RESPONSE IN SUPPORT OF PETITIONS

[mdenney]

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RESPONSE IN SUPPORT OF PETITIONS
FOR WRITS OF CERTIORARI



-------------------Nos. 09-579, 09-580---------------------
================================================================
In The
Supreme Court of the United States
--------------------------------- ♦ ---------------------------------
SHELDON PETERS WOLFCHILD, et al.,
Petitioners,
vs.
UNITED STATES,
Respondent.
--------------------------------- ♦ ---------------------------------
HARLEY D. ZEPHIER, SENIOR, et al.,
Petitioners,
vs.
UNITED STATES,
Respondent.
--------------------------------- ♦ ---------------------------------
On Petitions For Writs Of Certiorari
To The United States Court Of Appeals
For The Federal Circuit
--------------------------------- ♦ ---------------------------------
RESPONSE IN SUPPORT OF PETITIONS
FOR WRITS OF CERTIORARI
--------------------------------- ♦ ---------------------------------
SCOTT A. JOHNSON
Counsel of Record
TODD M. JOHNSON
J. MICHAEL SCHWARTZ
JOHNSON LAW GROUP LLP
10580 Wayzata Boulevard, Suite 250
Minnetonka, Minnesota 55305
[phone]
Attorneys for Respondents
================================================================
thingyLE LAW BRIEF PRINTING CO. [phone]
OR CALL COLLECT [phone]



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i

--------------------------ISSUES PRESENTED----------------------

These Respondents support the Petitions of
Sheldon Peters Wolfchild, et al. v. United States,
Docket No. 09-579 (the “Wolfchild Petition”), and
Harley D. Zephier, Senior, et al. v. United States,
Docket No. 09-580 (the “Zephier Petition”) for Writs of
Certiorari. Accordingly, the following statement of
“Issues Presented” derives from the “Questions
Presented” raised in the Wolfchild and Zephier
Petitions.

1. Whether the Federal Circuit’s declaration of
a “statutory use restriction,” rather than a trust having
been created “in connection with and as a consequence
of ” the 1888, 1889 and 1890 Appropriation
Acts, establishes dangerous precedent with far
reaching inter-circuit implications by: (a) rejecting as
irrelevant the analytical guidelines and substantive
Indian trust law set forth in Carcieri v. Salazar, 129
S.Ct. 1058 (2009); (b) ignoring the historical record of
the United States’ official statements acknowledging
a trust; (c) ignoring Agency fiduciary treatment of the
1886 lands as the trust corpus; (d) allowing the
United States to assert the opposite of its prior
position in court that the trust at issue exists – which
advocacy produced binding federal court holdings;
and (e) departing from established principles of
statutory interpretation and Indian trust law as
established by United States v. Mitchell, 445 U.S. 535
(1980) (“Mitchell I”) and its progeny.



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ii

-------------------------ISSUES PRESENTED – Continued----------------

2. Whether the Federal Circuit’s conclusion that
the 1980 Act terminated any existing trust creates
erroneous precedent for Indian trust law, by dropping
the requirement that a trust terminating statute be
“clear and unambiguous” and encouraging the United
States to take litigation positions which contradict its
own prior statutory interpretations and administrative
practices, particularly where: (a) the 1980 Act
recites that the subject lands were being “held for the
use and benefit of the heirs of Loyal Mdewakantons”;
(b) never states that those benefits are intended to be
nullified; (c) provides no notice of termination; and (d)
Congress’ own statements in the 1980 Act and related
House and Senate Reports pronouncing that the 1980
Act was intended to “enhance” the beneficiaries’
rights, effect “no change in existing law,” and only
produce “a technical change in the status” of the 1886
trust corpus lands.

3. Whether the principle of law established in
United States v. Mitchell, 463 U.S. 206 (1983)
(“Mitchell II”) that “a general trust relationship
between the United States and the Indian people
exists” has been now overruled by the Federal Circuit
opinion and replaced by a new standard strictly
construing Native American statutes in favor of the
government and against Indian beneficiaries.


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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 Plaintiff-Respondents
represented (in excess of 400 individuals).

------------------CORPORATE DISCLOSURE STATEMENT------------------

These Plaintiff-Respondents are not and do not
represent a nongovernmental corporation.



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iv

TABLE OF CONTENTS

-----------------------------------------------------------------Page

ISSUES PRESENTED ........................................... i

LIST OF PARTIES ................................................. iii

CORPORATE DISCLOSURE STATEMENT ........ iii

OPINION BELOW ................................................. 1

STATEMENT OF JURISDICTION ....................... 1

STATUTORY PROVISIONS INVOLVED ............. 1

STATEMENT OF THE CASE ................................ 2

INTRODUCTION ................................................... 2

FACTUAL BACKGROUND ................................... 4

REASONS FOR GRANTING PETITIONS ........... 16

I. The Federal Court of Appeals Opinion Shattered
the Loyal Mdewakantons’ “Trust” By
Adopting a Conclusion Contrary to Government
Practice and Pronouncements for
Over a Hundred Years, and Never Taken
By Any Party or Court Before This Litigation
– That No Legal or Equitable Trust
Ever Existed ................................................. 17

II. The Federal Circuit Focused on Only the
Last Step in the Trust Creation Process –
the Appropriation Acts Funding the Trust
– and Ignored the Role of the 1863 Act in
Authorizing the Creation of the Trust ........ 19


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v

TABLE OF CONTENTS – Continued

----------------------------------------------------------------Page

III. The Federal Circuit Opinion Ignored Long-
Standing Indian Treaty and Trust Law By
Declaring the Necessity of an Explicit
Declaration of a Trust in the Appropriation
Acts Funding the Trust Corpus ................... 23

IV. The Federal Circuit Ignored the Clearly Expressed
Intent of Congress to Establish Perpetual
Rights in the Loyal Mdewakanton
and Their Heirs ............................................ 25

V. The Federal Circuit’s Opinion Rewrites the
1980 Act Contrary to its Language and
History .......................................................... 29

VI. The Federal Circuit Disregarded Carcieri .... 30

VII. The Federal Circuit Opinion Appears to
Create a New Strict Construction Standard
and Rejects the Principle of a “General
Trust Relationship Between the
United States and the Indian People” ........ 33

CONCLUSION ....................................................... 34

APPENDIX INDEX
Act of February 16, 1863, ch. 86, 12 Stat. 652 ... App. 1

Act of March 3, 1863, ch. 119, 12 Stat. 819 ........ App. 7

House of Representatives Report No. 96-1409,
September 26, 1980 ........................................ App. 11

Senate Report No. 96-1047, November 20, 1980 ... App. 26
Act of December 19, 1980, 96-557, 94 Stat.
3262 ................................................................ App. 40


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vi

TABLE OF AUTHORITIES

--------------------------------------------------------------------------Page

CASES

Brewer v. Acting Deputy Assistant Secretary, 10
IBIA 110 (1982) ....................................................... 24

Carcieri v. Salazar, 129 S.Ct. 1058, 172
L.Ed.2d 791 (2009) .......................................... passim

Cermak v. Babbitt, 234 F.3d 1356 (Fed. Cir.
2000) ........................................................................ 24

Cermak v. Norton, 322 F.Supp.2d 1009 (D.
Minn. 2004), aff ’d, Cermak v. United States,
478 F.3d 953 (8th Cir. 2007) ................................... 24

J.E.M. Ag Supply Inc. v. Pioneer Hi-Bred
Intern., Inc., 534 U.S. 124, 122 S.Ct. 593, 151
L.Ed. 508 (2001) ...................................................... 22

State of Georgia v. Pennsylvania R. Co., 324
U.S. 439, 5 S.Ct. 716, 89 L.Ed. 1051 (1945) ........... 22

State of South Carolina v. Stoll, 84 U.S. 425
(1873) ....................................................................... 22

U.S. v. Borden Co., 308 U.S. 188, 60 S.Ct. 182,
84 L.Ed. 181 (1939) ................................................. 22

United States v. Mitchell, 445 U.S. 535 (1980) ............ i

United States v. Mitchell, 463 U.S. 206, 103
S.Ct. 2961, 77 L.Ed.2d 580 (1983) ..................... ii, 34

Wolfchild, et al. v. United States, 559 F.3d 1278
(Fed. Cir. 2009) .......................................................... 9


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vii

TABLE OF AUTHORITIES – Continued

--------------------------------------------------------------------Page

OTHER AUTHORITIES
34 Cong. Rec. 2523 (1901) .......................................... 13

126 Cong. Rec. 32,898 (1980) ..................................... 14

H.R. Rep. No. 96-1409 (1980) ..................................... 14

FEDERAL STATUTES

7 Stat. 538 ..................................................................... 7

10 Stat. 954 ................................................................... 7

Act of February 16, 1863, 12 Stat. 652 .............. passim

Act of February 16, 1863, 12 Stat. 654 .............. passim

Act of March 3, 1863, 12 Stat. 819 ..................... passim

Act of June 29, 1888, 25 Stat. 217, 228 ............... 1, 12, 20

Act of March 2, 1889, 25 Stat. 980, 992 .............. 1, 12, 20

Act of August 19, 1890, 26 Stat. 336 ................ 1, 12, 20

Act of 1934, 25 U.S.C. §§ 462, 463, 465 and 479,

Indian Reorganization Act, et seq. .... 1, 13, 14, 31, 32

Act of 1944, 58 Stat. 274 ............................................ 13

Act of December 1980, Pub. L. 9-557, 94 Stat.

3262 ................................................................. passim


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1

OPINION BELOW

This Responsive Brief is submitted by 424
plaintiff heirs of the Loyal Mdewakantons (“Plaintiff-
Respondents” or “these Respondents”) in support of
the Petition for Writ of Certiorari of Sheldon Peters
Wolfchild, et al. v. United States, Docket No. 09-579,
and the Petition for Writ of Certiorari of Harley
D. Zephier, Sr., et al. v. United States, Docket No. 09-
580.

These Plaintiff-Respondents accept and support
the statements of the “Opinion Below” as referenced
in those Petitions.
--------------------------------- ♦ ---------------------------------
STATEMENT OF JURISDICTION

These Respondents accept and support the
“Statements of Jurisdiction” as set forth in the aboveidentified
Petitions.
--------------------------------- ♦ ---------------------------------
STATUTORY PROVISIONS INVOLVED

Pertinent provisions of the February 16, 1863
Act, 12 Stat. 654, Preamble in §§ 1 through 9; March
3, 1863 Act, 12 Stat. 819, Preamble in §§ 1 through 6;
1888, 1889 and 1890 Appropriation Acts: Act of June
29, 1888, 25 Stat. 217 at 228; Act of March 2, 1889, 25
Stat. 980 at 992; Act of August 19, 1890, 26 Stat. 336
at 349; relevant provisions of the original Indian
Reorganization Act of 1934, as amended, 25 U.S.C.


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2

§§ 462, 463, 465 and 479, Indian Reorganization Act
of 1934 (as reprinted in Wolfchild Petition Appendix
at 159-160); and the Act of December 1980, Pub. L. 9-
557, 94 Stat. 3262.
--------------------------------- ♦ ---------------------------------

STATEMENT OF THE CASE
INTRODUCTION

This case involves judicial revocation of a trust
created by Congress a century and a half ago to
protect and reward certain Native Americans for
extraordinary acts of loyalty, compassion and courage
in the Dakota Uprising of 1862. During that conflict,
a group of Mdewakanton Sioux sacrificed their filial
and tribal connections, relinquished their property,
and risked their lives and families, to save the lives
and property of neighboring settlers and their
families. It was an honorable act of great sacrifice
which severed these Native Americans from their
prior tribal relations forever.

After the 1862 Dakota Uprising was defeated,
Congress meted out punishment to the Dakota tribal
members: taking away their reservation lands, their
annuities, and banishing and executing many of their
numbers – using language of outrage and retaliation.
See Act of February 16, 1863.1 Yet even in the passion
of that legislative excoriation, Congress was moved to

____________

1 12 Stat. 652, App. 1-6.


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3

recognize and reward the extraordinary sacrifice of
those Indians – the “Loyal Mdewakanton” – who
risked so much in their refusal to participate in the
“massacre.” Acknowledging that sacrifice, Congress
reserved to those Loyal Mdewakanton the benefits
which they had previously enjoyed by treaty but
which were now terminated in response to the
Dakota Conflict. Those former treaty rights now
reserved to the Loyal Mdewakanton consisted of land
and support granted, in Congress’ words, as an
“inheritance to said Indians and their heirs forever.”2

This was a good and proper thing to do. Thereafter,
for 150 years, consistent with Congressional
intent, the Department of the Interior held, referenced
and administered these lands and support “in
trust” for the benefit of the Loyal Mdewakanton – a
trust which the Loyal Mdewakanton and their heirs
understood and relied upon.

Now, with a decision which altered fundamental
trust principles, ignored a century of Interior Department
treatment of the trust corpus, misconstrued
clear statutory language, and declared “irrelevant”
precepts of this Court to guide analysis of such claims,
the U.S. Court of Appeals for the Federal Circuit has
declared that the Loyal Mdewakanton reliance upon
this trust benefit was illusory. The result is that
over twenty thousand surviving heirs of the Loyal
____________

2 Id. at § 9, App. 6.


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4

Mdewakanton suddenly and forever lost the legacy of
their ancestors’ great sacrifice.

This Court should accept the Petitioners’ Writs of
Certiorari and correct this far reaching injustice. This
is an injustice which not only divests tens of thousands
of Native Americans of their trust inheritance,
but also calls into question the trust worthiness of the
United States.

FACTUAL BACKGROUND

This case is rooted in undisputed history3 – that a
group of Minnesota Native Americans elected to save
white settlers from attack and death at the hands of
their own tribal relations. As a result of that extraordinary
event, Congress chose to create a trust of
land and other assets for these “Loyal Mdewakanton”
and their “heirs forever.”

This historic underpinning cannot be set aside,
leaving the emergent statutes to be parsed and
dissected in legalistic isolation. Rather, the intent and
meaning of the subject statutes can only be accurately
gleaned with a full appreciation for their historical
context. Once analyzed from a correct historical
understanding, the conclusion is inescapable
that grave errors of law were committed by the U.S.

______________________

3 The Wolfchild and Zephier Petitions, and several District
Court opinions below, cover the facts in detail. This response
simply highlights critical points.


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5

Court of Appeals for the Federal Circuit in this case,
with serious negative implications for tens of thousands
of surviving heirs of the Loyal Mdewakanton
and other Indian trust beneficiaries.

During the Dakota Conflict of 1862 (the “Conflict”
or “Dakota Conflict”), the Loyal Mdewakanton
were not motivated by money, but compassion, when
they risked their property, their lives and their tribal
relationships to save white Minnesota settlers. Yet
only when the Conflict ended did the full import of
their sacrifice become clear. Many among the white
population of Minnesota reviled the Loyals for their
racial and tribal connection to the perpetrators of the
violent uprising. At the same time, the tribes as a
whole severed relations with the Loyals for their
refusal to join the insurgency – and for their
protection of the white settlers.
In an atmosphere of outrage and retribution
following the Conflict, the United States Congress
passed legislation on February 16, 1863 (the “February
1863 Act”).4 That Act’s very title expressed the
anger of the legislators at the mass killing of white
settlers:

“An Act for the Relief of Persons for Damages
sustained by Reason of the Depredations and
Injuries by certain Bands of Sioux Indians.”5

__________________

4 12 Stat. at 652, App. 1-6.
5 Id., App. 1.


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6

The preamble of the Act expanded on this theme:

“[D]uring the past year the aforesaid bands
of Indians made an unprovoked, aggressive
and most savage war upon the United States
and massacred a large number of men,
women and children within the State of
Minnesota, and destroyed and damaged a
large amount of property. . . .”6

The February 1863 Act gave full voice to Congress’
indignation by annulling any and all treaty
rights inuring to the benefit of the rebel Dakota
bands. As a result, these bands lost their perpetual
and term annuities; all property rights in reserved
lands; and all claims against the United States
derived from their treaties:

“Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That all
treaties heretofore made and entered into by
the . . . bands of Sioux or Dakota Indians . . .
with the United States are hereby declared
to be abrogated and annulled, so far as said
treaties or any of them purport to impose
any future obligation on the United States,
and all lands and rights of occupancy within
the State of Minnesota, and all annuities and
claims heretofore accorded to said Indians, or

_________________

6 Id., App. 1.


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[mdenney]

7

any of them, to be forfeited to the United
States.”

(Emphasis added).7

Following this language of annulment and
abrogation, the February 1863 Act went on, through
eight sections, to establish a process for injured
Minnesota settlers to obtain compensation for their
losses from the terminated treaty annuities. The final
Section 9 of the Act, while continuing the theme of
compensation and restoration, took a decidedly different
turn. Section 9 focused entirely upon honoring
and providing for those loyal Indians who had
“exerted [themselves] in rescuing the whites from the
late massacre. . . .”8

The significance of this final section can only be
understood in the dramatic context of the fury which
led Congress to annul the Dakota treaties. Section 9
of the Act recognized the sacrifice of the Loyal
Mdewakanton and effectively granted back to them
________________

7 Id., App. 1-2. The volume of treaty rights annulled by this
Act reflects the magnitude of Congressional anger. These included
an 1837 treaty with the Mdewakanton and other Minnesota
bands which created reservation lands and a perpetual
annuity (7 Stat. 538); and an 1851 treaty with the Mdewakanton
and Wahpekute Bands of Minnesota which created a supplemental
fifty-year annuity (10 Stat. 954).
8 Id., App. 6.


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8

the treaty rights now otherwise abrogated for the
warring bands:

“Sec. 9. And it be further enacted That the
Secretary of the Interior is hereby authorized
to set apart of the public lands . . . eighty
acres in severalty to each individual of the
before-named bands who exerted himself in
rescuing the whites from the late massacre
of said Indians. The land so set apart shall
not be subject to any tax, forfeiture, or sale,
by process of law, and shall not be aliened or
devised, except by the consent of the
President of the United States, but shall be
an inheritance to said Indians and their heirs
forever.”9

(Emphasis added).

The trust created by this Act was not only
intended to reward the Loyals for their courage, but
also to protect those few Loyals who remained in
Minnesota. The expulsion of rebel Dakota Indians
from Minnesota following the Conflict ultimately
caused the Minnesota Mdewakanton population to
fall from between 6,000 and 10,000 people in 1862 to
approximately 200 Loyal Mdewakanton in 1886. The
remaining Loyals thus became subject to the desire
for vengeance and the fears of many Minnesota
surviving settlers.
_____________

9 12 Stat. at 654, App. 1-6.


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9

In its 2009 opinion, the Federal Circuit recognized
the significance of the February 1863 Act as
creating a trust for the Loyal Mdewakanton. In the
words of the Federal Circuit, the February 1863 Act
defined the property interest that the Indians were to
receive in the lands set aside for them. The Federal
Circuit acknowledged that the language of that Act
“clearly would have created an inheritable beneficial
interest in the recipients of any land conveyed under
the statute.”10 The Federal Circuit mistakenly ruled,
however, that this language was “superseded” by
another statute passed by Congress two weeks later,
on March 3, 1863 (the “March 1863 Act”).11

The March 1863 Act was entitled “An Act for the
Removal of the Sisseton, Wahpaton, Medawakanton
and Wahpakoota Bands of Sioux and Dakota Indians
for the Disposition of their Lands in Minnesota and
Dakota.”12 The March 1863 Act was not a nullification
of the February 1863 Act, nor did it supersede
the February Act. Rather, the March Act continued
and expanded upon the February 1863 Act by
_________________________________

10 Wolfchild, et al. v. United States, 559 F.3d 1278, 1282
(Fed. Cir. 2009), Wolfchild Petition, App. 7.
11 12 Stat. 819, App. 7-10.
Notably, it does not appear the March 1863 Act was raised
by the defendant United States in any of its moving papers or
oral argument, nor in the lengthy and scholarly October 27,
2004 Opinion and Order of the Honorable Judge Charles Lettow
which underlay the appeal to the Federal Circuit. Its first appearance
in this case was in the Federal Circuit Judgment.
12 12 Stat. 819, App. 7-10.



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10

extending to the Secretary of the Interior authority to
use confiscated tribal lands as a potential source of
the corpus of that trust. In summary, the March Act
authorized and guided the President and the Secretary
of the Interior: (a) to assign new lands outside
Minnesota to the warring band members exiled from
Minnesota after the Conflict (Section 1);13 (b) to
survey and prepare for sale the former reservation
lands of the warring bands (Section 2);14 (c) to permit
entry and settlement of these reservation lands
following auction (Section 3);15 and (d) to apply the
proceeds from such sale to the construction of new
homes for the warring bands in their new reservation
lands (Section 4).16

Of particular significance here, however, the
March Act further provided that the Secretary was
allowed to locate:

“ . . . any meritorious individual Indian of
said bands, who exerted himself to save the
lives of the whites in the late massacre, upon
[the prior Dakota reservation lands] . . .
assigning the same to him to the extent of
eighty acres, to be held by such tenure as is
or may be provided by law.”17
__________________

13 12 Stat. 819, App. 7.
14 12 Stat. 819, App. 7-8.
15 12 Stat. 819, App. 8.
16 12 Stat. 819, App. 9.
17 12 Stat. 819, Section 4, App. 9.



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11

(Emphasis added). Coming only two weeks after the
February 16 Act which directed creation of a
trust of inalienable land to be held for the Loyal
Mdewakantons and their heirs forever, the March Act
permitted the Secretary of the Interior to use parcels
of former reservation lands to achieve that purpose.18

Nowhere in the March 1863 Act was there any
language stating or implying the Federal Circuit’s contrary
conclusion: that the March Act superseded the
February 1863 Act. Nor is there any Congressional
history in the record to suggest such a goal – a goal
which makes no sense given the clearly expressed
intent of Congress only weeks earlier to provide for
the Loyal Mdewakanton and their heirs “forever.”

While the record is sketchy of the Interior Department’s
initial efforts to provide land and support
to the Loyal Mdewakanton in compliance with the
1863 Acts, it is clear that the February and March
1863 Acts’ provisions for the Loyal Mdewakanton
were ultimately funded in the Congressional Appropriation
Acts of 1888, 1889 and 1890.19 Thereafter, the
land and other resources appropriated for the benefit
of the Loyal Mdewakanton were held and

_______________

18 Notably, the assignment mechanism described in the
February and March 1863 Acts for insuring that the Loyal
Mdewakanton land remained inalienable “forever” was applied
over the next century to the lands acquired in 1888 and
thereafter “held” by the United States, “set apart” for individual
Loyals, and “assigned” to them as life estates.
19 Wolfchild Petition, App. 154-156.



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12

administered by the Department of Interior toward
that end.

The fiduciary relationship resulting from the
February and March 1863 Acts and the funding
Appropriation Acts of 1888, 1889 and 1890 was
honored by the government for the next one hundred
years. Hundreds of documents were officially recorded
by Interior reciting the trust corpus lands as
being “held in trust,” and governmental actions
consistently treated the lands and other resources as
trust assets held exclusively for the benefit of the
Loyal Mdewakanton heirs.

Examples of actions by the Department of the
Interior and Congress consistent with recognition of a
fiduciary obligation over the next century included,
among other measures:

• Creating an assignment system by
which legal title to the land remained in
the United States’ name, but land was
assigned for beneficial use by the Loyal
Mdewakanton and their heirs;
• Creating evidence of land assignments
to the assignees which certified that the
particular land recipient “and his heirs
are entitled to immediate possession of
said land, which is to be held in trust by
the Secretary of the Interior, for the



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13

exclusive use and benefit of the said
Indian”20 (Emphasis added);

• Requiring unanimous approval, in 1901,
of all Loyal Mdewakanton for the proposed
sale of a small section of the 1886
trust lands, “The land was purchased
for . . . [the] benefit [of the Loyal
Mdewakanton], and the title is in them
subject to a provision by which they cannot
convey it;”21

• Passage of the 1934 Indian Reorganization
Act (“IRA”) which provided for the
continuation of all trust rights and
benefits then existing and Interior’s continuing
practice of holding and administering
the corpus lands consistent
with the IRA; and

• Acknowledging, in the sale of a tract of
the 1886 lands in 1944, that the transfer
and sale of the tract operated as a “full,
complete and perfect extinguishment” of
all the “right, title and interest” that the
Mdewakanton and Wahpakoota bands
have had in the tract.22

Finally, in 1980, certain Indian communities
which had been organized pursuant to the 1934
_________________________

20 Indian Land Certificate of Harry Bluestone (June 1,
1905), Wolfchild Petition, App. 139-142.
21 34 Cong. Rec. 2523 (1901).
22 Act of 1944, § 2, 58 Stat. at 274.


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14

Indian Reorganization Act,23 sought greater control
over the lands acquired for the Loyal Mdewakanton.
Those trust corpus lands were contiguous with additional
non-trust lands controlled by those communities
– creating a “checkerboard” pattern of ownership
interests which impeded the development. A bill was
proposed to eliminate the long standing recognition of
distinctions between these Indian community lands
acquired and held by the United States exclusively
for over a century for those Native Americans “who
were descendants of the 1886 Mdewakanton and who
had exclusive rights to the benefit of the 1886
lands.”24 Congress ultimately passed the bill, and it
was signed into law by President Carter on December
19, 1980.25

In the Senate Report of the 1980 Act, Congress
emphasized the United States’ continuing fiduciary
obligations to honor the Loyal Mdewakanton beneficiaries’
rights when it explained that the purpose of
the 1980 Act was to “enhance the beneficial use of the
land.” The Report further clarified that the 1980 Act
would make “no change to existing law” and would
affect only a “technical change in status” of the land.
Nowhere did Congress state or even suggest: (a) that
those century-old rights were to be nullified; (b) that
________________


23 See Act of 1934, 25 U.S.C. §§ 462, 463, 465 and 479,
Indian Reorganization Act, et seq.
24 H.R. Rep. No. 96-1409 (1980), App. 40-41.
25 126 Cong. Rec. 32,898 (1980), App. 40-41.



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15

the trust relationship was to be abolished; or (c) that
beneficiaries were to be forever barred from enjoyment
of the benefits flowing from the 1886 lands.26

Only subsequent to the 1980 Act, despite the
absence of any authorization to abolish the acknowledged
rights of these beneficiaries, did the United
States abandon the heirs of the Loyal Sioux. Rather
than ensuring that the new Indian communities and
the Interior Department coordinate and develop the
community lands with those held for the Loyal
Mdewakanton so as to benefit both the distinct communities
and the Loyal Mdewakanton beneficiaries,
the government suddenly allowed all benefits to flow
only to the communities’ own members to the exclusion
of the thousands of Loyal Mdewakanton.

Since that time, the Loyals’ trust corpus lands
have been employed for the enrichment of the
controlling communities and their narrowly enrolled
members. Ninety-five percent of the Loyal beneficiaries
have been excluded from membership in
those communities. Yet the government has set aside
nothing for the use and benefit of these Respondents
or the Wolfchild and Zephier Petitioners.

This breach of the fiduciary duty of the
government, established in the legislation of 1863
through 1896, continues to the present day.
--------------------------------- ♦ ---------------------------------
26 App. 40-41.



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16

REASONS FOR GRANTING PETITIONS

As expressed in the Petitioners’ arguments, and
supported by the following Respondents’ arguments,
in order to reach its result the Federal Circuit Court
of Appeals incorrectly:

(1) Adopted a conclusion and position contrary
to government practice and pronouncements
for over a hundred years,
and never taken in prior litigation of
these issues by the United States – that
no legal trust ever existed;

(2) Focused on only the last step in the trust
creation process – the Appropriation
Acts funding the trust – and ignored the
role of the 1863 Act in creation of the
trust;

(3) Ignored the evolution of Indian treaty
and trust law over a 120 year period by
insisting upon an explicit declaration of
a “trust” in the Appropriation Acts funding
the trust corpus;

(4) Ignored clear Congressional intent, expressed
in the 1863 Act, to establish a
trust in perpetuity for the heirs of the
Loyal Mdewakanton;

(5) Misconstrued the 1980 Act contrary to
its language and history; and

(6) Disregarded the Carcieri decision, at 129
S.Ct. 1058, 172 L.Ed.2d 791 (2009).


#######################################################################################

[mdenney]

17

These Respondents therefore support Petitioners’
prayer for review and reversal of the Federal Circuit’s
opinion, as argued more fully below.

I. The Federal Court of Appeals Opinion
Shattered the Loyal Mdewakantons’
“Trust” By Adopting a Conclusion Contrary
to Government Practice and Pronouncements
for Over a Hundred Years,
and Never Taken By Any Party or Court
Before This Litigation – That No Legal
or Equitable Trust Ever Existed.

The sacred significance of a trust is highlighted
by the word itself. Here, in 1863 through 1890, Congress
set forth the historical foundation, legislative
purpose and the means for establishing a trust
relationship between the United States government
and the Loyal Mdewakanton. Congress entrusted the
executive branch with authority and responsibilities:
to purchase and hold lands, and manage the resulting
corpus for the use and benefit of the Loyal
Mdewakanton and their heirs forever. In turn, the
beneficiaries placed their “trust” in the good faith of
the government to act consistent with its promises.
For over one hundred years, that trust was honored
and the beneficiaries’ reliance on the government was
affirmed.

Even in the Act of 1980, Congress once again
recognized the long-standing existence and purpose of
the trust corpus for the “use and benefit” of the Loyal
Sioux. Both the House and Senate Report(s) to the



#########################################################################################


18

1980 Act stated unequivocally that the intent of that
Act was to “enhance” the benefits owed to the Loyal
Mdewakanton.27 Thus from 1863 through 1980 and
beyond, the trust between the federal government
and the Loyal Sioux was maintained.

Only subsequent to these acknowledgments did
the government begin to deviate from its fiduciary
mandate by allowing trust corpus assets to be used to
benefit exclusively Community members. Yet membership
in the communities consists of less than five
percent of the class of intended beneficiaries (heirs of
the Loyal Mdewakanton) and includes a large percentage
of non-beneficiaries (heirs of Sioux who were
not among the Loyal Mdewakanton). Thereby the
trust, in all of its meanings, was broken.

The District Court, with the benefit of years of
briefings and hearings, understood this history, the
statutory creation of the trust, and its breach. Unfortunately,
the Federal Circuit panel did not. By
adopting the United States’ contention that no trust
ever existed – a contention never previously claimed
in any other litigation relating to these issues – the
Federal Circuit rendered irreparable what was
heretofore only broken.

What relationship has existed for the past
century between the United States and the Loyal
Mdewakanton, if not a trust? What does the current
_______________

27 App. 11-39.



#########################################################################################


19

opinion say to the thousands of heirs about the
sanctity of their ancestral rights or their relationship
with the federal government? What does this decision
suggest to Native Americans across the century about
the fragility of placing their trust in the government’s
promises? This case cries out for review.

II. The Federal Circuit Focused on Only the
Last Step in the Trust Creation Process –
the Appropriation Acts Funding the
Trust – and Ignored the Role of the 1863
Act in Authorizing the Creation of the
Trust.

In the Federal Circuit’s analysis of the issues in
this case, it ignored or misinterpreted the February
1863 Act and related legislation, reviewing the
subsequent Appropriation Acts in isolation from their
source.28 This analysis was both legally and factually
improper.

The Honorable Judge Charles Lettow of the
United States Court of Federal Claims had the
benefit of years of experience and lengthy hearings,
briefs, and argument when he certified the questions
for determination by the Federal Circuit. With the

_____________

28 In fact, the Federal Circuit restated the carefully worded
certified question to support this method of evaluating the
issues, recasting the lower Court’s certification of the issue from
whether a trust was created “in connection with and as a consequence
of” the Appropriation Acts, to whether the Appropriation
Acts themselves, in isolation, created a trust.


###########################################################################################


20

benefit of this knowledge, Judge Lettow did not ask
whether the Appropriations Acts of 1888, 1889, and
1890, in isolation, created a trust. The Court of
Claims recognized the importance of the dramatic
historical context and the origin of the trust in the
authorizing language of the February 1863 Act. The
Court of Claims further understood that the trust
corpus at issue was ultimately acquired by the United
States pursuant to the Appropriation Acts of the
1880’s. These Appropriations Acts were necessary to
establish the final trust corpus – but they drew
authority from the February 1863 Act announcing the
creation of the trust.

Accordingly, the certified question from the Court
of Claims asked: “[W]hether a trust was created in
connection with and as a consequence of the . . .
Appropriation Acts. . . .” (Emphasis added). Thus, the
issue was whether a trust was created not in
isolation, but in conjunction with, the 1888-1890
legislation.

The Federal Circuit’s analysis looked exclusively
to the Appropriation Acts for what it deemed was
essential language necessary for creation of the trust
– i.e. the Appropriation Acts were required to stand
alone in the creation of a trust.29 With this

_____________________

29 As argued by the Wolfchild Petitioners, it was further
error for the Federal Circuit to assert that any particular
language was required in the statute to establish a trust, so long
as the indices of a trust existed.



###########################################################################################



21

inexplicably myopic approach to the certified questions,
the Federal Circuit reached the conclusion that
the Appropriation Acts, standing alone, did not create
a trust.

The Federal Circuit did recognize that the February
1863 Act could not be entirely ignored if it was
to conclude that no trust was created for the Loyal
Mdewakanton. The Federal Circuit acknowledged
that:

“[The February 1863 Act] language clearly
would have created an inheritable beneficial
interest in the recipients of any land conveyed
under the statute.”30

The Federal Circuit went on to conclude,
however, that the subsequent March 1863 Act
“superseded” the February 1863 Act, and therefore
that the trust creating language of the February 1863
Act could be ignored in its analysis.

The Federal Circuit’s conclusion that the March
1863 Act superseded the prior February Act was
reached without reference to any language in the
March Act which would support such a conclusion,
nor with any citation to legal authority for this conclusion.
In fact, in order to reach its result, the
Federal Circuit ignored longstanding precedent of
this Court that repeals of legislation by implication
are disfavored and that, in the absence of an
affirmative showing of a legislative intention to
_________________________

30 Wolfchild Petition, App. 29.



#########################################################################################



22

repeal, the only permissible justification for repeal by
implication is irreconcilability.31

Consistent with this rule, the intention of the
legislature to supersede a prior statute must be clear
and manifest: it is not sufficient to establish such a
repeal that a subsequent law covers some or all of the
cases provided for by the prior act.32 If, by any
reasonable construction, two statutes on the same
subject could stand together, they are required to so
stand.33

In the face of this black letter law, there was no
basis for the Federal Circuit to conclude that the
March 1863 Act superseded the February Act. In fact,
it was not even a close issue. As discussed above,
there is no language whatsoever in the March 1863
Act even suggesting a statement of intent to
supersede the legislature’s two week old direction to
the Secretary of the Interior to establish lands and
support for the Loyal Mdewakanton and their “heirs
forever.” Neither was the March 1863 Act itself in any
way irreconcilable with the February 1863 Act.

Accordingly, the Federal Circuit could only reach
its erroneous decision by recasting the certified
______________________

31 See State of Georgia v. Pennsylvania R. Co., 324 U.S. 439;
5 S.Ct. 716; 89 L.Ed. 1051 (1945).

32 See U.S. v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84
L.Ed. 181 (1939).

33 See J.E.M. Ag Supply Inc.v. Pioneer Hi-Bred Intern., Inc.,
534 U.S. 124, 122 S.Ct. 593, 151 L.Ed. 508 (2001); and State of
South Carolina v. Stoll, 84 U.S. 425 (1873).



#########################################################################################



23

question presented to it; ignoring long standing
precedent of this Court as to when subsequent
legislation can be deemed to supersede prior Congressional
Acts; and thereby conclude with a decision
which negated the expressed will of Congress to
create inheritable trust rights in the February 1863
Act.

This Court should correct this manifest error.

III. The Federal Circuit Opinion Ignored
Long-Standing Indian Treaty and Trust
Law By Declaring the Necessity of an
Explicit Declaration of a Trust in the
Appropriation Acts Funding the Trust
Corpus.

As argued above, the standing opinion collapses
because its critical assumption, that the March 1863
Act superseded the February 1863 Act, is incorrect as
a matter of law. The Federal Circuit opinion rests on
and requires the false conclusion that the 1863 Acts
(authorizing the establishment of a land set aside,
and assignments of a trust corpus of land) had no
legal or equitable effect. Despite the absence of any
legal or evidentiary support for such a conclusion, the
Federal Circuit asserted: “Two weeks after the
enactment of that provision [Feb. 16, 1863 Act, Sect.



########################################################################################


24

9], . . . Congress superseded it with another statute
dealing with the same authorization.”34

Native Americans have long held a strained
relationship of suspicion toward the federal government.
That history need not be repeated in this brief.
However, that relationship will not be improved by
allowing the Federal Circuit’s decision to stand. The
lessons are stark. Despite sacrificing for the country
and receiving protection and provision for that
courage, Indians still cannot count on the government
to keep its promises.

The ancestors of the Petitioners here sacrificed
everything for their neighbors. To replace treaties
annulled for no fault of theirs, these Indians were
promised the benefit of lands to be held and managed
by the government to honor their loyalty, courage and
suffering. The government repeatedly reassured them
by recognizing and maintaining the resulting trust
for a century. Congress eventually promised the
beneficiaries that it would “enhance” their benefits by
legislating “technical changes in the status” of the
trust lands that would “effect no change in existing
law.” The government even maintained in official
court documents and established by federal court
rulings that a trust exists.35
_____________________


34 Wolfchild Petition, App. 7.

35 See Brewer v. Acting Deputy Assistant Secretary, 10 IBIA
110, 119 Note 8 (1982); Cermak v. Babbitt, 234 F.3d 1356, 1358-
59 (Fed. Cir. 2000); and Cermak v. Norton, 322 F.Supp.2d 1009,
(Continued on following page)



#######################################################################################3

[mdenney]

25

Nevertheless as it stands, the courts may eradicate
these Native Americans’ ancestral rights and
benefits, using a 120-year retrospective insistence on
an explicit declaration of a “trust” in appropriation
acts funding the trust corpus. This is not consistent
with the hard-fought evolution of Indian treaty and
trust law.

IV. The Federal Circuit Ignored the Clearly
Expressed Intent of Congress to Establish
Perpetual Rights in the Loyal
Mdewakanton and Their Heirs.

The congressional intent to honor the courage
and sacrifice of the Loyals during a most trying
period in American history consistently appears in
the unique treatments specifically given to Loyals by
the Department of the Interior through the next
hundred years. This should be given great weight.
Examples abound in the record.36

Nowhere does the 1980 Act notify, suggest,
authorize or mention a termination of these rights
and benefits of the vast majority of beneficiaries.
__________

1015 (D. Minn. 2004), aff ’d, Cermak v. United States, 478 F.3d
953 (8th Cir. 2007).

36 See Interior Department practices with respect to holding
of monies (JA0825, 1737, 2543 and 3573-78); holding of monies
from gravel pit and quarry receipts (JA2539-45); and Land
assignment certificates (JA0940-44, 1144, 1146, 1150-51, 1153
and 2009-23).



###########################################################################################


26

Instead, the 1980 Act recognizes and furthers the
mandate of the 1863 Acts and the enabling acts of
1880-1890. The 1980 Act addresses barriers to the
beneficiaries’ ability to enjoy the most productive use
of the 1886 lands due to the barriers created by a
jurisdictional checkerboard ownership pattern. By
allowing community development of a seamless
pattern of land ownership, the referenced benefits to
the Loyals were to be “enhanced” – not obliterated.
One can only imagine the outcry in and to Congress
had it understood – as the government now argues –
that it was cancelling one hundred years of fiduciary
obligations and cutting off rights and benefits of
thousands of descendants of the Loyal Mdewakanton.
Had the Federal Circuit’s radical interpretation been
predicted, not only would the Act have lacked any
language supporting such a conclusion: the Act would
have been replete with language insuring no such
affect.

In addition to the bill itself, the 1980 Act’s
legislative history directly contradicts the claim that
it terminated the Loyals’ trust:

• The Senate Report concludes that the
passage of the 1980 Act would effect
“no change in existing law.”37 Yet, the
Federal Circuit’s interpretation would
radically change over one hundred years
of existing law.
_________

37 App. 39.


#############################################################################################


27

• The House and Senate Reports state
that the bill is only a “technical change
in the status” of the 1886 lands – not a
radical shift in benefits, rights and
ownership to the exclusion of ninety-five
percent of the beneficiaries.38

• The House and Senate Reports reassure
the legislature that the bill “protects the
rights of all persons having a present
interest in the lands.”39 The Loyals were
the only persons with a present interest
in the lands.

• The House and Senate Reports further
state, “The purpose [of the 1980 Act] is
to change and clarify the legal status of
the lands . . . in order to enhance the
beneficial use of the lands to be . . . ”
(Emphasis added).40 “Enhance” whose
beneficial use? Only the Loyals held any
rights to beneficial use and only their
rights could be “enhanced.” The recently
formed communities had no such
beneficial use to enhance. But consistent
with Petitioner’s positions, the communities’
ability to manage seamless reservation
property would “enhance the
beneficial use” of the Loyals – as well as
____________

38 App. 11-39.
39 App. 11-39.
40 App. 40-41.



################################################################################################



28

provide some advantage to non-Loyals,
as the 1980 Act recognizes.41

• The House and Senate Reports further
state that there will be “no additional
cost to the government.” Why? Because
the bill enhanced the rights of Loyals
and also contributed to the ability of
communities to better manage their
entire reservation property to the benefit
of the communities and beneficiaries
alike. Thus, no one was damaged or
harmed by the 1980 Act. Accordingly,
there was no controversy and no
anticipation of litigation for the loss of
benefits to thousands of Loyals as would
have been obvious had that been the
bill’s intent.42

• The House and Senate Reports make
no mention, despite lengthy descriptions
of the 1980 Act and its purposes, of
annulling rights and benefits provided to
Loyals for 100 years. Nor do the Reports
suggest that there is any annulment of
the Congressional intent emphatically
expressed in the 1863 Act, the 1888-1890
Appropriation Acts and the many acts
following that all recognized the rights
_________________

of the Loyals.43
41 App. 40-41.
42 App. 40-41.
43 App. 11-39.



###############################################################################################



29

In summary, the seamless history of Congressional
action and pronouncements toward the
Loyal Mdewakanton from 1863 through 1980 all
demonstrate consistent and unbroken Congressional
intent to honor the Loyal Mdewakanton and their
heirs forever.

V. The Federal Circuit’s Opinion Rewrites
the 1980 Act Contrary to its Language
and History.

What the Federal Circuit opines as Congressional
intent in 1980 was never presented in any
of the House or Senate Reports or on the House floor,
nor does it appear in the language of the statute
itself. Moreover, this interpretation does not square
with any of the history of the trust relationship
between the government and the Loyals flowing
seamlessly from 1863 on.

The Court’s ignoring of that history is telling. As
the 1980 Act makes clear, the history of the
acquisition of the 1886 lands flows directly from the
sacrifice and loss suffered by the Loyals in the 1862
uprising as recognized in the 1863 Act. Congress’
concerns in 1980 that the “held” land was not
receiving its highest and best use for the benefit of
the Loyal heirs, due to practical problems of efficient
investment and effective jurisdiction, is also clearly
stated.

The Congressional concern expressed in the 1980
Act is for the Loyals – no one else. Yet the decision of



###############################################################################################



30

the Federal Circuit would reach a contrary end:
completely strip the very ancestral rights of those
beneficiaries which the Congress expressly recognized
and sought to “enhance.” It is entirely unreasonable
to conclude that the Congress intended such a result
without any notice of trust termination and without
mention of any intent to abolish or reverse beneficial
rights flowing from 1863 through the 1880-1890 Acts.
Nor is there any expressed intention – unlikely in any
event – that Congress sought to transfer these benefits
to non-beneficiary members of newly formed
communities.

The Federal Circuit reading inverted Congressional
intent, rewrote American history, and
adopted the United States’ after-the-fact attempt to
rationalize its failure to perform its fiduciary role as
trustee of the Loyals’ beneficial rights in the 1886
lands.

VI. The Federal Circuit Disregarded Carcieri.
Two weeks before the Federal Circuit panel
issued its opinion here, this Court announced its
decision in Carcieri, supra. That decision was brought
to the attention of the panel. However, rather than
applying its precepts, the Circuit dismissed it in a




#################################################################################################



31

footnote as not “in any way relevant” to the issues
herein.44

This response was stunning. Carcieri dealt with
the issues directly relevant to the present case. In
Carcieri, the Court considered the proper interpretation
of statutory authorizations related to
Indian trusts (the 1934 Indian Reorganization Act);
utilized extensive evidence of the Department of the
Interior’s own understanding and application of the
statute; reversed the First Circuit’s and District
Court’s holdings in favor of the federal government’s
granting extensive trust rights to certain newly
formed Indian communities; and rejected the government’s
arguments that it was authorized by
statute to do so.

Thus, this Court in Carcieri provided direction in
Indian trust cases – direction dismissed by the panel
as having any bearing on this case. In particular, the
Court’s historically detailed analysis of the precise
meaning and intent of the IRA statute did not stop
at only an internal examination of the rhetoric of
the bill in isolation, but put substantial weight on
the government’s documented interpretation of that
language and its management of the issue with the
same party. Yet, the Federal Circuit dismissed that
analysis in one footnote and ignored the hundreds of
exhibits of documented evidence that established
objectively the countless times that the 1886 lands

"Wolfchild Petition, App. 53.



###############################################################################################



32

were referenced as held in trust for the Loyal
Mdewakanton’s benefit. In short, the Federal Circuit
panel did what the courts in Carcieri did – which
subjected the latter courts to reversal.

The Carcieri decision was pointedly brought to
the panel’s attention, yet with no analysis, the panel
waived aside the Supreme Court’s guidelines for
looking at how, when, and whether the government
places assets in trust for the benefit of Native
American groups – especially involving communities
not recognized at the time of the 1934 IRA.

The Supreme Court should reestablish and
enforce the guidelines it provided in Carcieri.

In addition, the Federal Circuit’s opinion ignored
not only the analytical guidelines, but the holding of
Carcieri. As such, it created a quagmire of issues that
could and should have been avoided.

As it stands, the instant opinion concludes that,
despite 100 years of trust management and repeated
reassurance of the trust’s existence and benefit, no
trust ever existed. Yet, the Court then views the 1980
Act as authorizing the Department of the Interior to
abolish all beneficial rights to land purchased and
held for a specific group of Indians recognized since
1863 and to transfer all rights and benefits exclusively
to small Indian communities – communities
which did not exist in 1934 at the time of the IRA’s
passage. Consistent with Carcieri, the government



################################################################################################



33

had no authority under the IRA to establish this new
trust. If, as Petitioners argue and the evidence
proves, the land was already held in trust for the
benefit of a distinct group of Indians (the Loyals),
recognized since 1863, there is no contradiction with
Carcieri’s holding a trust already existed and the
denoted beneficiaries’ rights were to be “enhanced” in
1980 to allow the land’s highest and best use for the
benefit of the Loyal heirs. That effort to enhance the
benefits to the designated beneficiaries was exactly
what a trustee exercising its fiduciary responsibilities
should have done in any case. That the government
later failed to follow that 1980 Congressional
mandate and breached its fiduciary duty to the
Loyals does not change the historical or legal fact
that a trust relationship had existed with the Loyals
for over one hundred years and was not extinguished
by the 1980 Act’s enhancement of beneficiary rights.

VII. The Federal Circuit Opinion Appears to
Create a New Strict Construction Standard
and Rejects the Principle of a
“General Trust Relationship Between
the United States and the Indian People.”

There is no dispute that the 1886 lands have
been acquired, held and managed for the use and
benefits of Loyal Mdewakanton for over a century.
Particularly in light of the unique history here, this
relationship is consistent with the principle that



#################################################################################################

[mdenney]

34

there exists a “general trust relationship between the
United States and the Indian people,” United States
v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77
L.Ed.2d 580 (1983) (“Mitchell II”).

Yet, disregarding the general trust principle of
Mitchell II, the Federal Circuit adopted the opposite
approach – one of strict statutory construction against
the existence of a trust. Where does this leave the
principle enumerated in the Mitchell decisions? Has
that principle been now discarded?

All Native Americans have an interest in the
resolution of this issue. It deserves careful and clear
consideration by this Court.

--------------------------------- ♦ ---------------------------------

CONCLUSION

The Wolfchild and Zephier Petitions for Writs of
Certiorari should be granted.

Respectfully submitted,

SCOTT A. JOHNSON
Counsel of Record
TODD M. JOHNSON
J. MICHAEL SCHWARTZ
JOHNSON LAW GROUP LLP
10580 Wayzata Boulevard
Suite 250
Minnetonka, MN 55305
[phone]

Attorneys for Respondents



################################################################################################



App. 1

THIRTY-SEVENTH
CONGRESS. SESS. III CH. 84, 86, 87. 1863.

* * *

CHAP. XXXVII. – An Act for the Relief of Persons for
Damages sustained by Reason of Depredations
and Injuries by certain Bands of Sioux Indians.

Whereas the United States heretofore became bound
by treaty stipulations to the Sisseton, Wahpaton,
Medawakanton, and Wa[h]pakoota bands of the
Dakota or Sioux Indians to pay large sums of
money and annuities, the greater portion of
which remains unpaid according to the terms of
said treaty stipulations; and whereas during the
past year the aforesaid bands of Indians made an
unprovoked, aggressive, and most savage war
upon the United States, and massacred a large
number of men, women, and children within the
State of Minnesota, and destroyed and damaged
a large amount of property, and thereby have
forfeited all just claim to the said moneys and
annuities to the United States; and whereas it is
just and equitable that the persons whose property
has been destroyed or damaged by the said
Indians, or destroyed or damaged by the troops
of the United States in said war, should be
indemnified in whole or in part out of the
indebtedness and annuities so forfeited as aforesaid:
Therefore –

Be it enacted by the Senate and House of Representatives
of the United States of America in Congress
assembled, That all treaties heretofore made and
entered into by the Sisseton, Wahpaton, Medawakanton,
and Wahpakoota bands of Sioux or Dakota Indians, or



##############################################################################################



App. 2

any of them, with the United States, are hereby
declared to be abrogated and annulled, so far as said
treaties or any of them purport to impose any future
obligation on the United States, and all lands and
rights of occupancy within the State of Minnesota,
and all annuities and claims heretofore accorded to
said Indians, or any of them, to be forfeited to the
United States.

SEC. 2. And be it further enacted, That two
thirds of the balance remaining unexpended of
annuities due and payable to said Indians for the
present fiscal year, not exceeding one hundred
thousand dollars, being two thirds of the annuities
becoming due and payable to said Indians during the
next fiscal year, is hereby appropriated, and shall be
paid from the Treasury of the United States, out of
any moneys not otherwise appropriated, to the commissioners
hereinafter provided for, to be apportioned
by them among the heads of families, or, in case of
their decease, among the surviving members of
families of the State of Minnesota who suffered damage
by the depredations of the Sisseton, Wahpaton,
Medawakanton, and Wa[h]pakoota bands of Sioux or
Dakota Indians, or by the troops of the United States
in the late Indian war in the State of Minnesota, not
exceeding the sum of two hundred dollars to any one
family, nor the actual damages aforesaid, and no
moneys shall be paid under this section except upon
those claims which shall be presented to said commissioners
on or before the first day of June next, for
the payment of which the said commissioners shall




###############################################################################################



App. 3

take and return to the Secretary of the Interior and to
the Secretary of the Treasury duplicate vouchers
therefor, certified by them.

SEC. 3. And be it further enacted, That, for the
purpose of making the proper distribution of the
moneys hereby appropriated for the present relief of
such families, and for the purpose of ascertaining the
whole amount of said damages and the persons who
have suffered the same, it shall be lawful for the
President, by and with the advice and consent of the
Senate, to appoint three commissioners, not more
than one of whom shall be a resident of Minnesota,
who shall take an oath in the manner prescribed by
the laws of the United States to faithfully discharge
their duties; they shall entertain and hear the
complaints (in writing, duly verified on oath) of all
and every person aggrieved by the depredations of
said Indians, and by the troops of the United States
in said war; they shall have power to compel he
attendance of witnesses, and to administer the proper
oaths to them to testify the truth; they shall have
power to compel the claimants to be examined and
cross-examined on oath, to be administered by them,
as to their said claim; they shall hold their sessions at
such times and places as will give the persons complaining
the fairest opportunity of verifying their
claim with the least expense; they shall take care
that no unjust or fictitious claim shall be established;
and if they have any reason to suppose that any such
claim is presented, they shall have power, and it shall
be their duty, to procure any countervailing proof, to




########################################################################################



App. 4

their knowledge, that the same may be finally
rejected. The testimony of the witnesses and the
examination of the complainant shall be reduced to
writing, signed and certified by them, respectively,
and shall, with the petition and all the papers
relating to each case, with the finding of the commission,
be transmitted to the Secretary of the Interior
for his approval, rejection, or modification, to
be by him laid before the next Congress. A majority of
the commission may select their presiding officer, and
shall be competent to decide all questions arising
before them.

SEC. 4. And be it further enacted, That said
commissioner shall hold their first session at Saint
Peter’s, in the State of Minnesota, on or before the
first day of April next, for the hearing of claimants,
and that all claims must be presented to said commissioners
on or before the first day of September
next, or the same shall not be heard by them; and the
said commissioners shall make and return their
finding, and all the papers relating thereto, on or
before the first day of December next.

SEC. 5. And be it further enacted, That said commissioners
shall receive for their services and
expenses the sum of two thousand five hundred
dollars each. And they are authorized to depute a
proper person to summon witnesses, who shall be
entitled to receive his actual expenses, to be allowed
by said commissioners, and the sum of three dollars
per day for his services. Witnesses subpoenaed in
behalf of the United States shall receive pay for




#####################################################################################



App. 5

attendance, not to exceed the fees allowed by the laws
of Minnesota for witnesses attending justices’ courts.
And, for paying the expenses of said commission,
the further sum of ten thousand dollars is hereby
appropriated out of the said annuities in the Treasury
of the United States, or so much thereof as may be
necessary to pay the same.

SEC. 6. And be it further enacted, That the
Secretary of the Interior, immediately after the
passage of this act, shall cause the same to be
published in four of the newspapers of the State of
Minnesota which, in his opinion, will give the most
publicity to the same among the people who have
suffered by said depredations, and give notice of the
first meeting of said commissioners, the expenses to
be paid out of the sum appropriated in the next
preceding section.

SEC. 7. And be it further enacted, That if the
complainant, or any witness testifying before said
commissioners, shall be guilty of perjury, upon conviction
thereof in the proper court of the United
States, he shall suffer the pains and penalties
prescribed by the laws of the United States for that
offence.

SEC. 8. And be it further enacted, That the said
commissioners may make rules, not inconsistent with
this act, prescribing the order and mode of presenting,
prosecuting, and proving said claims before
them, which rules shall be published in one newspaper
in the city of Saint Paul and one in Saint Peter



########################################################################################



App. 6

for at least two weeks prior to the first session of said
commission, to be held at Saint Peter as directed in
the fourth section of this act, and the expenses of
each publication shall be paid out of the fund
appropriated in the fifth section of this act.

SEC. 9. And be it further enacted, That the
Secretary of the Interior is hereby authorized to set
apart of the public lands, not otherwise appropriated,
eighty acres in severalty to each individual of the
before-named bands who exerted himself in rescuing
the whites from the late massacre of said Indians.
The land so set apart shall not be subject to any tax,
forfeiture, or sale, by process of law, and shall not be
aliened or devised, except by the consent of the President
of the United States, but shall be an inheritance
to said Indians and their heirs forever.

SEC. 10. And be it further enacted, That said
commissioners, before entering upon the discharge of
their duties as such, shall give bonds in the usual
form to the United States, in the sum of twenty thousand
dollars each, with good and sufficient security,
to be approved by the Secretary of the Treasury,
faithfully to discharge their duties as such, and to
account for any money which may come into their
hands.

APPROVED, February 16, 1863.


______________________________________________________________-



##########################################################################################



App. 7

THIRTY-SEVENTH
CONGRESS. SESS. III CH. 119. 1863.

* * *

Chap. CXIX. – An Act for the Removal of the Sisseton,
Wahpaton, Medawakanton, and Wahpakoota
Bands of Sioux or Dakota Indians, and for the
Disposition of their Lands in Minnesota and
Dakota.

Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, That the President is authorized
and hereby directed to assign to and set apart for the
Sisseton, Wahpaton, Medawakanton, and Wahpakoota
bands of Sioux Indians a tract of unoccupied land
outside of the limits of any state, sufficient in extent
to enable him to assign to each member of said bands
(who are willing to adopt the pursuit of agriculture)
eighty acres of good agricultural lands, the same to be
well adapted to agricultural purposes.

SEC. 2. And be it further enacted, That the
several tracts of land within the reservations of the
said Indians, shall be surveyed, under the direction of
the commissioner of the general land-office, into legal
subdivisions to conform to the surveys of the other
public lands. And the Secretary of the Interior shall
cause each legal subdivision of the said lands to be
appraised by discreet persons to be appointed by him
for that purpose. And in each instance where there
are improvements upon any legal subdivision of said
lands, the improvements shall be separately appraised.
But no portion of the said lands shall be




#########################################################################################



App. 8

subject to preemption, settlement, entry, or location,
under any act of Congress, unless the party preempting,
settling upon, or locating any portion of said
lands shall pay therefor the full appraised value
thereof, including the value of the said improvements,
under such regulations as hereinafter provided.

SEC. 3. And be it further enacted, That after the
survey of the said reservations the same shall be open
to preemption, entry, and settlement in the same
manner as other public lands: Provided, That before
any person shall be entitled to enter any portion of
the said lands by preemption or otherwise, previous
to their exposure to sale to the highest bidder, at
public outcry, he shall become an actual bona fide
settler thereon, and shall conform to all the regulations
now provided by law in cases of preemption;
and shall pay, within the term of one year from the
date of his settlement, the full appraised value of the
land, and the improvements thereon, to the land
officers of the district where the said lands are
situated. And the portions of the said reservations
which may not be settled upon, as aforesaid, may be
sold at public auction, as other public lands are sold,
after which they shall be subject to sale at private
entry, as other public lands of the United States, but
no portion thereof shall be sold for a sum less than
their appraised value, before the first of January,
Anno Domini eighteen hundred and sixty-five, nor for
a less price than one dollar and twenty-five cents per
acre, until otherwise provided for by law.




########################################################################################



App. 9

SEC. 4. And be it further enacted, That the
money arising from said sale shall be invested by the
Secretary of the Interior for the benefit of said
Indians in their new homes, in the establishing them
in agricultural pursuits: Provided, That it shall be
lawful for said Secretary to locate any meritorious
individual Indian of said bands, who exerted himself
to save the lives of the whites in the late massacre,
upon said lands on which the improvements are
situated, assigning the same to him to the extent of
eighty acres, to be held by such tenure as is or may be
provided by law: And provided, further, That no more
than eighty acres shall be awarded to any one Indian,
under this or any other act.

SEC. 5. And be it further enacted, That the
money to be annually appropriated for the benefit of
the said Indians shall be expended in such manner as
will, in the judgment of the Secretary of the Interior,
best advance the said Indians in agricultural and
mechanical pursuits, and enable them to sustain
themselves without the aid of the government; but no
portion of said appropriations shall be paid in money
to said Indians. And in such expenditure, said
Secretary may make reasonable discrimination in
favor of the chiefs who shall be found faithful to the
Government of the United States, and efficient in
maintaining its authority and the peace of the
Indians. Said Indians shall be subject to the laws of
the United States, and to the criminal laws of the
state or territory in which they may happen to reside.
They shall also be subject to such rules and



########################################################################################




App. 10

regulations for their government as the Secretary of
the Interior may prescribe; but they shall be incapable
of making any valid civil contract with any
person other than a native member of their tribe,
without the consent of the President. The Secretary of
the Interior shall also make reasonable provision for
the education of said Indians, according to their
capacity and the means at his command.

APPROVED, March 3, 1863.


______________________________________



########################################################################################




App. 11

96TH CONGRESS
2d Session } HOUSE OF
REPRESENTATIVES{ REPORT
No. 96-1409
================================================================
PROVIDING THAT CERTAIN LAND OF THE
UNITED STATES SHALL BE HELD BY THE
UNITED STATES IN TRUST FOR CERTAIN
COMMUNITIES OF THE MDEWAKANTON
SIOUX IN MINNESOTA
-----------------------------------------------------------------------
SEPTEMBER 26, 1980 – Committed to the Committee
of the Whole House on the State of the
Union and ordered to be printed
-----------------------------------------------------------------------

Mr. UDALL, from the Committee on Interior
and Insular Affairs submitted the following

REPORT

[To accompany H.R. 7147]

[Including the cost estimate of
the Congressional Budget Office]

The Committee on Interior and Insular Affairs, to
whom was referred the bill (H.R. 7147) to provide
that certain land of the United States shall be held by
the United States in trust for certain communities of
the Mdewakanton Sioux in Minnesota, having
considered the same, report favorably thereon with
an amendment and recommend than the bill as
amended do pass.



##########################################################################################

[mdenney]

App. 12

The amendment is as follows:

Page 1, line 3, strike all after the enacting clause
and insert the following:

That all right, title, and interest of the
United States in those lands (including any
structures or other improvements of the
United States on such lands) which were
acquired and are now held by the United
States for the use or benefit of certain
Mdewakanton Sioux Indians under the Act of
June 29, 1888 (25 Stat. 217); The Act of
March 2, 1889 (25 Stat. 980); and the Act of
August 19, 1890 (26 Stat. 336), are hereby
declared to hereafter to be held by the
United States –

(1) with respect to the some 258.25
acres of such lands located within Scott
County, Minnesota, in trust for the
Shakopee Mdewakanton Sioux Community
of Minnesota;

(2) with respect to the some 572.5
acres
of such lands located within Redwood
County, Minnesota, in trust for the Lower
Sioux Indian Community of Minnesota;
and

(3) with respect to the some 120
acres of such lands located in Goodhue
County, Minnesota, in trust for the
Prairie Island Indian Community of
Minnesota.



#########################################################################################




App. 13

SEC. 2. The Secretary of the Interior
shall cause a notice to be published in the
Federal Register describing the lands
transferred by section 1 of this Act. The
lands so transferred are hereby declared to
be a part of the reservations of the respective
Indian communities for which they are held
in trust by the United States.

SEC. 3. Nothing in this Act shall – (1)
alter, or require the alteration, of any rights
under any contract, lease, or assignment
entered into or issued prior to enactment of
this Act, or (2) restrict the authorities of the
Secretary of the Interior under or with
respect to any such contract, lease, or
assignment.

PURPOSE

The purpose of H.R. 7147, introduced by Mr.
Nolan, is to provide that certain lands now held by
the United States for the benefit of certain
Mdewakanton Sioux Communities of Minnesota.

BACKGROUND

H.R. 7147 provides that the title of the United
States to certain lands held for the benefit of certain
Mdewakanton Sioux or their descendants will be held
in trust for the three existing tribal entities of the
Mdewakanton Sioux.



#######################################################################################



App. 14

After the Great Sioux Uprising of 1856, Congress
enacted legislation in 1888, 1889, and 1890, authorizing
the appropriation of funds to acquire lands for
members of the Mdewakanton Sioux tribe who did
not participate in such uprising. These lands were
acquired for the use of the members of the
Mdewakanton Sioux who were living in Minnesota as
of 1886 and their descendants.

After the enactment of the Indian Reorganization
Act of 1934, additional lands were acquired in trust
for the benefit of the three Mdewakanton groups, who
organized under that Act. In order to protect the
rights of descendants of those Sioux for whom the
1886 lands were acquired, the constitution and
bylaws of the groups established two classes of
members: all members of the community who were
entitled to the benefits of the tribal lands acquired
under the Reorganization Act and members who were
descendants of the 1886 Mdewakanton and who had
exclusive rights to the benefits of the 1886 lands.

This distinction has severely hampered the tribal
efforts to achieve self-determination, as well as
effectively barred the Mdewakanton from participation
in several Federal programs.

H.R. 7147 would eliminate this distinction by
providing that the 1886 lands will be held in trust
by the United States for the benefit of the three
Mdewakanton communities.




####################################################################################




App. 15

COMMITTEE AMENDMENT

The Committee adopted an amendment in the
nature of a substitute proposed by the Department of
the Interior. The only substantive changes that
amendment makes is (1) to include a 40 acre tract of
land which was inadvertently excluded from H.R.
7147 as introduced and (2) to provide that the
Secretary of the Interior would publish in the Federal
Register an accurate description of the lands to be
transferred rather than setting out the legal
description in the bill as introduced.

SECTION-BY-SECTION ANALYSIS

Section 1 provides that all right, title and
interest of the United States to certain lands which
were acquired for the benefit of certain Mdewakanton
Sioux pursuant to three Acts of Congress will be held
by the United States in trust for the benefit of three
Mdewakanton Sioux Communities in Minnesota.

Section 2 provides that the Secretary of the
Interior shall cause an accurate description of such
lands to be published in the Federal Register and
that such lands will be a part of the reservation of the
respective Sioux communities.

Section 3 provides that nothing in the Act shall
affect any existing rights in the lands being
transferred.



#################################################################################



App. 16

COST AND BUDGET ACT COMPLIANCE

Enactment of H.R. 7147 will result in no cost to
the United States. The cost analysis prepared by the
Congressional Budget Office follows:

U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., September 11, 1980.

Hon. MORRIS K. UDALL,
Chairman Committee on Interior and Insular Affairs,
U.S. House of Representatives, Longworth House
Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: Pursuant to Section 403 of
the Congressional Budget Act of 1974, the
Congressional Budget Office has reviewed H.R. 7147,
a bill to provide that certain land of the United States
shall be held by the anited States in trust for certain
communities of the Mdewakanton Sioux in Minnesota,
as ordered reported by the House Committee on
Interior and Insular Affairs, September 10, 1980.

The bill would change the legal status of certain
parcels of land currently owned by the United States,
to that of land specifically held in trust for the three
Sioux communities identified in the bill. This
technical change in the status is expected to facilitate
community development on the reservations. Based
on the review of this bill, it appears that no additional
cost to the government would be incurred as a result
of enactment of this legislation.




################################################################################




App. 17

Sincerely,

ALICE M. RIVLIN, Director.

INFLATIONARY IMPACT STATEMENT

Enactment of H.R. 7147 will result in no
inflationary impact.

OVERSIGHT STATEMENT

No specific oversight activities were undertaken
by the Committee with respect to this legislation and
no recommendations were submitted to the
Committee pursuant to rule X, clause 2(b)2.

COMMITTEE RECOMMENDATION

The Committee on Interior and Insular Affairs,
by voice vote, recommends approval of the bill, as
amended.

DEPARTMENTAL REPORT

The favorable report of the Department of the
Interior, dated September 9, 1980, follows:

U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., September 9, 1980.



###############################################################################




App. 18

Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
U.S. House of Representatives, Washington, D.C.

Dear MR. CHAIRMAN: This reports to your
request for our views on H.R. 7147, a bill “To provide
that certain land of the United States shall be held by
the United States in trust for certain communities of
the Mdewakanton Sioux in Minnesota.”

We recommend the adoption of the enclosed
amendment to H.R. 7147 in the nature of a substitute
and the enactment of the bill as so amended.

H.R. 7147 would declare that all right, title, and
interest of the United States in land in Minnesota
held by the United States for the use of certain
Mdewakanton Sioux Indians under the Acts of June
29 1888 (25 Stat. 217), March 2, 1889 (25 Stat. 980),
and August 19, 1890 (26 Stat. 336), shall be held by
the United States in trust as follows:

(1) some 258.25 acres of land located in
Scott County, all in township 115 north, range 22
west, would be held in trust for the Shakopee
Mdewakanton Sioux Community of Minnesota;

(2) some 492.5 acres of land located in
Redwood County all in township 112 north, range
35 west, would be held by the United States in
trust for the Lower Sioux Indian Community of
Minnesota; and

(3) some 120 acres of land located in
Goodhue County in township 114 north, range 15
west, would be held by the United States in trust



###############################################################################



App. 19

for the Prairie Island Indian Community of
Minnesota.

Land held in trust for each community under the
bill would be a part of the reservation of such
community. The bill would not affect any contract,
lease, or assignment with respect to the land involved
which is in existence on the date of the enactment of
the bill. We note that the bill fails to include in the
description of the land located in Redwood County
two 40-acre tracts in section 2 of township 112 north,
range 35 west, which should be so included – (1) the
southwest quarter northeast quarter and (2) the
northwest quarter southeast quarter.

In 1888, the Department of the Interior
requested the appropriation of “$20,000 for support of
the Mdewakanton Band of Sioux Indians in
Minnesota.” House Ex. Doc. 228, 50th Cong., 1st Sess.
The requested provision was added as a floor amendment,
proposed by Rep. MacDonald of Minnesota, to
an Indian affairs appropriations bill. The sponsor
stated that during a Sioux uprising in Minnesota
during August 1862, “a few of the [Sioux] remained
friendly to the whites and became their trusted allies
and defenders and . . . did valuable service in
protecting our people and their property and, in
saving many lives. . . .” However, under the Act of
February 16, 1863, all treaties with the four Sioux
Bands involved were “abrogated and annulled, and
all the lands, annuities, and claims previously
accorded to said Indians were declared to be forfeited
to the United States” because of the uprising. “I am




###############################################################################



App. 20

almost ashamed to say it,” the sponsor stated, “but
the fact is that no exception was made, even in favor
of these friendly Indians.” Cong. Rec. 2976-2978 (50th
Cong., 1st Sess.)

The resulting Act of June 29, 1888, included the
provision as follows:

For the support of the full-blood Indians in
Minnesota, belonging to the Mdewakanton Band
of Sioux Indians, who have resided in said State
since [May 20, 1886], and severed their tribal
relations, twenty thousand dollars, to be
expended by the Secretary of the Interior in the
purchase, in such manner as in his judgment he
may deem best, of agricultural implements,
cattle, horses, and lands. . . . (25 Stat. at 228-229)

A similar provision was included in the Act of
March 2, 1889 (25 Stat. 980). It provided for a
$12,000 appropriation, added to the Indian beneficiaries
those “who were then [May 20, 1886]
engaged in removing to said State and have since
resided therein,” and specified that $10,000 could be
used in the purchase of such lands and items as “may
be deemed best in the case of each of these Indians or
family thereof.” It also provided that if the amounts
appropriated under that Act or Act of June 29, 1888,
were not expended within the fiscal year for which
they were appropriated, they were to remain
available for the purposes for which they were
appropriated.



###########################################################################3



App. 21

The Act of August 19, 1890, included the
appropriation of $8,000 for the Minnesota Sioux,
utilizing essentially the same language (26 Stat. at
349) as the 1889 Act except that the 1890 Act applied
to “mixed blood” as well as full blood Indians and did
not contain the provision making the funds available
beyond the fiscal year.

The effect of H.R. 7147 would be to change the
legal status of the ownership of the lands involved,
which are now held by the United States under the
Acts described above for the use of those
Mdewakanton Sioux Indian individuals who resided
in (or were enroute to) the State of Minnesota on May
20, 1886, and for their descendants. Under the bill, as
noted above all right, title, and interest in such lands
would be declared instead to be held by the United
States in trust for three Minnesota Sioux tribal
communities.

The Shakopee Mdewakanton Sioux Community
is organized under the Indian Reorganization Act of
1934 (48 Stat. 984) and its governing body is the
General Council of the members of the community.
No lands are now held in trust by the United States
for the community. The 258.25 acres which H.R. 7147
would declare held in trust for such community were
acquired in three transactions in 1890 and 1891 at a
total cost of $4,733. The land has a current value of
approximately $774,750 ($3,000 per acre).

The Lower Sioux Indian Community is organized
under the Indian Reorganization Act and governed by



##########################################################################



App. 22
its Community Council. Some 872.5 acres of land are
now held by the United States in trust for the
community. The 572.5 acres (if the bill is amended to
include the 80 acres erroneously omitted) that the bill
would declare held in trust for such community were
acquired in five transactions in 1889 at a total cost of
$8,357.22. Their current value is approximately
$572,500 ($1,000 per acre).

The Prairie Island Indian Community is also
organized under the Indian Reorganization Act and is
governed by its Tribal Council. Some 414 acres of
land are now held in trust by the United States for
the community. The 120 acres which H.R. 7147 would
declare held in trust for such community were
acquired in a single transaction in 1889 at a cost of
$1,560 and have a current value of approximately
$180,000 ($1,500 per acre).

It should be noted the current membership of
these three communities is not exclusively composed
of the class of Mdewakanton Sioux individuals for
whose benefit such land is now held by the United
States. However, it should also be noted that the cost
to the United States of lands purchased under the
1888, 1889, and 1890 Acts was set off against the
recovery by the Mdewakanton and Wahpakoota
Bands of Sioux Indians in their suit against the
United States (57 Ct. Cl. 357 (1922)), the beneficiaries
of which included many individuals other
than those for whom such land was held by the
United States.



#########################################################################


App. 23

In the case of the Lower Sioux and Prairie Island
Communities, the land acquired under the 1888,
1889, and 1890 Acts for individuals is interspersed
among the land now held in trust for the communities.
The result is a checkerboard pattern of land
used that severely diminishes the effectiveness of
overall land management programs and community
development.

With respect to each of the three communities,
much of the land that would be affected would be
useful for residential or community purposes, which
require long-term lease provisions with an
encumberable document as loan security. However,
such use is not now possible because of the unusual
ownership status of the land which, since it requires
the Secretary of the Interior to assure the continuing
availability of the land for assignment to eligible
beneficiaries of the three Acts, effectively prohibits
the issuance of long-term leases on it. Further, the
land assignments made to those Mdewakanton Sioux
individuals eligible under the Acts are not encumberable
documents that can be used in securing loans
from commercial institutions. The change in the
lands’ status contemplated by H.R. 7147, to lands
held in trust for the three communities, would allow
more productive use of the land by eliminating these
problems and would enable the communities involved
to manage all of their lands more efficiently.

We suggest, in order to avoid the need to include
in the bill a detailed land description that is both
cumbersome and subject to inadvertent error, that




########################################################################



App. 24

the enclosed amendment to H.R. 7147 in the nature
of a substitute be adopted. The amendment would
provide for the publication in the Federal Register of
the legal description of the land involved, a method
by which any error may be more easily corrected. It
also makes minor technical changes in the language
of H.R. 7147.

The Office of Management and Budget has
advised that there is no objection to the presentation
of this report from the standpoint of the Administration’s
program.

Sincerely,

THOMAS W. FREDERICK,
Assistant Secretary.

Enclosure.

AMENDMENT TO H.R. 7147
IN THE NATURE OF A SUBSTITUTE

Strike out all after the enacting clause and insert
in lieu thereof the following:

That all right, title, and interest of the United States
in those lands (including any structures or other
improvements of the United States on such lands)
which were acquired and are now held by the United
States for the use or benefit of certain Mdewakanton
Sioux Indians under the Act of June 29, 1888 (25
Stat. 217); the Act of March 2, 1889 (25 Stat. 980);
and the Act of August 19, 1890 (26 Stat. 336), are





########################################################################




App. 25

hereby declared to hereafter be held by the United
States –

(1) with respect to the some 258.25 acres
of such lands located within Scott County,
Minnesota, in trust for the Shakopee
Mdewakanton Sioux Community of Minnesota;

(2) with respect to the some 572.5 acres of
such lands located within Redwood County,
Minnesota, in trust for the Lower Sioux Indian
Community of Minnesota, and

(3) with respect to the some 120 acres of
such lands located in Goodhue County,
Minnesota, in trust for the Prairie Island Indian
Community of Minnesota.

SEC. 2. The Secretary of the Interior shall cause a
notice to be published in the Federal Register
describing the lands transferred by section 1 of this
Act. The lands so transferred are hereby declared to
be a part of the reservations of the respective Indian
communities for which they are held in trust by the
United States.

SEC. 3. Nothing in this Act shall – (1) alter, or
require the alteration of, any rights under any
contract, lease, or assignment entered into or issued
prior to enactment of this Act, or (2) restrict the
authorities of the Secretary of the Interior under
or with respect to any such contract, lease, or
assignment.


__________________________________



###########################################################################



App. 26

Calendar No. 1178

96TH CONGRESS
2d Session } SENATE { REPORT
No. 96-1047
================================================================
PROVIDING THAT CERTAIN LAND OF THE
UNITED STATES SHALL BE HELD BY THE
UNITED STATES IN TRUST FOR CERTAIN
COMMUNITIES OF THE MDEWAKANTON
SIOUX IN MINNESOTA
-----------------------------------------------------------------------
DECEMBER 1 (legislative day, NOVEMBER 20), 1980. –
Order to be printed

________________________________
-----------------------------------------------------------------------
Mr. MELCHER, from the Select Committee on
Indian Affairs, submitted the following

REPORT

[To accompany H.R. 7147]

The Select Committee on Indian Affairs, to which
was referred the bill (H.R. 7147) to provide that
certain land of the United States shall be held by the
United States in trust for certain communities of the
Mdewakanton Sioux in Minnesota, having considered
the same, reports favorably thereon without amendment
and recommends that the bill do pass.

PURPOSE

H.R. 7147 provides that three parcels of land
totaling approximately 1,000 acres situated in the
State of Minnesota which were acquired by the




#################################################################################



App. 27

United States for the use and benefit of the
Mdewakanton Sioux Indians under three separate
Acts of Congress in the late 1800’s shall continue to
be held by the United States but in trust for three
separate Mdewakanton Sioux communities situated
in that State.

The effect of H.R. 7147 would be to change the
legal status of the ownership of the lands involved,
which are now held by the United States under the
Acts described above for the use of those
Mdewakanton Sioux Indian individuals who resided
in (or were en route to) the State of Minnesota on
May 20, 1886, and for their descendants. Under the
bill, as noted above, all right, title, and interest in
such lands would be declared instead to be held by
the United States in trust for three Minnesota Sioux
tribal communities. The rights of individuals whom
an interest has already been assigned are protected
under the provision of Section 3 of the bill.

BACKGROUND AND NEED

After the Great Sioux Uprising of 1856 Congress
enacted legislation in 1888, 1889, and 1890 authorizing
the appropriation of funds to acquire lands for
members of the Mdewakanton Sioux Tribe who did
not participate in such uprising. These lands were
acquired for the use of the members of the
Mdewakanton Sioux who were living in Minnesota as
of 1886 and their descendants.




##############################################################################

[mdenney]

App. 28

After the enactment of the Indian Reorganization
Act of 1934, additional lands were acquired in trust
for the benefit of the three Mdewakanton groups who
organized under that Act. In order to protect the
rights of descendants of those Sioux, for whom the
1886 lands were acquired, the constitution and bylaws
of the groups established two classes of
members: all members of the community who were
entitled to the benefits of the tribal lands acquired
under the Reorganization Act and members who were
descendants of the 1886 Mdewakanton and who had
exclusive rights to the benefits of the 1886 lands.

This distinction has severely hampered the tribal
efforts to achieve self-determination, as well as
effectively barred the Mdewakanton from participation
in several Federal programs. In the case of the
Lower Sioux and Prairie Island Communities, the
land acquired under the 1888, 1889, and 1890 Acts
for individuals is interspersed among the land now
held in trust for the communities. The result is a
checkerboard pattern of land used that severely
diminishes the effectiveness of overall land management
programs and community development.

With respect to each of the three communities,
much of the land that would be affected would be
useful for residential or community purposes, which
require long-term lease provisions with an encumberable
document as loan security. However, such use
is not now, possible because of the unusual ownership
status of the land which, since it requires the
Secretary of the Interior to assure the continuing



################################################################################




App. 29

availability of the land for assignment to eligible
beneficiaries of the three Acts, effectively prohibits
the issuance of long-term leases on it. Further, the
land assignments made to those Mdewakanton Sioux
individuals eligible under the Acts are not encumberable
documents that can be used in securing loans
from commercial institutions. The change in the
lands’ status contemplated by H.R. 7147, to lands
held in trust for the three communities, would allow
more productive use of the land by eliminating these
problems and would enable the communities involved
to manage all of their lands more efficiently.

LEGISLATIVE HISTORY

H.R. 7147 was introduced by Representative
Nolan of Minnesota and was favorably reported by
the House Committee on Interior and Insular Affairs
on September 26, 1980. The bill passed the House
and was referred to the Senate Select Committee
November 19, 1980. There is no comparable Senate
bill.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

The Select Committee on Indian Affairs, by a poll
of its members on December 1, 1980, by unanimous
vote recommends that the Senate pass H.R. 7147
without amendment.



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App. 30

COMMITTEE AMENDMENTS

There are no Committee amendments.

SECTION-BY-SECTION ANALYSIS

Section 1 provides that certain lands totaling
approximately 1,000 acres situated in the State of
Minnesota which were acquired by the United States
under three separate Acts of Congress for the use or
benefit of certain Mdewakanton Sioux Indians and
their descendants are declared to hereafter be held by
the United States in trust for three separate Sioux
Indian communities. The purpose of this section is to
change and clarify the legal status of the lands in
question in order to enhance the beneficial use of the
lands.

Section 2 provides that the Secretary of the
Interior shall publish in the Federal Register a
description of the lands involved and provides further
that such lands shall be a part of the reservations of
the communities for which they are held in trust.

Section 3 provides that noting in this Act shall
alter, or require the alteration, of any rights under
any contract, lease, or assignment of such lands
entered into or issued prior to enactment of this
legislation this protects the rights of all persons
having a present interest in the lands.



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App. 31

COST AND BUDGETARY CONSIDERATION

The cost estimate for H.R. 7147, as provided by
the Congressional Budget Office, is outlined below:

U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., December 1, 1980.

Hon. JOHN MELCHER,
Chairman Select Committee on Indian Affairs, U.S.
Senate, Washington, D.C.

DEAR MR. CHAIRMAN: Pursuant to Section 403 of
the Congressional Budget Act of 1974, the Congressional
Budget Office has reviewed H.R. 7147, a
bill to provide that certain land of the United States
shall be held by the United States in trust for certain
communities of the Mdewakanton Sioux in Minnesota,
as ordered reported by the Senate Select Committee
on Indian Affairs, December 1, 1980.

The bill would change the legal status of certain
parcels of land, currently owned by the United States,
to that of land specifically held in trust for the three
Sioux communities indentified in the bill. This
technical change in the status is expected to facilitate
community development on the reservations. Based
on the review of this bill, it appears that no additional
cost to the government would be incurred as a result
of enactment of this legislation.

Sincerely,

ALICE M. RIVLIN, Director.



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App. 32

REGULATORY IMPACT STATEMENT

Paragraph 6 of rule XXVII of the Standing Rules
of the Senate requires each report accompanying a
bill to evaluate the regulatory and paperwork impact
that would be incurred in carrying out the bill.

The Committee believes that the bill H.R. 7147
will have no regulatory or paperwork impact.

EXECUTIVE COMMUNICATION

The Executive Communication of the Department
of the Interior dated November 19, 1979,
transmitting departmental views on H.R. 7147 to the
House of Representatives, is as follows:

U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., September 9, 1980.

Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: your request for our views
on H.R. 7147, a bill “To provide that certain land, of
the United States shall be held by the United States
in trust for certain communities of the Mdewakanton
Sioux in Minnesota.”

We recommend the adoption of the enclosed
amendment to H.R. 7147 in the nature of a substitute
and the enactment of the bill as so amended.



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App. 33
'
H.R. 7147 would declare that all right, title, and
interest of the United States in land in Minnesota
held by the United States for the use of certain
Mdewakanton Sioux Indians under the Acts of June
29 1888 (25 Stat. 217), March 2, 1889 (25 Stat. 980),
and August 19, 1890 (26 Stat. 336), shall be held by
the United States in trust as follows:

(1) some 258.25 acres of land located in
Scott County, all in township 115 north, range 22
west, would be held in trust for the Shakopee
Mdewakanton Sioux Community of Minnesota;

(2) some 492.5 acres of land located in
Redwood County all in township 112 north, range
35 west, would be held by the United States in
trust for the Lower Sioux Indian Community of
Minnesota; and

(3) some 120 acres of land located in
Goodhue County in township 114 north, range 15
west, would be held by the United States in trust
for the Prairie Island Indian Community of
Minnesota.

Land held in trust for each community under the
bill would be a part of the reservation of such
community. The bill would not affect any contract,
lease, or assignment with respect to the lands
involved which is in existence on the date of the
enactment of the bill. We note that the bill fails to
include in the description of the land located in
Redwood County two 40-acre tracts in section 2 of
township 112 north, range 35 west, which should be
so included – (1) the southwest quarter northeast




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App. 34

quarter and (2) the northwest quarter southeast
quarter.

In 1888, the Department of the Interior requested
the appropriation of “$20,000 for support of
the Mdewakanton Band of Sioux Indians in
Minnesota.” House Ex. Doc. 228, 50th Cong., 1st Sess.
The requested provision was added as a floor amendment,
proposed by Rep. MacDonald of Minnesota, to
an Indian affairs appropriations bill. The sponsor
stated that during a Sioux uprising in Minnesota
during August 1862, “a few of the [Sioux] remained
friendly to the whites and became their trusted allies
and defenders and . . . did valuable service in
protecting our people and their property, and in
saving many lives. . . .” However, under the Act of
February 16, 1863, all treaties with the four Sioux
Bands involved were “abrogated and annulled, and
all the lands, annuities, and claims previously
accorded to said Indians were declared to be forfeited
to the United States” because of the uprising. “I am
almost ashamed to say it,” the sponsor stated, “but
the fact is that no exception was made, even in favor
of these friendly Indians.” Cong. Rec. 2976-2978 (50th
Cong., 1st Sess.)

The resulting Act of June 29, 1888, included the
provision as follows:

“For the support of the full-blood Indians in
Minnesota, belonging to the Mdewakanton Band
of Sioux Indians, who have resided in said State
since [May 20, 1886], and severed their tribal
relations, twenty thousand dollars, to be



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App. 35

expended by the Secretary of the Interior in the
purchase, in such manner as in his judgment he
may deem best, of agricultural implements,
cattle, horses, and lands . . . ” (25 Stat. at 228-
229)

A similar provision was included in the Act of
March 2, 1889 (25 Stat. 980). It provided for a
$12,000 appropriation, added to the Indian beneficiaries
those “who were then [May 20, 1886] engaged
in removing to said State and have since resided
therein,” and specified that $10,000 could be used in
the purchase of such lands and items as “may be
deemed best in the case of each of these Indians or
family thereof.” It also provided that if the amounts
appropriated under that Act or Act of June 29, 1888,
were not expended within the fiscal year for which
they were appropriated, they were to remain
available for the purposes for which they were
appropriated.

The Act of August 19, 1890, included the appropriation
of 8,000 for the Minnesota Sioux, utilizing
essentially the same language (26 Stat. at 349) as the
1889 Act except that the 1890 Act applied to “mixed
blood” as well as full blood Indians and did not
contain the provision making the funds available
beyond the fiscal year.

The effect of H.R. 7147 would be to change the
legal status of the ownership of the lands involved,
which are now held by the United States under
the Acts described above for the use of those
Mdewakanton Sioux Indian individuals who resided



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App. 36

in (or were enroute to) the State of Minnesota on May
20, 1886, and for their descendants. Under the bill, as
noted above all right title, and interest in such lands
would be declared instead to be held by the United
States in trust for three Minnesota Sioux tribal
communities.

The Shakopee Mdewakanton Sioux Community
is organized under the Indian Reorganization Act of
1934 (48 Stat. 984) and its governing body is the
General Council of the members of the community.
No lands are now held in trust by the United States
for the community. The 258.25 acres which H.R. 7147
would declare held in trust for such community were
acquired in three transactions in 1890 and 1891 at a
total cost of $4,733. The land has a current value of
approximately $774,750 ($3,000 per acre).

The Lower Sioux Indian Community is organized
under the Indian Reorganization Act and governed by
its Community Council. Some 872.5 acres of land are
now held by the United States in trust for the community.
The 572.5 acres (if the bill is amended to
include the 80 acres erroneously omitted) that the bill
would declare held in trust for such community were
acquired in five transactions in 1889 at a total cost
of $8,357.22. Their current value is approximately
$572,500 ($1.000 per acre).

The Prairie Island Indian Community is also
organized under the Indian Reorganization Act and is
governed by its Tribal Council. Some 414 acres of
land are now held in trust by the United States for




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App. 37

the community. The 120 acres which H.R. 7147 would
declare held in trust for such community were
acquired in a single transaction in 1889 at a cost of
$1,560 and have a current value of approximately
$180,000 ($1,500 per acre).

It should be noted the current membership of
these three communities is not exclusively composed
of the class of Mdewakanton Sioux individuals for
whose benefit such land is now held by the United
States. However, it should also be noted that the cost
to the United States of lands purchased under the
1888, 1889, and 1890 Acts was set off against the
recovery by the Mdewakanton and Wahpakoota
Bands of Sioux Indians in their suit against the
United States (57 Ct. Cl. 357 (1922)), the beneficiaries
of which included many individuals other than
those for whom such land was held by the United
States.

In the case of the Lower Sioux and Prairie Island
Communities, the land acquired under the 1888,
1889, and 1890 Acts for individuals is interspersed
among the land now held in trust for the communities.
The result is a checkerboard pattern of land
used that severely diminishes the effectiveness of
overall land management programs and community
development.

With respect to each of the three communities,
much of the land that would be affected would be
useful for residential or community purposes, which





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App. 38

require long-term lease provisions with an encumberable
document as loan security. However, such use
is not now possible because of the unusual ownership
status of the land which, since it requires the
Secretary of the Interior to assure the continuing
availability of the land for assignment to eligible
beneficiaries of the three Acts, effectively prohibits
the issuance of long-term leases on it. Further, the
land assignments made to those Mdewakanton Sioux
individuals eligible under the Acts are not encumberable
documents that can be used in securing loans
from commercial institutions. The change in the
lands’ status contemplated by H.R. 7147, to lands
held in trust for the three communities, would allow
more productive use of the land by eliminating these
problems and would enable the communities involved
to manage all of their lands more efficiently.

We suggest, in order to avoid the need to include
in the bill a detailed land description that is both
cumbersome and subject to inadvertent error, that
the enclosed amendment to H.R. 7147 in the nature
of a substitute be adopted. The amendment would
provide for the publication in the Federal Register of
the legal description of the land involved, a method
by which any error may be more easily corrected. It
also makes minor technical changes in the language
of H.R. 7147.

The Office of Management and Budget has advised
that there is no objection to the presentation of




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App. 39

this report from the standpoint of the administration’s
program.

THOMAS W. FREDERICK,
Assistant Secretary.

CHANGES IN EXISTING LAW

In compliance with subsection (7) of rule XXVII
of the Standing Rules of the Senate, the Committee
notes that there are no changes in existing law.


_________________________


App. 40

94 STAT. 3262

PUBLIC LAW 96-557 – DEC. 19, 1980
Public Law 96-557
96th Congress

An Act

To provide that certain land of the United States
shall be held by the United States in trust for
certain communities of the Mdewakanton Sioux in
Minnesota.

Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, That all right, title, and interest
of the United States in those lands (including any
structures or other improvements of the United
States on such land) which were acquired and are not
held by the United States for the use or benefit of
certain Mdewakanton Sioux Indians under the Act of
June 29, 1888 (25 Stat. 217); the Act of March 2, 1889
(25 Stat. 980); and the Act of August 19, 1890 (26
Stat. 336), are hereby declared to hereafter be held by
the United States –

(1) with respect to the some 258.25 acres
of such lands located within Scott County,
Minnesota, in trust for the Shakopee Mdewakanton
Sioux Community of Minnesota;

(2) with respect to the some 572.5 acres of
such lands located within Redwood County,
Minnesota, in trust for the Lower Sioux Indian
Community of Minnesota; and



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App. 41
(3) with respect to the some 120 acres
of such lands located in Goodhue County,
Minnesota, in trust for the Prairie Island Indian
Community of Minnesota.

SEC. 2. The Secretary of the Interior shall cause a
notice to be published in the Federal Register
describing the lands transferred by section 1 of this
Act. The lands so transferred are hereby declared to
be a part of the reservations of the respective Indian
communities for which they are held in trust by the
United States.

SEC. 3. Nothing in this Act shall (1) alter, or
require the alteration, of any rights under any
contract, lease, or assignment entered into or issued
prior to enactment of this Act, or (2) restrict the
authorities of the Secretary of the Interior under or
with respect to any such contract, lease, or
assignment.

Approved December 19, 1980.


____________________________________________