficient detail, as required by RCFC 9(h)(3) (“If the claim is founded upon a contract or treaty with the United States, [the complaint shall include] a description of the contract or treaty sufficient to identify it.”). Def.’s Mot. to Dismiss at 22. A contract with the government arises only if three requirements are satisfied: (1) mutual intent to contract, including an offer and acceptance; (2) consideration; and (3) a government representative who had actual authority to bind the government. See La Van v. United States, 382 F.3d 1340, 1346 (Fed. Cir. 2004); American Fed. Bank, F.S.B. v. United States, 62 Fed. Cl. 185, 194 (2004). Plaintiffs claim to meet these elements through a contract implied in fact. Pls.’ Cross-Mot. at 43. Contracts implied in fact are founded upon a meeting of the minds and inferred from the conduct of the parties. Algonac Mfg. Co. v. United States, 428 F.2d 1241, 1255 32 (Ct. Cl. 1970); American Fed., 62 Fed. Cl. at 194. According to the plaintiffs, mutual intent to contract is apparent from the behavior of the respective parties, with the United States’ enactment of the 1888, 1889, and 1890 Appropriations Acts and purchasing the 1886 lands, and with the Mdewakanton moving to those lands and severing their tribal relations. Pls.’ Cross-Mot. at 43- 44. Consideration is allegedly present because the Mdewakanton severed their tribal relations and the United States provided them land. Id. at 44. The government representative who allegedly negotiated the contract was United States Special Agents Walter McLeod and, subsequently, Robert Henton, both of whom supposedly had actual authority under the Acts to bind the government. Id. at 44-45. On the facts as pled by the plaintiffs, it is unnecessary to explore in any detail the questions whether a contract exists between the loyal Mdewakanton and the United States or whether the complaint sets out the allegations of contractual formation in sufficient detail because plaintiffs’ claim of breach of contract is barred on statute of limitations grounds. See infra. C. Statute of Limitations The government further argues that the statute of limitations had expired prior to plaintiffs’ filing of their complaint. Def.’s Mot. to Dismiss at 22-23. Generally, a plaintiff must file a suit against the government within six years after the claim first accrues. 28 U.S.C. § 2501. This statute of limitations is a jurisdictional limitation on the government’s waiver of sovereign immunity and therefore must be construed strictly. See, e.g., Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir. 1988). However, the Indian Trust Accounting Statute quoted supra, at 16, must be taken into account in addressing the generally applicable sixyear statute of limitations. The Indian Trust Accounting Statute was analyzed in much detail and with great care in the Federal Circuit’s recent decision in Shoshone Indian Tribe, 364 F.3d 1339. As Shoshone held, the opening phrase “[n]otwithstanding any other provision of law” combined with the statement that the “statute of limitations shall not commence to run on any claim . . . concerning losses to or mismanagement of trust funds” indicates that the specific provisions of the Indian Trust Accounting Statute trump those of 28 U.S.C. § 2501, the general statute of limitations. 364 F.3d at 1346. Second, Congress chose the phrase “shall not commence to run” as opposed to “tolls,” meaning that the beginning of the limitations period is delayed until an accounting is provided. Id. at 1347. Indeed, in this regard, the Indian Trust Accounting Statute resurrects claims that may previously have been barred by the statute of limitations. This interpretation is consistent with principles of trust law, because “eneficiaries of a trust are permitted to rely on the good faith and expertise of their trustees; because of this reliance, beneficiaries are under a lesser duty to discover malfeasance relating to their trust assets.” Id. In Shoshone, the Federal Circuit interpreted the Indian Trust Accounting Statute to be limited to mismanagement of trust funds and to losses “resulting from the Government’s failure or delay in (1) collecting payments under the sand and gravel contracts, (2) depositing the The government’s briefs filed with 17 its motion to dismiss and in response to plaintiffs’ cross-motion omitted any mention whatsoever of the Indian Trust Accounting Statute. It was not until the court requested supplemental briefing of the Indian Trust Accounting Statute at the hearing on the cross-motions that the government addressed the Statute and issues arising with its application to this case. 18 The government argues that the lineal descendants are ineligible to receive proceeds from the casinos under the 1988 Indian Gaming Regulatory Act, 25 U.S.C. § 2710. Def.’s Supp. Br. at 9 n.4. At this point, the court need not rule on this issue because the breach of fiduciary duty involves more than the failure to gather and distribute proceeds from the casinos. 33
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Post by mdenney on Feb 11, 2007 13:46:19 GMT -5
PART 13 collected monies into the Tribes’ interest-bearing trust accounts, or (3) assessing penalties for late payment.” Id. at 1350. This limitation led the court of appeals to hold claims of asset mismanagement time-barred: “While it is true that a failure to obtain a maximum benefit from a mineral asset is an example of an action that will result in a loss to the trust, the Act’s language does not on its face apply to claims involving trust assets.” Id. In its supplemental brief in this case, the government challenges any applicability of the Indian Trust Accounting Statute.17 The government asserts that the plaintiffs’ claims neither involve a trust nor do they involve trust funds. Def.’s Supp. Br. at 7-10. These claims are unavailing. First, as described previously, a set of closely related appropriation acts of Congress created a trust, and plaintiffs have put at issue the government’s role as trustee. Second, as to whether “trust funds” are at issue here, the government completely ignores that the Department of Interior maintained for years 1886 monies in trust accounts and paid distributions to lineal descendants of loyal Mdewakanton from those accounts. See supra, at 14 (quoting the Field Solicitor’s letter dated February 6, 1981 to the Area Director, regarding, among other things, disposition of the 1886 monies after enactment of the 1980 Act). Moreover, the Department of Interior has adopted guidelines applicable to the administration by the Bureau of Indian Affairs of “Trust Funds For Tribes and Individual Indians.” See 25 C.F.R. Chapter I, Part 115. Those guidelines define “[t]rust 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. The monies held by the Department before 1980 for lineal descendants of the loyal Mdewakanton certainly fall within that definition. In addition, plaintiffs allege instances where proceeds from activities on the 1886 lands have not been distributed in accord with the terms of the trust, including proceeds from a gravel quarry, a cigarette enterprise, a bingo casino, and the current casinos. Pls.’ Supp. Br. at 6-9. These claims respecting proceeds differ from the asset-mismanagement claims at issue in Shoshone, which involved contentions that the United States could have secured a better price under certain leases. Trust funds are the focus of the present case. The Mdewakanton claims deal with distribution of proceeds from leasing, not the leasing itself.18 The government also challenges the applicability of the Indian Trust Accounting Statute because the government so openly disavowed any obligations as trustee after 1980. As the 34 government would have it, this blatant repudiation necessarily triggered the statute of limitations such that it now has expired. Def.’s Supp. Br. at 6. The government relies on the Federal Circuit’s commentary in Shoshone that “ trustee may repudiate the trust by express words or by taking actions inconsistent with his responsibilities as trustee.” 364 F.3d at 1348. However, this argument by the government ignores a crucial caveat by the court of appeals that followed the clause the government quotes: “t is often the case, however, that the trustee can breach his fiduciary responsibilities of managing trust property without placing the beneficiary on notice that a breach has occurred. It is therefore common for the statute of limitations to not commence to run against the beneficiaries until a final accounting has occurred that establishes the deficit of the trust.” Id. In addition, as Shoshone recognizes, the Indian Trust Accounting Statute constitutes a specific exception to the traditional rules regarding applicability of statutes of limitations to claims of breach of trust. Id. at 1348-51. The Indian Trust Accounting Statute categorically applies “[n]otwithstanding any other provision of law.” Thus, the Indian Trust Accounting Statute resuscitates and preserves plaintiffs’ claims of breach of trust, displacing 28 U.S.C. § 2501 in the process. The Indian Trust Accounting Statute does not apply to plaintiffs’ contract claim. Because a congressional waiver of a statute of limitations must be strictly construed, Shoshone held that the Indian Trust Accounting Statute only applied to trust mismanagement and to specific kinds of losses. Id. at 1351. Plaintiffs’ breach of contract claims do not fall within either category. Contrary to the plaintiffs’ claims, the claims for breach of contract began to accrue in 1981 when the United States transferred the trust corpus to the communities. Lower Sioux Amicus Br. App. 4, at 2. The Indian Trust Accounting Statute, because of its explicit scope, cannot save the plaintiffs’ contract claim, which expired in 1987. Plaintiffs raise five additional arguments in an attempt to salvage their contract claim. See Pls.’ Cross-Mot. at 46-49. First, they argue that the breach of contract has taken place within the last six years. This argument fails because claims begin to accrue when all of the actions necessary to formulate the claim have taken place and the claimant knows or should have known of the claims’ existence. See Kinsey v. United States, 852 F.2d 556, 557 n.* (Fed. Cir. 1988). The United States’ refusal to assign lands or send trust proceeds to lineal descendants who did not belong to the communities should have made plaintiffs aware of the alleged breach of contract. Second, and relatedly, they invoke the continuing-claim doctrine. The continuingclaim doctrine “operates to save parties who have pled a series of distinct events – each of which gives rise to a separate cause of action – as a single continuing event.” Ariadne Fin. Servs. v. United States, 133 F.3d 874, 879 (Fed. Cir. 1998). The documentary materials before the court include a letter from the Field Solicitor stating that the 1886 monies would be transferred to the communities in light of the 1980 Act: “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.” Lower Sioux Amicus Br. App. 4, at 2 (Letter from Elmer T. Nitzschke to Edwin Demery (Feb. 6, 1981) (quoted more fully supra, at 14)). This distribution to the 35
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Post by mdenney on Feb 11, 2007 13:47:04 GMT -5
PART 14
communities appears to have taken place in 1981. Since then, the alleged default consists of a failure to gather and segregate 1886 monies and to hold them for the lineal descendants. Third, the plaintiffs claim they did not have adequate notice because the United States insisted that the lineal descendants did not have title. These very statements, however, should have given them notice that the United States was repudiating its alleged contractual duties. Fourth, they request that the court apply equitable tolling to save their contractual claim. Equitable tolling is applied “sparingly” and usually when “the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990). No evidence of such misconduct has been provided. Fifth, plaintiffs claim that Count III, which repeats the claims of breach of contract on behalf of minors, was tolled until three years after the minors reached majority age. This argument fails because, as described above, any alleged breach of contract took place in 1981 at the latest. Eighteen years is the age of majority in Minnesota. See Minn. Stat. § 645.451. The applicable statute of 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. The latest date anyone who had a claim at the time of breach could have turned eighteen is 1999, assuming the breach took place in 1981, and the additional three years gave such a young adult until 2002 to file. This claim was filed in 2003, so the minors’ contract claims are time-barred as well. For the foregoing reasons, plaintiffs’ claims of breach of contract are dismissed. D. The Menominee Tribe Exception As a final jurisdictional issue, the court raises sua sponte the question of whether plaintiffs’ suit is barred by Menominee Tribe v. United States, 607 F.2d 1335 (Ct. Cl. 1979). In Menominee Tribe, the Court of Claims was concerned with a statute terminating a trust for the benefit of the Menominee Tribe. In that context, the court held that it lacked jurisdiction over claims of breach of fiduciary duty when the alleged breach consisted of an act of Congress within Congress’s constitutional powers. Id. at 1344 (“[W]hen the valid acts of Congress itself are assailed as unjust, unfair, in bad faith, or blind to the Indians’ interest – in a case not raising a constitu-tional claim – we do not believe that Congress intended in sections 1491 or 1505 to repose that unusual authority . . . in this court.”). In Menominee Tribe, the Court of Claims conceded that a federal agency or official could render the United States liable for breach of fiduciary duty, but it rejected the proposition that an act of Congress could do so, or at least that Congress would not have intended to waive the government’s sovereign immunity against suit in such circumstances. Id. at 1340. The present case is distinguishable from Menominee Tribe because here it was the Department of Interior that allegedly breached its duty to the lineal descendants, not Congress. As discussed previously, the 1980 Act did not by its terms terminate the trust for the benefit of the lineal descendants of the loyal Mdewakanton. Although the 1980 Act is hardly a model of good legislative drafting, it only conveyed to the communities that title 36 which the United States previously possessed, and the United States had only a bare legal title as trustee because the equitable title belonged to the lineal descendants. Moreover, because the 1980 Act concerned only title to land, it did not address the 1886 monies in any respect. Consequently, the Department of Interior’s distribution of trust funds consisting of monies derived from the 1886 lands allegedly violated its obligations under the trust created by the 1888, 1889, and 1890 Acts of Congress. Menominee Tribe also abjured any jurisdiction over executive actions implementing congressional acts that would be deemed a breach of fiduciary duty. Menominee Tribe, 607 F.2d at 1345 (“Unless the Department violated the Constitution or some outstanding directive of Congress, the United States cannot be held liable for Interior’s affirmative actions or passive omissions with respect to the passage and implementation of the Termination Act.”). In the present case, the Department violated the directives of Congress to serve as a trustee for the lineal descendants. The Department of Interior may have been relying on a misinterpretation of the 1980 Act when it transferred 1886 monies to the communities and thereafter failed to gather, hold, and distribute proceeds from the beneficial use of the 1886 lands, but this reliance does not change its breach of the duties imposed on it by earlier acts of Congress. In short, the Menominee Tribe exception does not operate to divest this court of jurisdiction it otherwise would have under the Tucker Act and the Indian Tucker Act to consider plaintiffs’ claims of breach of trust. Even if Menominee Tribe remains good law, the alleged breach in this case does not stem from a constitutional act of Congress that terminated a trust. Moreover, the court is well aware that Menominee Tribe may well have been overruled by the Supreme Court’s decisions in Mitchell II in 1983 and White Mountain Apache in 2003. In Menominee Tribe, the Court of Claims was reluctant to find that the United States had waived its sovereign immunity over a claim of breach of a fiduciary duty that stemmed from a statute terminating a trust for the benefit of Indians. See, e.g., 607 F.2d 1342 (“t has also been established for at least seventy years that Congress has the unilateral and plenary power . . . to abrogate or modify, by statute, a prior treaty with Indians.”). Even though the Court of Claims in Menominee Tribe conceded that the texts of both the Tucker Act and Indian Tucker Act would have permitted suit, the “historical treatment of consents to Indians to sue the sovereign in this court” justified a limiting interpretation of these Acts. Id. Notably, Mitchell II was decided by the Supreme Court only three years after Menominee Tribe, and Mitchell II discerned no impediment in either the Tucker Act or the Indian Tucker Act to this court’s jurisdiction to consider claims of breach of fiduciary duty, however such claims might arise. In Mitchell II, the Supreme Court concluded that the Tucker Act and the Indian Tucker Act constituted the government’s waiver of sovereign immunity and that no further, or second, waiver of sovereign immunity was needed for this court to have jurisdiction over a claim of breach of fiduciary duty. Further, what was needed was a source of substantive law that could be “fairly . . . interpreted as mandating compensation by the Federal Government for the damages sustained,” creating a money-mandating duty. 463 U.S. at 218. White Mountain Apache 19After Mitchell II, Navajo Nation, and White Mountain Apache, a commentator concluded that the focus was no longer on sovereign immunity in Indian trust cases but rather on a substantive money-mandating source of law: [W]hile a party still must find a substantive money-mandating source of law for a claim beyond the Tucker Act, the party need not find a separate waiver of sovereign immunity elsewhere; nor is the interpretation of that proposed source of substantive law subject to the strict construction rule that otherwise controls the threshold determination of whether the government has waived immunity. Gregory C. Sisk, Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity, 39 Tulsa L. Rev. 313, 335 (2003). 20At this early stage of the case, plaintiffs rest on allegations that they are lineal descendants of the loyal Mdewakanton. Future proceedings will be held to determine whether plaintiffs satisfy their burden of proof on this factual issue. The government argues that the plaintiffs have produced insufficient evidence to prove their standing at the summary judgment stage. See Def.’s Reply at 20 (citing Lujan, 504 U.S. at 561 (holding that for a summary judgment, unlike for resisting a motion to dismiss, plaintiffs must set forth “specific facts” 37
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Post by mdenney on Feb 11, 2007 13:47:27 GMT -5
PART 15 reaffirmed this interpretation of the Tucker Act and the Indian Tucker Act, and arguably eased somewhat the showing required to establish a money-mandating duty. See supra, at 28-30. In short, Mitchell II and White Mountain Apache negated the premise of Menominee Tribe by concluding that there was no basis for a constrained interpretation of the statutory waiver of sovereign immunity in the Tucker Act and Indian Tucker Act, at least in Indian trust cases.19 Finally, even if Mitchell II and White Mountain Apache left any doubt that the Menominee Tribe exception no longer was viable, the Indian Trust Accounting Statutes should dispel any such residuum. The Indian Trust Accounting Statutes reveal a cngressional willingness to resuscitate, preserve, and enable suits against the government as trustee. The Court of Claims’ 1979 decision in Menominee Tribe does not constitute a jurisdictional bar to this suit. Partial Summary Judgment Plaintiffs’ cross-motion for partial summary judgment focuses on three issues: whether the lineal descendants are the trust beneficiaries of the 1886 lands, whether the United States has breached its fiduciary duties, and whether the government has breached its contractual duties. Pls.’ Cross-Mot. at 1. This motion is granted in part and denied in part. As the preceding analysis shows, the plaintiffs are entitled to a partial summary judgment that a trust was created in connection with and as a consequence of the 1888, 1889, and 1890 Acts for the benefit of the loyal Mdewakanton and their lineal descendants, which trust included land, improvements to land, and monies as the corpus. This trust was not extinguished by the 1980 Act, and the statute of limitations does not bar plaintiffs’ claim of breach of fiduciary duty because of the Indian Trust Accounting Statute.20 The undisputed record also shows that the government breached its establishing the court’s jurisdiction)). Here, the plaintiffs have produced undisputed evidence that supports standing to obtain a partial summary judgment with respect to their claims of breach of fiduciary duty. It also engenders concerns about potential class-21 certification proceedings and notice to potential additional parties. These additional questions are addressed in the closing portions of this opinion. 38 fiduciary duties respecting the trust, and partial summary judgment is appropriate in this respect as well. Plaintiffs’ motion is otherwise denied. The record is incomplete as to the extent of the breach by the government of its fiduciary duties. No accounting has been rendered. No inventory of funds and lands constituting the corpus has been made, and plaintiffs who belong to a community may have received benefits. Because plaintiffs include members of each of the three communities as well as non-members, individual plaintiffs may differ insofar as they have suffered injury from the breach. Hr’g Tr. at 47-49. Entry of partial summary judgment in favor of plaintiffs thus does not extend beyond a conclusion that the government has as a general matter breached its fiduciary duties under the trust created for the loyal Mdewakanton and their lineal descendants. Lastly, because the contract claims are being dismissed on statute of limitations grounds, summary judgment cannot be entered on those claims. Accordingly, plaintiffs’ cross-motion for partial summary judgment is granted in part and denied in part. Amendment of the Complaint Plaintiffs have moved for leave to file a Second Amended Complaint to add both additional named and anonymous plaintiffs. Plaintiffs have also moved for an order protecting the identities of the anonymous plaintiffs. By the proposed amendment, the total number of plaintiffs would be raised to more than 500. Pls.’ Mot. for Leave to Amend Compl., Attach. A at 1. The original complaint named 134 individual plaintiffs, and the First Amended Complaint increased the total number of named plaintiffs to 251. Plaintiffs’ request for anonymity pertains to alleged lineal descendants who are currently members of a community and are concerned that their participation would be viewed as adverse to the communities and would risk termination of their membership or who are applying for membership to communities and are concerned they would be denied admission if the communities learn of their participation in this case. Hr’g Tr. at 88-89. Plaintiffs’ motion to amend their complaint raises procedural issues of joinder and public access to judicial proceedings.21 All of the prospective additional plaintiffs must satisfy the requirements of permissive joinder before they can join in this action. In addition, respecting the request of some plaintiffs for anonymity, the court must balance their need for anonymity against 39 potential prejudice to the government and the public’s interest in knowing their identity. For its part, the government represents that it does not oppose plaintiffs’ request to add additional named plaintiffs, but it does object to plaintiffs’ requests to add anonymous plaintiffs and for a protective order. Def.’s Resp. to Pls.’ Mot. for Leave to Amend Compl. at 1. A. Additional Plaintiffs Adding additional individual plaintiffs who allegedly are lineal descendants of the loyal Mdewakanton raises the same issue of joinder as that which arises with the individuals who are currently named as plaintiffs. The pertinent rule, RCFC 20(a), provides that “ ll persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Individual plaintiffs must satisfy the requirements of this Rule. First, all of the plaintiffs would be jointly asserting claims for breach of the same fiduciary duty. As specified in their complaint, the plaintiffs claim to sue as individuals “on behalf of themselves and all other descendants of persons listed on the May 20, 1886 U.S. Mdewakanton census.” Am. Compl. ¶ 2. The court construes this language to mean that the named plaintiffs are asserting their claims jointly and severally, and as representatives of a potential class comprised of four subclasses. See supra, at 16. Thus, all of the prospective plaintiffs would be asserting a right to relief jointly and severally, and, in addition, their claims arise out of the same transaction or occurrence, viz., the trust created by the appropriations statutes enacted in 1888, 1889, and 1890. In that regard, the plaintiffs’ relationship satisfies the first element of Rule 20(a). The plaintiffs’ circumstances in this case are readily distinguishable from the misjoined plaintiffs addressed by the recent decision in Franconia Associates v. United States, 61 Fed. Cl. 335 (2004). In that case, a number of property owners sued the United States for breach of loan agreements, but each plaintiff had entered into a separate agreement. The plaintiffs in Franconia did not meet the first requirement of RCFC 20(a) because, although their claims shared common legal and factual issues, the claims did not arise out of the same transaction or occurrence. Id. at 337. Second, in this case there are questions of law or fact that would be common to all of the plaintiffs. This requirement “is usually easily satisfied, particularly since there must be only one such overlapping question.” Id. at 336. Here, all or most of the legal issues would be common to the plaintiffs, as would many of the factual issues. In sum, permissive joinder of additional lineal descendants of the loyal Mdewakanton is proper under RCFC 20(a), and, accordingly, plaintiffs are granted leave to file a Second Amended Complaint to add such plaintiffs. 40 B. Anonymous Plaintiffs RCFC 10(a) provides that the title in a complaint “shall include the names of all the parties.” The use of pseudonyms in a complaint is contrary to this requirement. Consequently, courts allow parties to proceed anonymously only where unusual circumstances justify concealing a party’s identity. See Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000) (collecting cases). Five federal courts of appeals that have reviewed a trial court’s denial of a party’s request to proceed anonymously have instructed trial courts to balance the competing interests involved. See id. at 1068; M.M. v. Zavaras, 139 F.3d 798, 803-04 (10th Cir. 1998); James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320, 323-24 (11th Cir. 1992); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). Specifically, these circuits have held that a trial court should weigh the party’s need for anonymity against the general presumption that parties’ identities be available to the public and the likelihood of prejudice to the opposing party. Advanced Textile, 214 F.3d at 1068 (citations omitted). The Ninth Circuit has drawn from these precedents five factors to guide a trial court’s inquiry into the need for anonymity where the party seeking anonymity is relying on a fear of retaliation: “(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to such retaliation.” Id. (internal citations omitted). In addition, the court must determine (4) whether disclosure of the party’s identity would best serve the public interest. Id. at 1068-69 (citing Stegall, 653 F.2d at 185, and observing that “‘arty anonymity does not obstruct the public’s view of the issues joined or the court’s performance in resolving them.’”). Finally, and importantly, “[t]he court must also determine [5] the precise prejudice at each stage of the proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice.” Id. at 1068 (citing James, 6 F.3d at 240-41). The plaintiffs aver that certain alleged lineal descendants, including both those who are currently members of a community and those who are applying for membership in a community, would face retaliation by their respective community. Hr’g Tr. at 88-89. The government asserts that plaintiffs have not made a compelling showing in support of their request for anonymity. Def.’s Resp. to Pls.’ Mot. for Leave to Amend Compl. at 2-3. Respecting the severity of a threatened harm in general, some courts have opined that “some embarrassment or economic harm is not enough,” but rather, “[t]here must be a strong social interest in concealing the identity of the plaintiff.” Doe v. Rostker, 89 F.R.D. 158, 162 (N.D. Cal. 1981) (citing Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir. 1975)). “The common thread running through these cases [addressing requests by plaintiffs for anonymity] is the presence of some social stigma or the threat of physical harm to the plaintiffs attaching to disclosure of their identities to the public record.” Rostker, 89 F.R.D. at 161. In all events, for purposes of supporting their request for leave to add anonymous plaintiffs, the plaintiffs in the instant case have established that the threatened harm justifies their 41 request. The anonymous plaintiffs not only risk economic harm through the loss of per-capita payments but also risk loss of membership in the communities in which they are, or are seeking to become, members. Plaintiffs’ fears are reasonable because the communities oppose this lawsuit both jurisdictionally and on the merits, and the community governments possess nearly a plenary power over community membership. See Pls.’ Opp’n to Amicus App. Ex. 9, at 2 (Prairie Island Const. art. III, §§ 4-5); id., Ex. 10, at 2 (Lower Sioux Const. art. III, §§ 4-5); id., Ex. 13, at 1 (Shakopee Const. art. II, §§ 1(c), 2). Finally, lineal descendants who are either members or seeking to become members of Shakopee and Prairie Island Communities are particularly vulnerable to retaliation because they are minorities in those communities. Hr’g Tr. at 89-90. Against plaintiffs’ need for anonymity must be balanced the risk, if any, of unfairness to the government. The government asserts that pseudonyms would make difficult the task of verifying the identity, tribal membership, and ancestry of each anonymous plaintiff. The government contends that it may have to consult numerous government agents and possibly the communities themselves to obtain evidence of ancestry. Def.’s Resp. to Pls.’ Mot. for Leave to Amend Compl. at 1-2. This contention is without merit. Respecting the participation of government agents in the verification of plaintiffs’ lineage, all such government agents would be subject to an appropriate protective order. Those government agents would be provided with a list containing each pseudonym and corresponding true name and would be required to maintain the confidential nature of the information contained in that list. Moreover, the government could simply obtain membership lists from the communities and cross-check those lists with the list provided by plaintiffs. The government has not shown that it will be prejudiced by the addition of anonymous plaintiffs at this preliminary stage in proceedings. In this regard, it is instructive that “the balance [among the factors] . . . may change as the litigation progresses.” Advanced Textile, 214 F.3d at 1069. In cases where the plaintiffs have demonstrated a need for anonymity, the district court should use its powers to manage pretrial proceedings, see Fed. R. Civ. P. 16(b), and to issue protective orders limiting disclosure of the party’s name, see Fed. R. Civ. P. 26(c), to preserve the party’s anonymity to the greatest extent possible without prejudicing the opposing party’s ability to litigate the case. It may never be necessary, however, to disclose the anonymous parties’ identities to nonparties to the suit. Id. There also is no indication at this time that the public’s interest in the case would best be served by requiring that all of plaintiffs’ identities be disclosed. More than 250 plaintiffs are named. In the circumstances at hand, the public’s interest is not unduly impaired when some additional similarly-situated plaintiffs proceed anonymously. See Stegall, 653 F.2d at 185. This result also accords with the practice of the Bureau of Indian Affairs in providing anonymity to loyal Mdewakanton who are involved in membership disputes with one of the communities. See 42 supra, at 10 (citing Pls.’ Ex. 33 (Letter from Bureau of Indian Affairs, Midwest Regional Office to Anonymous Mdewakanton (Aug. 20, 2001)). For these reasons, the plaintiffs are granted leave to file a Second Amended Complaint that includes some anonymous plaintiffs. An appropriate protective order will be issued at a later date. Future Proceedings Respecting Class Certification Despite the class allegations in this case, at the hearing on the pending motions, plaintiffs’ counsel represented that he was unsure of his intentions at that time with respect to moving for certification of the class. See Hr’g Tr. at 86-87. RCFC 23, unlike its counterpart in the federal rules, “contemplates only opt-in class certifications, not opt-out classes.” RCFC 23 Rules Committee Note, 2002 Revision; see also Taylor v. United States, 41 Fed. Cl. 440, 448 (1998) (“While the district courts regularly certify class actions on an opt-out basis, the Court of Federal Claims has traditionally applied an opt-in approach to class actions.”). This court applies the criteria for certifying a class set out in Quinault Allottee Association v. United States, 453 F.2d 1272 (Ct. Cl. 1972). See RCFC 23 Rules Committee Note, 2002 Revision. The Quinault Allottee criteria are that: (1) members must constitute a large but manageable class; (2) there is a question of law common to the whole class; (3) a common legal issue overrides separate factual issues affecting individual members; (4) claims of the party plaintiffs are typical of claims of the class; (5) the Government must have acted on grounds generally applicable to the whole class; (6) the claims of many claimants must be so small that it is doubtful they would be otherwise pursued; (7) the party plaintiffs must adequately and fairly protect the interests of the class without conflicts of interest; and (8) the prosecution of individual lawsuits must create a risk of inconsistent or varying adjudications. Taylor, 41 Fed. Cl. at 445 (citations omitted). Although in this case, the large number of plaintiffs already named may constitute the functional equivalent of an opt-in class, a potential problem arises as to notice to those lineal descendants who are not named as plaintiffs. Cf. id. at 448 (Because “the opt-in procedure amounts to little more tha[n] a permissive joinder rule[,] . . . t is . . . of limited use in informing potential class members of the suit and the claimants’ right to join the suit.”). The record does not indicate the extent to which such notice has been accomplished. Thus, the court must reserve for further proceedings the issues respecting class certification and notice. If class certification is sought, the notice provisions of RCFC 23(c)(2)(B) will apply, and notice will be effected in 22RCFC 23(c)(4)(B) provides that “a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.” 23RCFC 14(b) provides in part as follows: (b) Notice to Interested Parties. (1) The court, on its own motion or on the motion of a party, may notify any person with legal capacity to sue and be sued and who is alleged to have an interest in the subject matter of any pending action. Such notice shall advise of the pendency of the action and of the opportunity to seek intervention and to assert an interest in the action. 24RCFC 14(a)(1) provides that “[o]n motion of the United States, the court may summon any third person against whom the United States may be asserting a claim or contingent claim for the recovery of money paid by the United States in respect of the transaction or matter which constitutes the subject matter of the suit to appear as a party and defend the third party’s interest, if any, in such a suit.” The notice should also address this court’s jurisdiction. Compare United States v. Wurts, 303 U.S. 414, 415-16 (1938); DeSilvestro v. United States, 405 F.2d 150, 155 (2d Cir. 1968); and 28 U.S.C. §§ 1503, 2508, with Barrett Ref. Corp. v. United States, 242 F.3d 1055, 1062 (Fed. Cir. 2001). See generally Bank One, Michigan v. United States, __ Fed. Cl. __, No. 01-325C, slip op. at 6 (July 31, 2003). 43 accord with those provisions. If plaintiffs do not move to certify a class or subclasses,22 they shall propose to the court a procedure for providing notice to all lineal descendants who are not named as parties in this action in accord with RCFC 14(b).23 See also Hoffman La Roche Inc. v. Sperling, 493 U.S. 165, 170, 171 (1989) (a federal trial court has a responsibility to oversee joinder of additional parties in an orderly manner); RCFC 83(b) (courts may “regulate practice in any manner consistent with federal law or rules”). On or before January 10, 2005, plaintiffs shall either move for class certification or they shall propose means of providing notice in compliance with RCFC 14(b). Potential Summons under RCFC 14(a) In light of the court’s resolution of the dispositive motions, the government shall inform the court whether it seeks to request that summons be issued pursuant to RCFC 14(a).24 Such notice or motion shall be filed with the court on or before February 10, 2005. CONCLUSION For the reasons stated, the court denies the government’s motion to dismiss this action respecting counts I (trust mismanagement) and IV (claim for attorney’s fees). The court, however, 44 grants the government’s motion to dismiss count II (breach of contract) and the contract claims in count III (separately-pled claims of minor class plaintiffs). The trust mismanagement claims of count III are deemed to be subsumed within count I. The court grants plaintiffs’ cross-motion for partial summary judgment that (1) a trust was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the loyal Mdewakanton and their lineal descendants, which trust included land, improvements to land, and monies as the corpus, (2) such trust was neither extinguished nor terminated by the 1980 Act, and (3) such trust was breached by the United States through actions taken in December 1980 and thereafter. The court otherwise denies the plaintiffs’ motion for partial summary judgment. Plaintiffs’ motion for leave to file a Second Amended Complaint is granted, as is plaintiffs’ motion for leave to include anonymous plaintiffs. Plaintiffs’ Second Amended Complaint shall be filed on or before January 10, 2005. A separate protective order will be issued respecting anonymous plaintiffs. The motions to participate as amici curiae filed by the Lower Sioux Indian Community in Minnesota, the Shakopee Mdewakanton Sioux (Dakota) community, the Prairie Island Indian Community in Minnesota, and Raymond Cermak, Sr. are granted. The participation by amici curiae shall be limited to filing briefs. On or before January 10, 2005, plaintiffs shall either file a motion for certification of a class and subclasses, or they shall file a proposed means of providing notice to interested parties pursuant to RCFC 14(b). On or before February 10, 2005, the government shall file a notice informing the court whether it seeks to request that summons be issued pursuant to RCFC 14(a). IT IS SO ORDERED. ___________________________ Charles F. Lettow Judge
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Post by mdenney on Mar 8, 2007 21:12:20 GMT -5
The White Report on eligibility By Griff Wigley Historian Bruce White sent me this report (21 page PDF) he wrote for the Organization of Mendota Dakota (OMD) earlier this year. On the cover it reads: Eligibility under the 1888, 1889, and 1890 Federal Appropriations for the Mdewakanton Sioux of Minnesota A Report Prepared for the Organization of Mendota Dakota, April 2006 Bruce M. White, PhD Turnstone Historical Research St. Paul, Minnesota The Wigleys of Mendota - Our family tree and other matters Eligibility under the 1888, 1889, and 1890 Federal Appropriations for the Mdewakanton Sioux of Minnesota ... www.wigley.us/ wigley.us/wp-content/uploads/WhiteReport040306.pdfThere page this is on wigley.us/page/2/
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Post by mdenney on Mar 8, 2007 21:17:10 GMT -5
Native American Rights Fund, National Indian Law Library, Indian Law ... ... the United States during the Sioux Outbreak in Minnesota, as reflected in Appropriations Acts of 1888, 1889, 1890 ... Because the Act evinces no such express Congressional intent, and b... www.narf.org/nill/bulletins/dct/2004dct.htm link below- www.narf.org/nill/bulletins/dct/2004dct.htmThis is where it takes you or what your find from link above and other cases. Wolfchild v. United States 62 Fed.Cl. 521, No. 03-2684L United States District Court, M.D. Louisiana, October 27, 2004. Added 5/25/06 Subjects: Fiduciary accountability -- United States; Trusts and trustees – Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims. *Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862 brought suit against the United States for breach of fiduciary duty and contract in the management of property originally provided for the benefit of loyal Mdewakanton. Government filed motion to dismiss, and plaintiffs filed cross-motion for partial summary judgment. *Holding: The Court of Federal Claims, Lettow, J., held that: (1) United States created a trust for Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota, as reflected in Appropriations Acts of 1888, 1889, 1890 and 1901; (2) trust was not terminated by 1980 Act which transferred whatever title the United States had in certain trust land to the United States in trust for three Mdewakanton Sioux communities in Minnesota; (3) Indian Trust Accounting Statute applied to breach of fiduciary duty claims; and (4) breach of contract claim accrued in 1981, and thus was untimely. Defendant's motion granted in part and denied in part; plaintiffs' cross-motion granted in part and denied in part. link below- www.narf.org/nill/bulletins/dct/unreported/fc_wolfchild.html---------------------------------------------------- Wolfchild v. United States 62 Fed.Cl. 521, No. 03-2684L United States Court of Federal Claims, Oct. 27, 2004 Subjects: Fiduciary accountability -- United States; Trusts and trustees – Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims. *Synopsis: Lineal descendants of Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota during 1862 brought suit against the United States for breach of fiduciary duty and contract in the management of property originally provided for the benefit of loyal Mdewakanton. Government filed motion to dismiss, and plaintiffs filed cross-motion for partial summary judgment. *Holding: The Court of Federal Claims, Lettow, J., held that: (1) United States created a trust for Mdewakanton Sioux who were loyal to the United States during the Sioux Outbreak in Minnesota, as reflected in Appropriations Acts of 1888, 1889, 1890 and 1901; (2) trust was not terminated by 1980 Act which transferred whatever title the United States had in certain trust land to the United States in trust for three Mdewakanton Sioux communities in Minnesota; (3) Indian Trust Accounting Statute applied to breach of fiduciary duty claims; and (4) breach of contract claim accrued in 1981, and thus was untimely. Defendant's motion granted in part and denied in part; plaintiffs' cross-motion granted in part and denied in part. link below- www.uscfc.uscourts.gov/Opinions/Lettow/04/LETTOW.Wolfchild.pdf---------------------------------------------------
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Post by mdenney on Mar 8, 2007 21:19:57 GMT -5
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Post by mdenney on Mar 8, 2007 21:22:32 GMT -5
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Post by mdenney on Mar 8, 2007 21:26:10 GMT -5
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Post by mdenney on Mar 8, 2007 23:05:40 GMT -5
I like this part _ because the courts ask people to show they were on these lands in 1886 lol .. This report was done by Bruce M. White, PhD Turnstone Historical Research St. Paul, Minnesota The purpose of this report is to provide guidance in determining eligibility under the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Mdewakanton Sioux (now usually Dakota) of Minnesota. Although I began work on the specific questions described in this report in November 2004, when I discussed with individuals of Mdewakanton Sioux ancestry the October 27, 2004, Court of Claims opinion and order, I have spent the last 25 years studying American Indian history in Minnesota, as described in my attached vita. In 1979, while an editor and researcher with the Minnesota Historical Society, I was sent to the National Archives in Washington, D.C., to select and have microfilmed a number of Sioux censuses and annuity rolls. I discuss some of those censuses and rolls, including the McLeod 1886 roll and James McLaughlin’s 1899 census, in this report. In addition, for the past four years, I have been studying the family histories of a number of Mdewakanton Sioux whose families have been in Minnesota for hundreds of years and whose direct ancestors were in Minnesota on May 20, 1886. The opinions I have formed based on my research and review of relevant documents are set forth in detail below. The 1888, 1889, and 1890 Appropriation Acts On June 29, 1888, the U.S. Congress passed an appropriation “for the support of the fullblood 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” (U.S. Stat. 25: 228). The next year, on March 2, 1889, another appropriation was passed to benefit and to buy lands for the same group of Indians “or family thereof,” with language adding that those who were “engaged in removing to said State, and have since resided therein” would also be included (U.S. Stat. 25: 992). On August 19, 1890, Congress passed a further appropriation for the support of the same group, including “full and mixed blood Indians” (U.S. Stat., 26: 349). An undefined portion of the money appropriated under these acts was intended to purchase land. Although the lands purchased with the 1888, 1889, and 1890 congressional appropriations are commonly referred to as the “1886 lands,” they were not purchased in 1886 (U.S. Federal Court of Claims, Opinion and Order, October 27, 2004, p. 7). The United States did not start purchasing the 1886 lands until January 1889. As of 1980, the 1886 lands consisted of: (1) approximately 260 acres in Scott County (Shakopee lands); (2) approximately 575 acres in Redwood county (Lower Sioux lands); and (3) approximately 120 acres in Goodhue County (Prairie Island lands). Eligibility for Benefits under the 1888, 1889, and 1890 Appropriation Acts As documented in a variety of sources, the purpose of the 1888, 1889, and 1890 appropriations was to provide for those Mdewakanton Sioux in Minnesota who had been loyal to the United State during the 1862-63 Dakota Conflict and who could not take part in tribal relations with other Mdewakanton Sioux (Sept. 15, 2004, “Appendix of Exhibits ( The United States did not start purchasing the 1886 lands until January 1889. As of 1980, the 1886 lands consisted of: (1) approximately 260 acres in Scott County (Shakopee lands); (2) approximately 575 acres in Redwood county (Lower Sioux lands); and (3) approximately 120 acres in Goodhue County (Prairie Island lands ). link below- wigley.us/wp-content/uploads/WhiteReport040306.pdf
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Post by tamara on Mar 9, 2007 10:53:48 GMT -5
Ha!! good point, Mike! so they really must me simply mdewakanton in minnesota, right? Wasnt Lorenzo Lawrence living in northern minnesota?
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Post by mdenney on Mar 9, 2007 14:11:49 GMT -5
In the United States Court of Federal Claims (PDF) ... and eighty-six, and severed their tribal ... 25 Stat. 217, 228-29. ... (codified at 25 U.S.C. §§ 461, 462, 463, 464, 465, 466 to 470, 471 to 473, ...www.uscfc.uscourts.gov/Opinions/Lettow/04/LETTOW.Wolfchild.pdf - 248k - View as html - More from this site link below- www.uscfc.uscourts.gov/Opinions/Lettow/04/LETTOW.Wolfchild.pdf
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Post by mdenney on Mar 9, 2007 15:08:47 GMT -5
I sitting here and looking at this that is written here from link above. And then I think about all I have read !!
My understanding on this is That yes Some of the Tribe members were not happy with the ones that did not help and some were understanding that this war could not be won, but still had to go battle they had no food and some were friends with the whites and didnt want to fight the whites because they were friends and then some indians just Knew that a battle with the whites could not be won they knew this from the past battles. And now after I wont say alot but use the word afew of the indians wanted to save there familys they didnt want to lose there love ones and They did not join in the battle then, but noted in afew stories the Indians that did go to war did attack the whites living around the indians and the friendly indians were under attack too not by all the attackers but afew of them. But as noted in many stories of war, You will always find this .. But this case is so strange because the United states laws used these words when the indians back then did not understand them.
( severed their tribal relations ) They did not give up there tribe they just wanted to live.
I will use the word alot of the whites didnt care a indian was a indian even if he was a halfbreed.. Look when they took all the indian prisoners and mixed them together, friendly ones and the one that went to war ..The soldiers just grouped them together.
But now we come to the Scouts I have read in alot of stories about them being forced to do what they did ..or be killed
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,
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