U.S. Supreme Court Petition for Writ of Certiorari

[mdenney]

Notes by
Erick G. Kaardal


November 6, 2009

Dear all:

We did it!

Today, the 1886 Mdewakanton filed their petition for writ of certiorari in the United States Supreme Court. A copy is linked to this page in the right-hand column.

Please read it to keep informed of developments in the case.

The government's response is due in 30 days.

Thank you.

egk


www.mklaw.com/mdewakanton.htm


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U.S. Supreme Court Petition for Writ of Certiorari



1886 Mdewakanton Petition for Writ of Certiorari to the U.S. Supreme Court

www.mklaw.com/documents/22166pdfGrzybek.pdf


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I Have posted the full 1886 Mdewakanton Petition for Writ of Certiorari to the U.S. Supreme Court

Under this post so there is no need to go anywhere but right here to read it OK .

[mdenney]

No. _________
================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
SHELDON PETERS WOLFCHILD, et al.,
Petitioners,
vs.
UNITED STATES,
Respondent.
--------------------------------- ♦ ---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
--------------------------------- ♦ ---------------------------------
PETITION FOR WRIT OF CERTIORARI
--------------------------------- ♦ ---------------------------------
ERICK G. KAARDAL
Counsel of Record
WILLIAM F. MOHRMAN
MOHRMAN & KAARDAL, P.A.
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
[phone]
Attorneys for Petitioners
[Additional Counsel Listed On Inside Cover]
================================================================
thingyLE LAW BRIEF PRINTING CO. [phone]
OR CALL COLLECT [phone]

[mdenney]

Of Counsel:
SAM S. KILLINGER
RAWLINGS, NIELAND,
KILLINGER, ELLWANGER,
JACOBS, MOHRHAUSER &
NELSON, L.L.P.
522 4th Street, #300
Sioux City, Iowa 51101
712-277-2373
LARRY B. LEVENTHAL
LARRY LEVENTHAL
& ASSOCIATES
319 Ramsey Street
Saint Paul, Minnesota 55102
612-333-5747
RANDY V. THOMPSON
NOLAN, MACGREGOR,
THOMPSON & LEIGHTON
710 Lawson Commons –
380 St. Peter Street
Saint Paul, Minnesota 55102
651-227-6661
ROYCE DERYL EDWARDS, JR.
606 South Pearl Avenue
Joplin, Missouri 64801
417-624-1962
BERNARD J. ROONEY
84 Park Avenue
Larchmont, New York 10538
914-833-9104
NICOLE NACHTIGAL EMERSON
LYNN, JACKSON, SCHULTZ &
LEBRUN, P.C.
P.O. Box 2700
Sioux Falls, South Dakota 57101
605-332-5999
GARRETT J. HORN
HORN LAW OFFICE
P.O. Box 886
Yankton, South Dakota 57078
605-260-4647
KELLY H. STRICHERZ
P.O. Box 886
Yankton, South Dakota 57078
605-624-3333
ELIZABETH T. WALKER
WALKER LAW LLC
112 South Royal Street
Alexandria, Virginia 22314
703-838-6284

[mdenney]

i
QUESTIONS PRESENTED
A Court of Appeals for the Federal Circuit decision
illuminates post-Carcieri conflicts with the
Eighth Circuit, Ninth Circuit, the Federal Circuit
itself and the Supreme Court regarding federal court
subject matter jurisdiction over Indian claims of
statutory violations against the United States. On the
one hand, decisions such as Carcieri v. Salazar, ___
U.S. ___, 129 S.Ct. 1058 (Feb. 24, 2009) reflect that
subject matter jurisdiction exists over federal government
statutory violations on matters involving
tribal governments recognized after the 1934 Indian
Reorganization Act. Carcieri is in accord with Ninth
Circuit decisions that an Indian tribe’s sovereignty
does not prevent the federal government from exercising
superior federal sovereign powers. United
States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th
Cir. 1986). On the other hand, the Federal Circuit
and the Eighth Circuit deny federal court subject
matter jurisdiction to enforce federal statutory obligations
and legal rights to individual Native American
beneficiaries when post-1934 IRA non-tribal community
governments are involved. Wolfchild v. United
States, 559 F.3d 1228 (Fed. Cir. 2009); Smith v.
Babbitt, 100 F.3d 556 (8th Cir. 1996).
1. After Carcieri, whether federal court subject matter
jurisdiction exists over Native American beneficiary
claims of purported federal government
violations of the 1934 IRA or other applicable
federal statutes when post-1934 IRA non-tribal
community governments are involved.

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ii
QUESTIONS PRESENTED – Continued
2. Whether the Federal Circuit’s holding of “statutory
use restrictions” in Congressional Appropriation
Acts establishing statutory obligations on
the United States, but no “trust,” departs from
applicable statutory interpretation and trust
principles set forth in United States v. Mitchell,
463 U.S. 206 (1983) and its progeny.
3. Whether the Federal Circuit’s holding that a
1980 Congressional Act terminated a trust impermissibly
conflicts with the First Circuit’s
decision in Passamaquoddy Tribe v. Morton, 528
F.2d 370 (1st Cir. 1979) in that the Federal
Circuit failed to consider the 1934 IRA’s extension
of all Native American trusts under 25
U.S.C. § 462 and failed to apply the “clear and
unambiguous requirement” for a trust termination
act.

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iii
LIST OF PARTIES
A list of parties has been provided to the Clerk of
Court for the Supreme Court under a separate filing
due to the numerous Petitioners represented (in
excess of 10,790 individuals).
CORPORATE DISCLOSURE STATEMENT
The Petitioners are not and do not represent a
nongovernmental corporation.

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iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .................................. i
LIST OF PARTIES ................................................. iii
CORPORATE DISCLOSURE STATEMENT ........ iii
JURISDICTION ..................................................... 1
STATUTORY PROVISIONS INVOLVED ............. 2
STATEMENT OF THE CASE ................................ 2
A. The Underlying Facts .................................. 8
1. An Indian conflict resulted in harsh
Congressional reaction, but to those
who remained loyal to the United
States, promises of land ........................ 8
2. The 1934 IRA Preserved 1886
Mdewakanton Rights and Allowed the
Creation of Post-1934 IRA Non-tribal
Community Governments, But the
Communities’ Constitutions Subsequently
Jeopardized 1886 Mdewakanton
Rights to 1886 Lands ............................ 11
(a) The 1936 post-1934 IRA non-tribal
community governments .................. 11
(b) The 1969 post-1934 non-tribal IRA
community ........................................ 14
3. The United States holds lands in trust
for the post-1934 IRA non-tribal Communities
................................................. 15



v
TABLE OF CONTENTS – Continued
Page
B. The U.S. Court of Federal Claims Proceedings
........................................................ 17
In Wolfchild I, the trial court finds
Congressional Appropriation Acts created
a trust and that the United States
breached that trust .................................... 17
C. Proceedings on Appeal ................................. 19
The Federal Circuit reverses the lower
court ........................................................... 19
REASONS FOR GRANTING THE PETITION ..... 21
I. The Federal Circuit’s “Statutory Use
Restriction” Derived from Appropriation
Acts Creates a Substantive Enforceable
Right, But Without a Legal Forum for
Adjudication, Contrary to Carcieri and
Ninth Circuit Decisions That Provide For
Subject Matter Jurisdiction ......................... 21
II. The United States Initially Enforced
Its Obligations to Individual 1886 Mdewakanton,
But Later Abandoned Those
Obligations in Lieu of Post-1934 IRA
Communities and Excluded 1886 Mdewakanton
From Benefits Derived From the
1886 Lands ................................................... 26
III. The Federal Circuit’s Statutory Interpretation
of the Appropriation Acts Contradicts
Supreme Court Precedent in Mitchell
I, Mitchell II, White Mountain Apache,
Navajo I, Navajo II and Carcieri ................. 31




vi
TABLE OF CONTENTS – Continued
Page
IV. The Federal Circuit’s Statutory Interpretative
Approach on the Second Certified
Question Contradicts the Plain Meaning
Rule, Carcieri, 25 U.S.C. § 462, Passamaquoddy’s
“Plain and Unambiguous” Requirement
and Established Congressional
Practice Regarding Indian Trust Termination
........................................................... 40
CONCLUSION ....................................................... 45
APPENDIX INDEX
Wolfchild v. United States, 559 F.3d 1228 (Fed.
Cir. 2009) .......................................................... App. 1
Wolfchild v. United States, 78 Fed.Cl. 472
(2007) .............................................................. App. 76
United States Court of Appeals for the Federal
Circuit Order, dated June 11, 2009 ............. App. 112
Solicitor Memorandum to Assistant Commissioner
of Indian Affairs, dated April 15,
1938 .............................................................. App. 117
Prairie Island Indian Community in Minnesota
Constitution, dated June 12, 1936 .............. App. 120
Lower Sioux Indian Community in Minnesota
Constitution, dated May 25, 1936 ............... App. 128
Shakopee Mdewakanton Sioux Community of
Minnesota Constitution, dated November 28,
1969 .............................................................. App. 136
Indian Land Certificate, dated December 13,
1979 .............................................................. App. 139




vii
TABLE OF CONTENTS – Continued
Page
Lanny Ross vs. Shakopee Mdewakanton Sioux
Community, Court of the Shakopee
Mdewakanton Sioux Community decision,
dated July 17, 1992 ...................................... App. 143
Appropriation Act of June 29, 1888, ch. 503, 25
Stat. 217 at 228 ............................................ App. 154
Appropriation Act of March 2, 1889, ch. 412, 25
Stat. 980 at 992 ............................................ App. 154
Appropriation Act of August 19, 1890, ch. 807,
26 Stat. 336 at 349 ....................................... App. 155
Act of December 19, 1980, Pub. L. No. 96-557,
94 Stat. 3262 (relevant provisions) ............. App. 157
1934 Indian Reorganization Act, Pub. L. 73-383,
48 Stat. 983 (1934) (relevant provisions) .... App. 159




viii
TABLE OF AUTHORITIES
Page
CASES
Bristol-Myers Squibb Co. v. Royce Lab., 69 F.3d
1130 (Fed. Cir. 1995) ............................................... 37
Canadian Lumber Trade Alliance v. United
States, 517 F.3d 1319 (Fed. Cir. 2008) .................... 37
Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct.
1058 (Feb. 24, 2009) ........................................ passim
Duncan v. United States, 229 Ct. Cl. 120, 667
F.2d 36 (1981) .............................................. 33, 38, 39
Joint Tribal Council of the Passamaquoddy Tribe
v. Morton, 528 F.2d 370 (C.A. Me. 1975) .......... 40, 44
Shakopee Mdewakanton Sioux (Dakota) Community
v. Babbitt, 107 F.3d 667 (8th Cir.
1997) ........................................................................ 16
Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996),
cert. denied sub nom., Freezor v. Babbitt, 522
U.S. 807 (1997) ........................................ 5, 22, 29, 31
United States v. Gonzales, 520 U.S. 1, 117 S.Ct.
1032, 137 L.Ed.2d 132 (1997) ................................. 34
United States v. Mitchell, 445 U.S. 535 (1980)
(“Mitchell I”) .......................................... 21, 31, 32, 39
United States v. Mitchell, 463 U.S. 206 (1983)
(“Mitchell II”) .................................................. passim
United States v. Navajo Nation, 537 U.S. 488
(2003) (“Navajo I”) ............................................ 31, 32



ix
TABLE OF AUTHORITIES – Continued
Page
United States v. Navajo Nation, ___ U.S. ___,
129 S.Ct. 1547 (Apr. 6, 2009) (“Navajo
II”) ..................................................... 7, 31, 32, 33, 34
United States v. White Mountain Apache Tribe,
784 F.2d 917 (9th Cir. 1986) ..................................... 5
United States v. White Mountain Apache Tribe,
537 U.S. 465 (2003) ......................................... passim
United States v. Yakima Tribal Court, 806 F.2d
853 (9th Cir. 1986) .............................................. 5, 25
Wolfchild v. United States, 62 Fed. Cl. 521
(2004) (“Wolfchild I”), rev’d, 559 F.3d 1228
(Fed. Cir. 2009), rehearing en banc denied,
(Jun. 11, 2009) ........................................... 8, 9, 17, 18
Wolfchild v. United States, 68 Fed. Cl. 779
(2005) (“Wolfchild II”) ................................... 8, 10, 19
Wolfchild v. United States, 78 Fed. Cl. 472
(2007) ....................................................................... 19
Wolfchild v. United States, 559 F.3d 1228 (Fed.
Cir. 2009) ......................................................... passim
FEDERAL STATUTES
25 U.S.C. § 462 ................................................... passim
25 U.S.C. § 463 ....................................................... 2, 11
25 U.S.C. § 465 ....................................................... 2, 20
25 U.S.C. § 476 ............................................... 12, 26, 42
25 U.S.C. § 479 ....................................................... 2, 42



x
TABLE OF AUTHORITIES – Continued
Page
25 U.S.C. § 564 ........................................................... 45
25 U.S.C. § 677 ........................................................... 45
25 U.S.C. § 691 ........................................................... 45
25 U.S.C. § 741 ............................................................. 8
25 U.S.C. § 980 ........................................................... 45
28 U.S.C. § 1292 ......................................................... 19
65 Stat. 250 ................................................................. 45
70 Stat. 893 ................................................................. 45
70 Stat. 937 ................................................................. 45
70 Stat. 963 ................................................................. 45
Act of Feb. 16, 1863, 12 Stat. 652 ................................ 8
Act of Dec. 19, 1980, Pub. L. 9-557, 94 Stat.
3262 ................................................................. passim
Act of June 29, 1888, ch. 503, 25 Stat. 217 ........ passim
Act of Mar. 2, 1889, ch. 412, 25 Stat. 980 .......... passim
Act of Aug. 19, 1890, ch. 807, 26 Stat. 336 ........ passim
Pub. L. 73-383, 48 Stat. 984 (1934) Indian
Reorganization Act .......................................... passim
RULES
U.S. Sup. Ct. Rule 10 .................................................... 2



xi
TABLE OF AUTHORITIES – Continued
Page
OTHER AUTHORITIES
Ross v. SMS(D)C, 1 Shak. 86 (July 17, 1992) ............ 30
A Practical Treatise on the Law of Trust, vol. 1,
24 (Thomas Lewin, Frederick Lewin and
James H. Flint, 1st Am. ed., Charles H.
Edson 1888) ............................................................. 37
A Treatise on the Law of Trusts and Estates,
vol. 1, 68 (Jarias Ware Perry, 4th ed., Little
Brown, 1889) ........................................................... 38
76 Am. Jur. 2d Trusts § 36 (2008) .............................. 37
Restatement (Third) of Trusts § 63(3) (2003) ............ 44
Felix Chen, Basic Memorandum on the
Drafting of Tribal Constitutions 5 (David E.
Wilkens, ed. U. of Okla. Press 2006) ...................... 27

[mdenney]

1
PETITION FOR WRIT OF CERTIORARI
Petitioners respectfully pray that a writ of
certiorari issue to review the judgment below.
--------------------------------- ♦ ---------------------------------
OPINION BELOW
The opinion of the United States Court of Appeals
for the Federal Circuit, sitting as a three-judge
panel, is reported at 559 F.3d 1228 (Fed. Cir. 2009)
and is reprinted in the Appendix to the petition at
Appendix 1. The court reversed and remanded the
decision of the United States Court of Federal Claims
reported at 62 Fed. Cl. 521 (2004) at Appendix 161.
--------------------------------- ♦ ---------------------------------
JURISDICTION
The date of the Court of Appeals for the Federal
Circuit decision was March 10, 2009 at Appendix 1.
A timely petition for rehearing and en banc review
was denied on the following date: June 11, 2009.
A copy of the order denying rehearing and en banc
review appears at Appendix 112-15.
An extension of time to file the petition for a writ
of certiorari was granted to and including November
6, 2009 on August 20, 2009, in Application No. 09A192.
The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
--------------------------------- ♦ ---------------------------------


2
STATUTORY PROVISIONS INVOLVED
Pertinent provisions of the 1888, 1889, and 1890
Appropriation Acts: Act of June 29, 1888, 25 Stat. 217
at 228; Act of Mar. 2, 1889, 25 Stat. 980 at 992; Act of
Aug. 19, 1890, 26 Stat. 336 at 349. The Appropriation
Acts are reprinted at Appendix 154-56. Relevant
provisions of the original Indian Reorganization Act
of 1934, as amended, 25 U.S.C. §§ 462, 463, 465, and
479 are reprinted at Appendix 159-60. The Act of Dec.
19, 1980, Pub. L. 9-557, 94 Stat. 3262 is reprinted at
Appendix 157-58.
--------------------------------- ♦ ---------------------------------
STATEMENT OF THE CASE
This petition places squarely before the Court
several issues of national importance arising from
a split in circuit court decisions. With the Federal
Circuit’s holding in Wolfchild v. United States,1 this
petition presents a confluence of conflicting court
decisions from not only the United States Court of
Appeals for the Federal Circuit, the Eighth Circuit,
and Ninth Circuit,2 but also with the Supreme Court.3
In light of this Court’s recent holding in Carcieri v.
1 559 F.3d 1228 (Fed. Cir. 2009), App. 1.
2 U.S. Sup. Ct. Rule 10(a).
3 U.S. Sup. Ct. Rule 10(c).



3
Salazar4 and the circuit splits, the Federal Circuit’s
Wolfchild decision highlights an apparent fundamental
legal and jurisdictional shift of federal court
jurisdiction and Indian trust law.
First, the consequences of the Federal Circuit
decision and resulting circuit splits dramatically
change the legal framework in holding the United
States accountable for legal violations and injustices
regarding Native Americans. It places all Native
Americans in the untenable position of losing federal
court forums to litigate federal obligations to them
and other statutory claims or abuses by post-1934
Indian Reorganization Act5 communities. In short, if
the purported governmental violations involve post-
1934 IRA non-tribal community governments, when
the lands are held in trust for those IRA communities,
affected Native Americans have no federal court
remedy.
Second, with the Federal Circuit’s disregard of
the Supreme Court’s holding in Carcieri, the Circuit’s
decision affects Native American rights nationwide in
matters involving federal holdings of trust lands. In
the instant matter, the United States purchased lands
and held them for the use of a statutorily-defined
“band” of Native Americans – the 1886 Mdewakanton.
4 Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058 (Feb. 24,
2009).
5 Pub. L. 73-383, 48 Stat. 984 (1934) (“1934 IRA”).



4
The United States later abrogated those obligations
and now holds the same lands in trust to another
group of Native Americans – Indian communities
created after the passage of the 1934 IRA. Those post-
1934 IRA non-tribal community governments exclude
the original Congressionally-intended beneficiaries
from any benefits to or derived from the lands held in
trust for them. The Federal Circuit decision suggests
– in contradiction of the IRA, 25 U.S.C. § 462 – that
the Department of Interior does not need express
statutory authorization before replacing Native
American beneficiaries on Indian trust lands.
Third, both the Federal Circuit and the Eighth
Circuit suggest that, if the United States’ obligations
to a definitive class of Native Americans affect
present-day post-1934 IRA non-tribal community
governments, the federal courts have no subject
matter jurisdiction to adjudicate the federal claims of
the affected class because of the “Indian sovereignty”
of the post-1934 non-tribal community governments.
In this case, the benefits derived from lands appropriated
for an identified band of 1886 Mdewakanton
Indians and their descendants presently go only
to members of post-1934 IRA non-tribal community
governments – to the exclusion of all other 1886
Mdewakanton who Congress originally intended. The
Federal Circuit and Eighth Circuit decisions, as
applied, leave these excluded Native American beneficiaries
with no judiciable remedy for statutory
claims or violations under the 1934 IRA because of
the lack of federal subject matter jurisdiction.



5
Fourth, the Federal Circuit and Eighth Circuit
suggest a judicial reluctance to assert subject matter
jurisdiction, despite claims solely against the United
States, if the judgment would require some redistribution
of wealth of post-1934 IRA non-tribal communities
to include the Congressionally-intended
beneficiary class. To the contrary, federal courts
should not rely on purported “Indian sovereignty” of
post-1934 IRA non-tribal community governments to
judicially excuse the United States from complying
with and enforcing all applicable federal laws.
After Carcieri, do federal courts have subject
matter jurisdiction over Indian claims against the
United States for violations of the IRA, Congressional
Acts, and other applicable federal statutes when post-
1934 IRA non-tribal community governments are involved?
Carcieri suggests the federal courts have such
subject matter jurisdiction. The Eighth Circuit decision
in Smith v. Babbitt6 states the opposite. The
Federal Circuit decision appears to fall in line with
Smith v. Babbitt. But, the Ninth Circuit in two
different types of cases, United States v. Yakima
Tribal Court7 and United States v. White Mountain
Apache Tribe,8 have found subject matter jurisdiction
to enforce federal statutory obligations involving
Native American tribes.
6 Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996), cert. denied
sub nom., Freezor v. Babbitt, 522 U.S. 807 (1997).
7 806 F.2d 853, 861 (9th Cir. 1986).
8 784 F.2d 917, 919 (9th Cir. 1986).


6
The Federal Circuit found, for the first time ever,
Native American non-trust “statutory use restrictions”
as possible substantive rights, but without
providing a legal forum for adjudication as applied
when post-1934 IRA non-tribal community governments
are involved.
Fifth, the Federal Circuit’s decision renounced
settled principles of statutory interpretation governing
Indian trust law creation. The Circuit required
Congressional Acts to include explicit words such as
“trust” or “reservation” to create trust obligations.
The Federal Circuit’s decision has now created a new
restriction on Congress’ ability to create trusts not
acknowledged by this Court.
Sixth, the Federal Circuit also rejected settled
principles of statutory interpretation governing Indian
trust law termination. The court did not properly
apply the Plain Meaning Rule to a Congressional Act
passed in 1980, construing it as a trust termination
Act. The Act did not contain the words expressing a
purpose to terminate Indian trust beneficiary rights.
The Federal Circuit decision did not consider and
apply provisions of the IRA, specifically 25 U.S.C.
§ 462, which continues the terms of all Indian trusts
in perpetuity unless Congress “directs” otherwise.
The Federal Circuit did not apply the “plain and
unambiguous” requirement followed by the First Circuit
when determining whether a Congressional Act
terminates an Indian trust. In light of the Federal
Circuit’s decision, what statutory interpretative


7
principles now apply to interpreting Congressional
acts purporting to terminate Indian trust beneficiary
rights?
Finally, with the Federal Circuit’s demand that
Congressional Acts have specific language such as
“trust” or “reservation” to create trust obligations between
Native Americans or Native American tribes
and the United States, has the statutory interpretative
principles of the Supreme Court been eviscerated,
undermined, or modified beyond Mitchell II9
and its progeny, including this Court’s most recent
pronouncement under Navajo II?10
The implications of the doctrinal shift by the
Federal Circuit’s decision are far reaching. The federal
jurisdictional conundrum for Native Americans,
and the Circuit’s restrictive framework and misapplication
of Indian trust law interpretation represents
the need for a definitive resolution by this
Court.
9 United States v. Mitchell, 463 U.S. 206 (1983) (“Mitchell
II ”).
10 United States v. Navajo Nation, ___ U.S. ___, 129 S.Ct.
1547, 1552 (Apr. 6, 2009) (“Navajo II”).


8
A. The Underlying Facts11
1. An Indian conflict resulted in harsh
Congressional reaction, but to those
who remained loyal to the United States,
promises of land.
After an 1862 Sioux uprising in Minnesota, Congress
in 1863 passed an Act that “abrogated and
annulled” all treaties between the federal government
and Minnesota Sioux Indians and “forfeited to the
United States” “ . . . all lands and rights of occupancy
within the State of Minnesota. . . .”12 The federal
government removed all Sioux from Minnesota with
the exception of about 200 Mdewakanton Sioux who
helped rescue whites during the 1862 uprising.
The reward for rescuing whites included “eighty
acres in severalty to each individual of the beforenamed
bands who exerted himself in rescuing whites
from the late massacre of said Indians [as] an inheritance
to said Indians and their heirs forever.” The 80-
acre parcels described in the 1863 Act were never set
aside and the 200 or so loyal Mdewakanton remained
without land in Minnesota for 25 years.
Finally, through Appropriation Acts in 1888,
1889, and 1890 (“Appropriation Acts”), Congress
11 The trial court’s opinions contain a thorough canvass of
the complex factual and legal background of this case. See Wolfchild
I, 62 Fed. Cl. at 526-35, App. 161 and Wolfchild v. United
States, 68 Fed. Cl. 779, 782-83, 785-94 (2005) (“Wolfchild II ”).
12 Act of Feb. 16, 1863, 12 Stat. 652.


9
authorized the Secretary of the Interior to purchase
land and other needed items for the loyal Mdewakanton
in such a manner as the Secretary deemed best
and to ensure that each Indian beneficiary receive
“an equal amount in the value of the appropriation”:
[ . . . ] thousand dollars, to be expended by
the Secretary of the Interior as follows . . .
And all of said money which is to be
expended for lands . . . shall be so expended
that each of the Indians in this paragraph
shall receive, as nearly as practicable, an
equal amount in the value of the appropriation.
13
Interior used $15,529.22 of the $40,000.00 of
appropriated moneys to purchase “lands” in
Minnesota – “the 1886 lands.”14
The lands are acknowledged by all parties to be
currently held in trust by the United States.
The Acts identified the Mdewakanton Indians for
whom “each Indian” would receive the benefit of the
land purchased as the 1886 Mdewakanton:
For the support of the full and mixed blood
Indians in Minnesota heretofore belonging to
the Medawakanton (sic) band of Sioux Indians,
who have resided in said State since
13 App. 154-55.
14 The appropriated lands are “commonly called the ‘1886
lands’ to reflect the effective date of the census that defined the
beneficiaries.” Wolfchild I, 62 Fed. Cl. at 528, App. 179.


10
the twentieth day of May, eighteen hundred
and eighty-six, or who were engaged in
removing to said State, and have since resided
therein, and have severed their tribal
relations . . . as may be deemed best for these
Indians or family thereof . . . 15
A May 20, 1886 census published in September
1886 (prior to enactment of the Appropriation Acts),
later supplemented in 1889, identified the Mdewakanton
beneficiaries of the Appropriation Acts. The
U.S. Court of Federal Claims found the 1886 census
as the “presumptive starting point for indentifying
the loyal Mdewakanton and their descendants”16 – the
“1886 Mdewakanton.”
Interior purchased the 1886 lands in three different
Minnesota locations and implemented a land
assignment system for individual 1886 Mdewakanton.
The assignments, made through land certificates,
stated the 1886 lands as “held in trust by the Secretary
of the Interior for the exclusive use and benefit of
said Indian . . . [and] subject to [re]assignment by the
Secretary of the Interior to some other Indian who
was a resident of Minnesota on May 20, 1886 or a
15 App. 155; Act of Aug. 19, 1890, ch. 807, 26 Stat. 336 at
349. The two previous Appropriation Acts, used the same date of
May 20, 1886, but the language to identify the 1886
Mdewakanton differed slightly: The 1888 and 1889 Acts
identified the Mdewakanton as “full-blood.” Act of June 29, 1888,
ch. 503, 25 Stat. 217 at 228; Act of Mar. 2, 1889, ch. 412, 25 Stat.
980 at 992, App. 154-55.
16 Wolfchild II, 68 Fed. Cl. at 787 n. 10.

[mdenney]

11
legal descendant of such resident Indian.”17 Interior’s
land assignment system remained essentially in place
for approximately 90 years until 1980 – being often
referred to by Interior as an implementation of its
“trust” obligations to the 1886 Mdewakanton.18
2. The 1934 IRA Preserved 1886 Mdewakanton
Rights and Allowed the Creation
of Post-1934 IRA Non-tribal Community
Governments, But the Communities’
Constitutions Subsequently Jeopardized
1886 Mdewakanton Rights to 1886
Lands.
(a) The 1936 post-1934 IRA non-tribal
community governments.
When Congress enacted the Indian Reorganization
Act in 1934, it preserved “existing periods of trust
placed upon any Indian lands . . . until otherwise
directed by Congress.”19 The IRA further provided
that if the Secretary restores surplus lands to “tribal
ownership” the pre-existing “rights or claims of any
persons to [such] lands . . . shall not be affected by
this Act.”20 Recognizing an opportunity, 1886 Mdewakanton
leaders sought to bring all 1886 Mdewakanton
under one political government, despite the
17 E.g., JA2011 (“JA” refers to Federal Circuit joint
appendix submissions).
18 Wolfchild, 559 F.3d at 1248, App. 45.
19 25 U.S.C. § 462.
20 25 U.S.C. § 463.

12
fact the Secretary of the Interior purchased the 1886
lands in three separate Minnesota locations.
Interior denied the suggested governance as
impractical resulting in the creation of three separate
non-tribal political governmental entities, two in
1936, and one in 1969 – the Prairie Island Indian
Community (1936), the Lower Sioux Indian Community
(1936), and the Shakopee Mdewakanton Sioux
Community (1969) (the “Communities”). “Non-tribal”
refers to the fact that the Mdewakanton could not be
recognized as a “historical tribe” due to both 1863 Act
and Appropriation Acts’ requirements to sever tribal
relations.21
IRA provisions, however, allowed non-tribal Native
Americans to form political governments based
on “residence on reservation land.”22 Here, the territorial
provisions of the Lower Sioux and Prairie
Island Constitutions find the 1886 lands, reserved for
the exclusive use of the 1886 Mdewakanton, as the
Communities’ original land base.
Interior guided, drafted, and approved the Communities’
constitutions’ content. The two 1936 constitutions
followed the IRA “trust” directives. The 1969
constitution did not.
21 App. 117-19; JA4656; JA4659-60.
22 25 U.S.C. § 476 (prior to amendments in Pub. L. 100-581,
Stat. 2938-39 (1988) which contained relevant savings clause at
§ 103).


13
For instance, the 1936 community constitutions
incorporated and continued Interior’s land assignment
system preserving the 1886 Mdewakanton descendants’
right to “receive an equal amount in the
value of ” as the Appropriation Acts directed:
• “Nothing . . . [would]be construed to
deprive any Minnesota Mdewakanton
Sioux of any vested right;”23
• That land assignments be made only to
“the Mdewakanton Sioux residing in the
State of Minnesota on May 20, 1886, and
their descendants”24 whether residents
or not within the geographic political
boundaries of each Community;25
As highlighted by the Federal Circuit, an Interior
Solicitor’s 1974 opinion letter concluded that the 1886
lands were best viewed held by the United States in
trust for 1886 Mdewakanton, with Interior’s Secretary
“possessing a special power of appointment
among members of a definite class” and with the
authority to grant an interest in the form of either a
tenancy at will or a defeasible interest in the land.26
A 1978 Interior memorandum confirmed the 1886
Mdewakanton descendants as beneficiaries of the
23 JA1952-57; JA1989-97.
24 JA1955; JA1995.
25 Id. Act of Mar. 2, 1889, 25 Stat. at 992, and Act of Aug.
19, 1890, 26 Stat. at 349, App. 155.
26 Wolfchild, 559 F.3d at 1248, App. 46.

14
1886 lands, not the post-1934 IRA non-tribal community
governments:
It should be stressed that none of the three
Community governments, organized under
the Indian Reorganization Act and operating
under Constitution 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.27
(b) The 1969 post-1934 non-tribal IRA
community.
In 1969, the Department of the Interior, at the
center of organizing the Shakopee Community, allowed
for the Community’s malformation through the
acceptance of both 1886 Mdewakanton and non-1886
Mdewakanton as charter and community members.
Interior accepted the status of the non-1886 Mdewakanton,
knowing the land base for the Community
rested entirely on 1886 lands – lands that were for
the exclusive use of 1886 Mdewakanton and their
descendents. Consequently, the Shakopee constitution
would have no provisions to protect the rights of
the 1886 Mdewakanton and their descendants’ rights
to 1886 lands.
Eventually, all three Communities closed membership
to other 1886 Mdewakanton depriving them
27 JA399-400.

15
of receiving acquired benefits derived from the 1886
and other acquired lands.
Ironically, but for the 1886 Mdewakantons previously
awarded lands and use thereof through the
Appropriation Acts, and the subsequent 90-year Interior
governance over land use to those people, the
now recognized post-1934 IRA non-tribal community
governments would not exist. Yet, over 90% of the
original 1886 Mdewakanton Congressionally-intended
beneficiaries are now excluded by the Communities
because Interior refuses to comply with its statutory
obligations under the Appropriation Acts.
3. The United States holds lands in trust
for the post-1934 IRA non-tribal Communities.
In 1980, Congress passed an act requiring all
right, title and interest in the United States in lands
“which were acquired and are now held by the United
States for the use or benefit of certain Mdewakanton
Sioux Indians under the [Appropriations Acts], are
hereby declared to hereafter be held by the United
States . . . in trust for the [Communities].”28
After enactment of the 1980 Act, Interior stopped
making land assignments to 1886 Mdewakanton.
Simultaneously, the Communities excluded from
28 Pub. L. 9-557, 94 Stat. 3262 (1980) (emphasis added),
App. 157.


16
membership and from the benefits derived from the
1886 lands,29 all 1886 Mdewakanton who were not
already community members. Thus, although the
United States appropriated the 1886 lands for 1886
Mdewakanton for their use and benefit (now numbering
over 10,700 people) the United States holds
the lands in trust for three communities of about 5%
of the intended beneficiaries who now exclusively
receive all benefits from the 1886 lands. Adding insult
to injury, the 1886 land benefits also go to non-1886
Mdewakanton whom Interior permits to be
Community members.
Even Interior has asserted the illegitimacy of
non-1886 Mdewakanton being members of the community
governments and voting.30 Despite Interior’s
stated knowledge of non-1886 Mdewakanton being
impermissibly on 1886 Lands, Interior has done
nothing in the last 12 years to remove the non-1886
Mdewakanton from the 1886 Lands.
The Wolfchild litigation is a result of Interior’s
intentional policies and actions.
29 As reported in 1976, Interior holds moneys derived from
1886 lands in an Interior trust account for eventual distribution
to the 1886 Mdewakanton. The Federal Circuit remanded the
case for further proceedings on that claim. App. 74-75.
30 See Shakopee Mdewakanton Sioux (Dakota) Community
v. Babbitt, 107 F.3d 667, 669-70 (8th Cir. 1997).

17
B. The U.S. Court of Federal Claims Proceedings
In Wolfchild I, the trial court finds
Congressional Appropriation Acts created
a trust and that the United States
breached that trust.
In November 2003, the petitioners, the 1886
Mdewakanton lineal descendants, filed an action
under the Tucker Act and Indian Tucker Act in the
U.S. Court of Federal Claims. The petitioners alleged,
in part, that the Appropriations Acts created a trust
and that the government breached its fiduciary duties
to them. The government moved to dismiss the
complaint for lack of jurisdiction, asserting that the
Appropriations Acts did not create money-mandating
fiduciary duties, and even if they did, the post-1934
IRA non-tribal community governments had sovereign
power to determine membership and benefits
notwithstanding the Appropriation Acts and IRA. The
Petitioners filed a cross-motion for partial summary
judgment.
In 2004, the U.S. Court of Federal Claims denied
the United States’ motion to dismiss and granted the
Petitioners’ motion for partial summary judgment
that the Appropriations Acts created a trust for the
benefit of the 1886 Mdewakanton and that the United
States breached that trust.31 Relying upon White
31 Wolfchild I, 62 Fed. Cl. at 526-35, App. 166-93.

18
Mountain Apache,32 the court concluded that the
“agreement between the loyal Mdewakanton and the
government includes all the features of a trust.”33 The
Court further found an Interior “uniformly consistent
practice”34 over 90 years reinforced the view that
Mdewakanton residents in Minnesota or in the actual
process of moving to Minnesota on May 20, 1886, and
their descendants, are trust beneficiaries to lands
acquired under the Appropriation Acts.35
The lower court also found the passage of a 1980
Act in which the government held lands in trust for
the Communities merely gave greater control over
the use of the lands and eliminated two classes of
members established by the Communities’ constitutions.
The Court concluded the 1980 Act did not
terminate the created trust: “[t]he 1980 Act does not
state as its purpose that the trust for the Mdewakanton
would be terminated.”36
The government subsequently moved for reconsideration
– later denied. The court in Wolfchild II affirmed
its previous decision37 noting “the government
would [rather] introduce an element of confusion and
32 White Mountain Apache, 537 U.S. 465, 476 n. 3 (2003).
33 Wolfchild I, 62 Fed. Cl. at 540-41, App. 206-07.
34 Id. at 542, App. 214.
35 Id.
36 Id. at 543, App. 215-16.
37 Wolfchild II at 794.


19
obfuscation where there was none in the contemporaneous
actions of the Department [of the Interior].”38
Nevertheless, in 2007, the U.S. Court of Federal
Claims granted the United States’ motion for certification
for interlocutory appeal on two issues:
(1) Whether a trust was created in connection
with and as a consequence of the
1888, 1889, and 1890 Appropriations
Acts for the benefit of the loyal Mdewakanton
and their lineal descendants,
which trust included land, improvements
to land, and monies as the corpus;
and
(2) If the Appropriations Acts created such a
trust, whether Congress terminated that
trust with enactment of the 1980 Act.39
C. Proceedings on Appeal
The Federal Circuit reverses the lower
court.
The Federal Circuit, permitting the interlocutory
appeal under 28 U.S.C. § 1292, reversed the lower
court’s decision and remanded for further proceedings.
Without reference to U.S. Supreme Court Indian
trust law doctrine, the Federal Circuit did not find
38 Id. at 787.
39 Wolfchild v. United States, 78 Fed. Cl. 472, 480 (2007),
App. 96.


20
the Appropriation Acts creating a “trust” per se, but
“merely appropriating funds subject to a ‘statutory
use restriction.’ ”40 The Circuit concluded that “even if
we construed the Appropriation Acts as creating a
trust relationship by implication or by operation of
law, we would hold that the 1980 Act terminated that
trust.”41
The Federal Circuit described the 1980 Act as
one that “simply provides for the long term disposition
of the property purchased pursuant to the
Appropriation Acts, an issue left unresolved by
Congress both in those Acts and during the ensuing
90 years.”42 But, the Circuit dismissed the United
States Supreme Court’s limitation of the federal
government’s trust authority under the IRA’s § 465 in
Carcieri “to those members of tribes that were under
federal jurisdiction at the time the IRA was enacted”43
– disregarding the Petitioners’ argument to Carcieri’s
relevancy to the issues then before the Federal
Circuit.44
--------------------------------- ♦ ---------------------------------
40 Wolfchild, 559 F.3d at 1240, App. 27.
41 Id. at 1257, App. 68.
42 Id. at 1258 n. 13, App. 70.
43 Carcieri, 129 S.Ct. at 1065.
44 Wolfchild, 559 F.3d at 1251 n. 8, App. 53.

[mdenney]

21
REASONS FOR GRANTING THE PETITION
I. The Federal Circuit’s “Statutory Use
Restriction” Derived from Appropriation
Acts Creates a Substantive Enforceable
Right, But Without a Legal Forum for
Adjudication, Contrary to Carcieri and
Ninth Circuit Decisions That Provide For
Subject Matter Jurisdiction.
In the Federal Circuit’s analysis of the first
certified question before it – whether the 1888, 1889,
and 1890 Appropriation Acts created a trust – the
court added to the Supreme Court lexicon of trust
law, a new sub-category – “statutory use restriction.”
Simultaneously, the Circuit held that the Appropriation
Acts did not create a trust because the words
“trust”45 or “reservation” were not in the statutory
text46 – thereby avoiding Mitchell I and its progeny:
“[w]hile the legal issue [regarding whether
Congress created a trust] is complex and
untangling the historical materials is difficult,
we conclude that the [1888, 1889, and
1890] Appropriation Acts are best interpreted
as merely appropriating funds subject
to a statutory use restriction. . . .”47
The Circuit’s decision means that Interior has apparent
fiduciary obligations to the 1886 Mdewakanton
45 Id. at 1238, App. 20-21.
46 Id. at 1253, App. 58-59.
47 Id. at 1240, App. 27.


22
as to the statutory use restriction on the 1886 Lands,
and thus any deprivation of benefits related to those
lands vis-à-vis the Communities. But, the court
refused to provide the petitioners with a legal forum
for its legal arguments due to an apparent lack of
subject matter jurisdiction. The Circuit’s decision suggests
that a Congressional 1980 Act48 extinguished all
of Petitioners’ rights because the United States now
holds the 1886 lands in trust exclusively for the post-
1934 IRA non-tribal community governments.
Similarly, an Eighth Circuit decision in Smith v.
Babbitt49 found 1886 Mdewakanton descendants jurisdictionally
barred from pursuing statutory remedies
in federal court against the United States:
Careful examination of the complaints and
the record reveals that this action is an attempt
by the plaintiffs to appeal the Tribe’s
membership determinations. It is true that
appellants allege violations of IGRA, ICRA,
IRA, RICO, and the Tribe’s Constitution.
However, upon closer examination, we find
that these allegations are merely attempts to
move this dispute, over which this court
would not otherwise have jurisdiction, into
federal court.50
48 App. 157.
49 100 F.3d 556 (8th Cir. 1996).
50 Smith, 100 F.3d at 559.


23
Because the Eighth Circuit decision conflated
community political membership issues with claims
of breached federal statutory obligations, the affected
1886 Mdewakanton were jurisdictionally barred from
pursuing claims against Interior in the U.S. District
Court to enforce statutory rights of beneficial interests
derived from 1886 lands held in trust by the
United States.
Meanwhile, the Federal Circuit’s “statutory use
restriction” means Interior has apparent fiduciary
obligations to ensure benefits, which heretofore have
gone to the Communities, now must go exclusively to
1886 Mdewakanton descendants. The Circuit, for
instance, found Interior “recognized, of course, that
Congress intended the 1886 Mdewakanton to be the
specific beneficiaries of the Appropriation Acts . . .
[and] . . . adopted a policy designed to promote Congress’s
intent by assigning lands to individuals from
within the group of 1886 Mdewakantons and subsequently
to individuals from within the class of the
descendants of those Mdewakanton.”51
The Federal Circuit further acknowledged Interior’s
role in fulfilling its obligation to the 1886
Mdewakanton: “[c]ontemporaneous documents make
clear that the Secretary of the Interior considered
himself bound by the terms of the statutes to reserve
the usage of the 1886 lands . . . [and] held
the property for the use and benefit of individuals
51 Wolfchild, 559 F.3d at 1243, App. 33.


24
selected from a defined class.”52 But the Circuit,
without analysis to Supreme Court precedent of trust
principles in Mitchell and its progeny,53 later explained
that: “[c]onsistent with the principle that
there is a ‘general trust relationship between the
United States and the Indian people’ . . . Interior
Department officials often characterized the 1886
lands as being held in trust for the 1886 Mdewakantons
and their descendants, even though they
were not a tribe of Indians, but rather were viewed as
a group of individuals who had severed their tribal
relations and were in need of assistance.”54
The Federal Circuit recognized cognizable and
enforceable fiduciary obligations under the Appropriation
Acts to allow the pursuit of remedies in the
federal courts against the United States for violating
those duties. But, like the Eighth Circuit, the Circuit
found that if Interior’s obligations to a definitive class
of Indians affect present-day post-1934 IRA non-tribal
community governments, the federal courts have no
subject matter jurisdiction to adjudicate the affected
beneficiary class’s claims.
In other words, since the benefits derived from
the 1886 lands presently go to only members of the
post-1934 IRA non-tribal community governments, to
the exclusion of all others who Congress intended, the
52 Id. at 1243, App. 33.
53 Mitchell II, 463 U.S. at 225.
54 Wolfchild, 559 F.3d at 1248, App. 45.


25
excluded Indians have no judicable remedy because of
the lack of federal subject matter jurisdiction.
On the other hand, the Ninth Circuit recognizes
that when federal obligations are to be enforced,
there exists federal subject matter jurisdiction. In
United States v. Yakima Tribal Court55 and United
States v. White Mountain Apache,56 the Ninth Circuit
held that United States sovereignty – including
federal court subject matter jurisdiction – overrides
tribal sovereignty in matters involving federal statutory
obligations. Therefore, if the Appropriation Acts
create a federal obligation, the Petitioners are entitled
to subject matter jurisdiction to adjudicate their
claims against the United States even though the
claims may implicate benefits from lands held in
trust by the government for post-1934 IRA non-tribal
community governments.
55 806 F.2d 853 (9th Cir. 1986)
56 784 F.2d 917 (9th Cir. 1986).


26
II. The United States Initially Enforced Its
Obligations to Individual 1886 Mdewakanton,
But Later Abandoned Those
Obligations in Lieu of Post-1934 IRA
Communities and Excluded 1886 Mdewakanton
From Benefits Derived From the
1886 Lands.
The IRA57 was intended to standardize a process
for historical land-owning tribes to formally organize
federally-recognized governments. But, the 1886
Mdewakanton were not a “historical tribe” because of
the 1863 Act’s renouncement of the Mdewakanton as
a tribe and the Appropriation Acts’ requirement for
severance of tribal relations. Thus, the 1886 Mdewakanton
“were not privileged to organize as a tribe
over various reservations. . . .”58 However, under IRA,
§§ 16 and 19, an additional process existed for a nontribal
group of Indians such as the 1886 Mdewakanton
descendants to organize a government based on
“residence on reservation land.”59
Thus, the only basis of the 1886 Mdewakanton
forming a political organization lay with the 1886
Mdewakanton “residing on reservation land” – which,
in turn, rested on the 1886 Mdewakanton’s legal
rights to the 1886 lands. Hence, the names of the
57 Pub. L. 73-383, 48 Stat. 984 (1934) (“1934 IRA”).
58 JA4656; JA4659-60.
59 25 U.S.C. § 476 (prior to amendments in Pub. L. 100-581,
Stat. 2938-39 (1988) which contained relevant savings clause at
§ 103).


27
organizations are “communities” – reflecting they are
something less than historical land-owning tribes.60
Accordingly, in 1936, Interior recognized the Lower
Sioux Indian Community and the Prairie Island
Indian Community. These communities, however, did
not have traditional tribal powers of assigning reservation
land, condemning member’s land or regulating
the inheritance of land.61 Further, the Lower Sioux
and Prairie Island constitutions incorporated Interior’s
1886 land assignment system to ensure the
1886 lands exclusively benefited the 1886 Mdewakanton:
62
The land within the territory of the Lower
Sioux Community which was purchased by
the United States for the Mdewakanton
Sioux residing in the State of Minnesota on
May 20, 1886, and their descendants, may be
assigned to any Minnesota Mdewakanton
Sioux entitled thereto. . . .63
Interior, not Lower Sioux or Prairie Island, determined
who would benefit from the 1886 lands and
reside in the respective communities.
60 See Felix Cohen, Basic Memorandum on the Drafting of
Tribal Constitutions 5 (David E. Wilkins, ed., Univ. of Okla.
Press 2006).
61 JA4660; JA1952; JA1990.
62 JA1952; JA1990; JA4660.
63 App. 129.


28
In 1969, 35 years after the enactment of the 1934
IRA, Interior again played the major role in the
Shakopee Mdewakanton Sioux Community’s constitution’s
adoption. Interior approved the Shakopee Constitution
despite the absence of 1934 IRA prescriptions
to preserve existing United States’ obligations
and trusts to a recognized band of Indians – the 1886
Mdewakanton. Among 1886 Mdewakanton who
chartered the Shakopee Community and Constitution
and became members were non-1886 Mdewakanton.
The Shakopee Constitution was diametrically
opposite to the Prairie Island and Lower Sioux Communities’
constitutions regarding membership, and,
significantly, regarding the preservation of 1886
lands for the 1886 Mdewakanton. For years afterward,
Interior reviewed land assignments at Shakopee
and insisted on proof of lineal descendency of
1886 Mdewakanton; but, from the start, land assignments
were controversial and difficult for Interior’s
Bureau of Indian Affairs regional office to manage:
Land assignments on 1886 Mdewakanton
lands will be issued only to persons who can
prove descendency from the 1886 Mdewakanton
residents . . . However, no action will
be taken at this time to cancel or disturb any
existing assignments as a result of this
policy statement.64
64 JA04719.


29
By the time of the 1980 Act’s passage, in which
the United States would then hold 1886 lands in trust
for the three communities, Interior was well aware of
the need to verify the 1886 descendancy for land
assignments. Interior instead supported a policy that
left the land assignments to the three post-1934 nontribal
community governments whose membership
had been corrupted by the actions of Interior. Interior
allowed land and the benefits derived from the 1886
Lands to be shared among those without 1886
Mdewakanton descendancy.
The United States knew of and approved the
indiscretion of Shakopee to allow non-1886 Mdewakanton
to enjoy benefits of and derived from the 1886
lands to the exclusion of others. Interior’s complicity
is affirmed in 1983: “[T]he [1983] Enrollment Ordinance
contains the name of 33 individuals . . . These
individuals are to be considered members of the
Shakopee Mdewakanton Sioux Community regardless
of their blood degree.”65
Thus, Interior allowed and affirmed its approval
of the inclusion of non-lineal Mdewakanton among
lineal descendants of 1886 Mdewakanton.66
With Interior’s complicity and approval, Communities’
policies led to the complete exclusion of 1886
Mdewakanton denying them any benefits to or from
65 JA04747.
66 See also, Babbitt, 107 F.3d at 669-70.


30
1886 lands. By 1988, Shakopee closed its membership
to the current members including the non-1886
Mdewakanton. Prairie Island and Lower Sioux
followed Shakopee’s example.
In conjunction with Interior’s complicity, the
Shakopee Community Court, created in about 1988,
while admitting to genealogical controversies, it
refused to assert jurisdiction to exclude the non-1886
Mdewakanton or to include the 1886 Mdewakanton:
Suffice it to say that the files of the federal
courts and federal agencies . . . are littered
with records of disputes which had, at their
base, understandable desires on the part of
some to participate in the Community’s resources,
justifiable fears that such participation
would be denied by others, and
profound doubts that there was any forum
which had jurisdiction to respond.67
Thus, even the Shakopee Community Court is in
accord with the Federal Circuit and Eighth Circuit
decisions denying Petitioners’ jurisdiction to enforce
federal obligations over 1886 lands. But, under Carcieri
and the Ninth Circuit decisions, federal court
subject matter jurisdiction exists over claims of statutory
violations by Interior – presumably even those
involving a post-1934 Act non-tribal community government.
67 Ross v. SMS(D)C, 1 Shak. 86, 87 (July 17, 1992), App.
144.

[mdenney]

31
This Court should consider, after Carcieri, that
federal courts have subject matter jurisdiction to hear
Indian statutory violation claims against the United
States. The Eighth Circuit decision in Smith v. Babbitt
– and now the Federal Circuit decision – have
raised substantial doubts if federal court subject
matter jurisdiction exists.
III. The Federal Circuit’s Statutory Interpretation
of the Appropriation Acts
Contradicts Supreme Court Precedent in
Mitchell I, Mitchell II, White Mountain
Apache, Navajo I, Navajo II and Carcieri.
The Federal Circuit reversed the trial court on
the first certified question regarding the Appropriation
Acts imposing a statutory duty on the Secretary
of Interior regarding Mdewakanton beneficiaries:
[ . . . ] And all of said money which is to be
expended for lands [by the Interior Secretary]
. . . shall be so expended that each of
the Indians in this paragraph shall receive,
as nearly as practicable, an equal amount in
the value of the appropriation.68
Lands were purchased under the Appropriation Acts
that are currently held in trust by the United States.
The Federal Circuit denied the Appropriation Acts
created a “trust” and in its stead adopted a “statutory
use restriction” as a substitute to statutory
68 App. 154-55.

32
interpretative analysis regarding the application of
Indian trust law – all in direct conflict with Supreme
Court precedent regarding statutory interpretation.
The Federal Circuit provided a one-sentence,
forty-two word textual analysis to shift the legal
framework in determining the legal responsibilities
and liabilities between the federal government and
Native Americans:
That clause, which the record materials suggest
was added because of complaints that
the funds from an earlier appropriation were
disproportionately distributed, provides such
minimal direction that it is plainly insufficient
to convert what would otherwise be an
appropriation into a trust.69
The Federal Circuit’s one-sentence analysis violated
Supreme Court statutory interpretative principles
governing Native American trust cases:
• The “Substantive Source of Law” doctrine
(“Navajo I”)70 and (“Navajo II”);
• the “Plain Meaning Rule” (Carcieri);
• “The Word ‘Trust’ In the Law Is Not
Necessary to Create an Indian Trust”
doctrine (“Mitchell I”) and (“Mitchell
II”); and
69 Wolfchild, 559 F.3d at 1239, App. 24.
70 United States v. Navajo Nation, 537 U.S. 488 (2003).


33
• The Fair Inference Rule of Mitchell II
(also applied in United States v. White
Mountain Apache.)71
First, the Federal Circuit’s decision contradicts
with the principles of statutory construction expressed
in Navajo II:
In Navajo I, we reiterated that the analysis
must begin with “specific rights-creating or
duty-imposing statutory or regulatory prescriptions.”
537 U.S., at 506, 123 S.Ct. 1079.
If a plaintiff identifies such a prescription,
and if that prescription bears the hallmarks
of a “conventional fiduciary relationship,”
White Mountain, 537 U.S., at 473, 123 S.Ct.
1126, then trust principles (including any
such principles premised on “control”) could
play a role in “inferring that the trust
obligation [is] enforceable by damages,” id.,
at 477, 123 S.Ct. 1126. But that must be the
second step of the analysis, not the starting
point.72
The Federal Circuit found a “statutory use restriction”
suggesting either a substantive right or dutyimposing
prescription, but stopped its analysis there.
The court avoided further trust analysis as it relates
to a conventional fiduciary relationship although the
71 United States v. White Mountain Apache Tribe, 537 U.S.
465 (2003); See also, Duncan v. United States, 667 F.2d 36 (Ct.
Cl. 1981).
72 Navajo Nation II, 129 S.Ct. at 1558.

34
Appropriation Acts contain specific Congressional
directives: “each of the Indians in this paragraph
shall receive, as nearly as practicable, an equal
amount in the value of the appropriation.”73 The
Federal Circuit violated the statutory interpretative
approach dictated by Navajo II.
Second, put another way, the Federal Circuit’s
one-sentence analysis ignored the Plain Meaning
Rule most recently applied in Carcieri:
This case requires us to apply settled principles
of statutory construction under which
we must first determine whether the statutory
text is plain and unambiguous. United
States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct.
1032, 137 L.Ed.2d 132 (1997). If it is, we
must apply the statute according to its
terms.74
The Circuit avoided interpreting the Appropriation
Acts’ plain language that the Secretary of the
Interior was to ensure each Indian beneficiary “shall
receive, as nearly as practicable, an equal amount in
value of this appropriation.” Without analyzing the
text, the Federal Circuit concluded the statute provided
“minimal direction” and there was no trust duty
on the Secretary of the Interior to the Petitioners
regarding the “lands” purchased.
73 App. 154-55.
74 Navajo Nation II, 129 S.Ct. at 1558 (citations omitted).


35
Third, the Federal Circuit’s decision contradicts
Mitchell II and White Mountain Apache. The Supreme
Court in Mitchell II held that the word “trust”
is not necessary in a law to create statutory trust
obligations on the United States. 75
The Federal Circuit, to the contrary, required
more than what Mitchell II demands. The Court
required the word “reservation” or “trust” expressed
within the Acts.
As the Mitchell II Court stated, “ll of the necessary
elements of a common-law trust are present: a
trustee (the government), a beneficiary (the Indian
allottees), and a trust corpus (Indian timber, lands,
and funds).” Id. at 225. But, the Federal Circuit failed
to recognize that all the necessary elements of a
common law trust are present in the Wolfchild case: a
trustee (Secretary of the Interior), beneficiaries (petitioners)
and a trust corpus (1886 lands).
The Federal Circuit’s decision also contradicts
White Mountain Apache. In White Mountain Apache,
the Court held under the fair inference rule that a
1960 Congressional Act at issue created fiduciary
duties on Interior:
The 1960 Act goes beyond a bare trust and
permits a fair inference that the Government
is subject to duties as a trustee and liable in
75 Mitchell II, 463 U.S. at 225-26; see also, Carcieri, at 129
S.Ct. at 1063-64.


36
damages for breach. . . . [T]he fact that the
property occupied by the United States is
expressly subject to a trust supports a fair
inference that an obligation to preserve the
property improvements was incumbent on
the United States as trustee. . . . “One of the
fundamental common-law duties of a trustee
is to preserve and maintain trust assets.”76
The Federal Circuit did not apply the fair inference
rule.
In summary, because the Appropriation Acts
place an express statutory duty on the Secretary of
the Interior to ensure that 1886 Mdewakanton beneficiaries
“shall receive, as nearly as practicable, an
equal amount in value of this appropriation” – there
is more evidence of statutory intent of a trust obligation
than the minimal requirements of Mitchell II
and White Mountain Apache require and something
more than a “statutory use restriction.” Therefore,
the Federal Circuit’s analysis not only contradicts
Mitchell II and White Mountain Apache, but represents
a major shift in interpretation of statutes and
in application of trust principles to Native American
statutes.
The doctrinal shift is further evidenced by the
Federal Circuit’s decision not to apply its own presumption
that “Congress is knowledgeable about
76 White Mountain Apache Tribe, 537 U.S. at 474-77
(footnotes and citations omitted).


37
existing law pertinent to legislation it enacts.”77 This
presumption and deference to the common law governing
the statutory enactments at the time of passage,
requires the application of the then known trust
law to ascertain whether Congress intended to create
a trust. This presumption is consistent with trust
law:
In construing an inter vivos trust, the provisions
of the trust are to be governed by the
law existing at the time of its creation, not
the law and public policy in effect at the time
the construed words will take effect, absent a
contrary intention within the instrument
itself.78
This requires an analysis of Congress’ presumption
of knowledge. In this case, the Federal Circuit
did not do the required analysis. The applicable trust
law at the time of enactment is essential to statutory
interpretative analysis in Indian trust law cases. For
example, A Practical Treatise on the Law of Trust, vol.
1, 24 (Thomas Lewin, Frederick Lewin and James H.
Flint, 1st Am. ed., Charles H. Edson 1888) finds in
the creation of a trust that a person,
77 See, e.g., Canadian Lumber Trade Alliance v. United
States, 517 F.3d 1319, 1343 (Fed. Cir. 2008), quoting Bristol-
Myers Squibb Co. v. Royce Lab., 69 F.3d 1130, 1136 (Fed. Cir.
1995) (internal quotation omitted).
78 76 Am. Jur. 2d Trusts § 36 (2008) (citations omitted)
(emphasis added).


38
[N]eed only make his meaning clear as to the
interest he intends to give, without regarding
the technical terms of the common law in
limitation of legal estates . . . provided words
be used which thought not technical are yet
popularly equivalent, or the intention otherwise
sufficiently appears upon the face of the
instrument.79
Congress used the popular equivalent of “trust”
language when it created an express statutory duty
on the Secretary of the Interior that the Indian beneficiaries
“shall receive, as nearly as practicable, an
equal amount in value of this appropriation.” The
Federal Circuit’s absence of analysis regarding Congressional
presumptive knowledge of trust law at the
time of enactment reflects a lapse in statutory trust
analysis.
The Federal Circuit decision further conflicts
with the principles espoused in its predecessor United
States Court of Claims in Duncan v. United States.80
The Duncan court explained that: “it is difficult to see
why Congress should have to do more to create an
Indian trust than a private settlor would have to do
to establish a private trust.”81 Under Duncan, if an
79 Id. at 147-48 (emphasis added). See also, id. at 70, 71
n. 1; A Treatise on the Law of Trusts and Estates, vol. 1, 68
(Jarias Ware Perry, 4th ed., Little Brown, 1889).
80 Duncan v. United States, 229 Ct. Cl. 120, 667 F.2d 36
(1981).
81 667 F.2d at 42 n. 10.


39
appropriation act text would create a private trust,
then the same text in public law creates a trust, too.
Thus, if a private person who accepted an express
duty to ensure that certain beneficiaries “shall receive,
as nearly as practicable, an equal amount in
value of this appropriation” is a trustee, then the
Secretary of the Interior is also a trustee by the same
language found in the Appropriation Acts. The Federal
Circuit’s one-sentence analysis contradicts Duncan’s
principle that “Congress should not have to do
more than a private settlor to create a trust.”
Ultimately, the Federal Circuit’s statutory interpretative
approach towards Congressional Acts shifts
away from 30 years of Supreme Court precedent in
Native American trust cases: Mitchell I, Mitchell II,
Navajo Nation I, White Mountain Apache, Navajo
Nation II and Carcieri. The Supreme Court should
grant review to ultimately determine whether the
Federal Circuit’s doctrinal shift espoused in Wolfchild
has eviscerated, modified, or undermined this Court’s
interpretative analysis of Indian trust law.


40
IV. The Federal Circuit’s Statutory Interpretative
Approach on the Second Certified
Question Contradicts the Plain Meaning
Rule, Carcieri, 25 U.S.C. § 462, Passamaquoddy’s
“Plain and Unambiguous”
Requirement and Established Congressional
Practice Regarding Indian Trust
Termination.
The Wolfchild Federal Circuit decision is contrary
to Carcieri, 25 U.S.C. § 462, and ultimately as
the decision pertains to trust terminations as found
in Passamaquoddy Tribe.82 In the first instance, the
Circuit found Carcieri not relevant to the questions
before it.83 Simply, the Federal Circuit held that the
post-1934 IRA non-tribal community governments are
the exclusive beneficiaries of the lands purchased
under the 1888, 1889 and 1890 Appropriation Acts.
But, the Circuit’s holding is contrary to Carcieri and
therefore Carcieri is relevant.
Carcieri relates to the legal identity of the Prairie
Island, Lower Sioux, and Shakopee Communities under
the 1934 IRA. The legal basis under the 1934
IRA for the federally-recognized community governments
was the 1886 Loyal Mdewakanton residing on
82 Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 528 F.2d 370, 380 (C.A. Me. 1975).
83 The court did acknowledge Petitioners’ notification of
Carcieri, but dismissed its relevancy in a footnote. Id. at 1251,
n. 8, App. 53. Carcieri was issued two weeks before the Circuit’s
issued decision.


41
reservation lands – the 1886 lands. Furthermore, this
statutorily-defined class of beneficiaries is a “band” –
not a “tribe” – of Loyal Mdewakanton. This “band”
was found by Interior to be under federal jurisdiction
in 1934.
Thus, if there were any “ownership interests” in
the 1886 lands, it was those of the 1886 Mdewakanton
and their descendants in 1934, not the political
governments created 2 or 35 years later. The Federal
Circuit concluded that:
s of the time of the 1980 Act, those lands
were being held by the Department of the
Interior for use by the 1886 Mdewakantons
and their descendants pending an ultimate
legislative determination as to how the
ownership interests in the lands should be
allocated. That determination came in 1980,
when Congress provided that legal title in
the lands would be held by the United
States, which would hold the lands in trust
for the three communities.84
The Federal Circuit’s conclusion is antithetical to
this Court’s holding in Carcieri. The Circuit’s decision,
not to apply the Carcieri reasoning as it applies
to the 1934 IRA, goes directly to whether the instant
Petitioners or other Native Americans and Native
American tribes will have federal courts to adjudicate
their claims. As Carcieri explained:
84 Wolfchild, 559 F.3d at 1255, App. 62.


42
[F]or purposes of [IRA] § 479, the phrase
“now under Federal jurisdiction” refers to a
tribe that was under federal jurisdiction at
the time of the statute’s enactment. As a
result, § 479 limits the Secretary’s authority
to taking land into trust for the purpose of
providing land to members of a tribe that
was under federal jurisdiction when the IRA
was enacted in June 1934. Because the
record in this case establishes that the
Narragansett Tribe was not under federal
jurisdiction when the IRA was enacted, the
Secretary does not have the authority to take
the parcel at issue into trust.85
Thus, Carcieri suggests that the Minnesota
Mdewakanton post-1934 IRA non-tribal community
governments established in 1936 (two) and in 1969
(one) are not “Indian tribes” under § 476. Here, the
Mdewakanton Communities do not have a legal identity
independent, separate and apart from the 1886
Mdewakanton under the IRA. Consequently, there is
nothing in the 1980 Act’s references to each of the
Mdewakanton Communities to suggest Congressional
intent to exclude 95% of the 1886 Mdewakanton from
the subject matter of the Appropriation Acts – the
1886 lands and benefits derived therefrom – to allow
5% of the 1886 Mdewakanton and non-1886 Mdewakanton
to receive 100% of the 1886 lands and its
benefits.
85 Carcieri, 129 S.Ct. at 1061.

[mdenney]

43
Carcieri reinforces this point. The Federal Circuit
was required, in light of Carcieri, to determine
whether the Communities have a legal identity
independent, separate and apart from the petitioners,
who as original beneficiaries under the Appropriation
Acts did in fact have a legal identity under the 1934
IRA. Instead, the Circuit found the 1980 Congressional
Act as an alteration of the ownership status of
1886 lands:
whereby the United States would hold legal
title to the lands and each of the communities
would hold equitable title to the
portions of the 1886 lands allocated to it.86
But, Carcieri required the Federal Circuit to answer
who is the ultimate beneficiary of the “lands” after
the 1980 Act. The Federal Circuit refused to do so –
finding Carcieri not relevant. The Federal Circuit’s
decision not to apply Carcieri and failure to answer
this question – leaves a legal quagmire for the trial
court to resolve.
Importantly, 25 U.S.C. § 462, part of the 1934
IRA, continued all Indian land beneficiary rights
unless terminated by Congressional enactment:
The existing periods of trust placed upon any
Indian lands and any restriction on alienation
thereof are extended and continued until
otherwise directed by Congress.
86 Wolfchild, 559 F.3d at 1255, App. 62-63.

44
Another important question under 25 U.S.C.
§ 462 in this case is whether Congress is required to
“plainly and unambiguously” terminate Indian beneficiary
rights. The Federal Circuit did not apply a
“plain and unambiguous” legal standard in determining
whether the 1980 Act was a trust termination
act.
The Federal Circuit’s failure to apply the “plain
and unambiguous” legal standard contradicts longstanding
precedent of the U.S. Court of Appeals
regarding statutory trust termination: “ny withdrawal
of trust obligations by Congress [with Indians]
would have to have been ‘plain and unambiguous’ to
be effective.”87 Passamaquoddy’s legal standard is
consistent with 25 U.S.C. § 462 which extends all
Native American trust beneficiary rights in perpetuity
and requires Congress to provide “directions” to
terminate Indian trust beneficiary rights.
Moreover, Passamaquoddy’s legal standard is
consistent with the law of trusts which provides that
any termination or modification of a trust must be
done by “clear and convincing evidence.”88 The primary
concern is that beneficiaries receive adequate
notice of enactment of the trust termination act before
enactment of the trust termination act – presumably
so they can lobby against it.
87 Joint Tribal Council of the Passamaquoddy Tribe, 528
F.2d at 380 (emphasis added).
88 Restatement (Third) of Trusts § 63(3) (2003).


45
As the U.S. Court of Federal Claims recognized,
absent in the 1980 Act is Congressional use of the
“plain and unambiguous” language to terminate the
government’s trust obligations to the Indian beneficiaries
as found in earlier trust termination acts.89
--------------------------------- ♦ ---------------------------------
CONCLUSION
The petition for writ of certiorari should be
granted.
Respectfully submitted,
ERICK G. KAARDAL
Counsel of Record
WILLIAM F. MOHRMAN
MOHRMAN & KAARDAL, P.A.
33 South Sixth Street
Suite 4100
Minneapolis, Minnesota 55402
[phone]
Attorneys for Petitioners
89 See 25 U.S.C. § 677 (Ute Tribe); 25 U.S.C. § 564 (Klamath
Tribe); 25 U.S.C. § 741 (Paiute Tribe); 25 U.S.C. § 691 (certain
tribes and bands of Indians located in western Oregon); 70 Stat.
893 (Wyandotte Tribe); 70 Stat. 937 (Peoria Tribe); 70 Stat. 963
(Ottawa Tribe); 65 Stat. 250 (Menominee Tribe); and 25 U.S.C.
§ 980 (Ponca Tribe).

[mazadidi]

Thanks, cousin!!!

[mdenney]

Definition: Certiorari, Petition for Writ of Certiorari.
This request is named a Petition for Writ of Certiorari. ... A petition for writ of certiorari will be granted only for compelling reasons. ...
www.techlawjournal.com/glossary/legal/certiorari.htm - Cached

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Certiorari

Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The U.S. Supreme Court still uses the term certiorari in the context of appeals.

Petition for Writ of Certiorari. (informally called "Cert Petition.") A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.

Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower court.

Cert. Denied. The abbreviation used in legal citations to indicate that the Supreme Court denied a Petition for Writ of Certiorari in the case being cited.

Someone with a legal claim files a lawsuit in a trial court, such as a U.S. District Court, which receives evidence, and decides the facts and law. Someone who is dissatisfied with a legal decision of the trial court can appeal. In the federal system, this appeal usually would be to the U.S. Court of Appeals, which is required to consider and rule on all properly presented appeals. The highest federal court in the U.S. is the Supreme Court. Someone who is dissatisfied with the ruling of the Court of Appeals can request the U.S. Supreme Court to review the decision of the Court of Appeals. This request is named a Petition for Writ of Certiorari. The Supreme Court can refuse to take the case. In fact, the Court receives thousands of "Cert Petitions" per year, and denies all but about one hundred. If the Court accepts the case, it grants a Writ of Certiorari.

"Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons." Rule 10, Rules of the U.S. Supreme Court.

The U.S. Supreme Court's certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme Court.

The effect of denial of certiorari by the U.S. Supreme Court is often debated. The decision of the Court of Appeals is unaffected. However, the decision does not necessarily reflect agreement with the decision of the lower court.