Shingle Springs Miwok In Support Of Petitioners

[mdenney]

Brief Of Amicus Curiae Historic Shingle Springs Miwok In Support Of Petitioners
Motion To File Amicus Curiae And Brief of Amicus Curiae


link below -

www.mklaw.com/documents/BriefofAmicusCuriaeHistoricMiwok.pdf

[mdenney]

No. 09-579

Supreme Court of the United States

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SHELDON PETERS WOLFCHILD, et al.,
Petitioners,

v.

UNITED STATES, et al.,
Respondents.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit

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MOTION TO FILE AMICUS CURIAE AND BRIEF OF AMICUS CURIE HOSTORIC SHINGLE SPRINGS MIWOK IN SUPPORT OF PETITIONERS

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JEFFREY D. TOCHTERMAN
LAw OFFICES OF JEFFREY D. TOCHTERMAN 2707 K Street, Suite 3
Sacramento, CA 95816
Phone: [phone]
Email: [e-mail]

Counsel for Amicus Curiae

------------------------------------------------

thingyLE LAW BRIEF PRINTING CO. [phone] OR CALL COLLECT [phone]



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1

MOTION OF CESAR CABALLERO FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS

Pursuant to Rule 37 of the Rules of this Court,
Cesar Caballero respectfully requests leave to file the
accompanying brief as amicus curiae. The Petitioners
have consented to the Historic Shingle Springs
Miwok Tribe participation in this matter. A letter
attesting to their consent has been submitted to this
Court.

The Historic Shingle Springs Miwok Tribe has
similar experiences of breaches of trust committed by
government as the Wolfchild Petitioners. Moreover,
like in the Wolfchild case, the Secretary of the
Interior failed to follow its own policy - namely the
1934 IRA to the detriment of the Historic Shingle
Springs.

The Miwok, after executing the Consumnes River
Valley Treaty, the United States Senate would never
ratify it, and the Miwok labored for decades wand-
ering the land without a reservation or an identified
parcel to live. Eventually, during the 20th century,
the federal government took action, yet disputes on
how federal agencies have handled Miwok disputes,
gives Miwok pause and concern considering the
Wolfchild v. u.s. Federal Circuit Court decision, and
the issues which were raised in the Wolfchild Petition
now before this Court.

The issues raised go well beyond the minuscule
or mundane political predominance, but to the

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2


identity of Native Americans and the relationship
supposedly established through Congressional Acts,
regulations, and federal agency actions. As with the
Mdewakanton, the Historic Shingle Springs Miwok
have continuing legal claims and disputes that re-
quire judicial resolution. But, in light of the argu-
ments and issues raised in the Wolfchild Petition, the
Historic Shingle Springs Miwok fear a loss of federal
court subject matter jurisdiction. The doctrinal shift
in trust law establishes the death knoll to avenues to
attain impartial dispositions of continuing Native
American related disputes through the federal courts.

The interests of the Historic· Shingle . Spnngs
Miwok are those of the Mdewakanton Petitioners,
and therefore accordingly, respectfully submit this
amicus brief.

Respectfully submitted,

JEFFREY D. TOCHTERMAN
LAw OFFICE OF
JEFF TOCHTERMAN
2707 K Street, Suite 3
Sacramento, CA 95816
[phone]


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i


TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iii

INTEREST OF AMICUS CURIAE AND STATE-
MENT OF IDENTITY 1

FACTUAL STATEMENT OF THE HISTORIC
SHINGLE SPRINGS MIWOK 2

SUMMARY OF ARGUMENT 9

ARGUMENT 12

1. THE FEDERAL CIRCillT COURT OF
APPEALS DECISION IN WOLFCHILD V,
UNITED STATES AND THE IDENTI-
FIED INDIAN TRUST LAW INTERPRE-
TATIVE SHIFT AND FEDERAL COURT
JURISDICTIONAL ISSUES RAISED BY
THE WOLFCHILD AND ZEPHIER PE-
TITIONERS HAVE IMMEDIATE REPER-
CUSSIONS TO SIMILARLY SITUATED
TRIBES SUCH AS THE CALIFORNIA
MIWOK TRIBE 12

A. The United States Supreme Court
Should Grant Review Because The
Secretary Of The Interior Violated The
1934 IRA When He Erroneously Al-
lowed Non-1866 Mdewakanton De-
scendents To QualifY For Trust Land ... 12


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ii


TABLE OF CONTENTS - Continued


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


1. The Federal Court Should Have Ju-
risdiction To Hear Causes Of Ac-
tions Arising Out Of IRA Violations
Notwithstanding The Split In Au-
thority As To Whether The Federal
Courts Have Jurisdiction To Hear
Such Cases 15


B. The UnIted States Supreme Court
Should Grant Review Because The
Circuit Court Erred When It Did Not
Find That The United States Asserted
the Requisite Control Over The 1886
Mdewakanton Under Mitchell II To
Impose A Fiduciary Duty On The
United States 19


1. The United States Breached Its Fiduci-
ary Duty To The 1886 Mdewakanton
By Placing Land In Trust For A
Tribe Of Indians Not Under Federal
Jurisdiction During The Passage Of
1934 IRA To The Detriment Of The
1866 Mdewakanton 24

CONCLUSION..........................................27


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iii


TABLE OF AUTHORITIES


..............................................................................................Page


CASES

California Valley Miwok Tribe v. United States,
515 F.3d 1262 (D.C.App. 2008) 7

Carcieri v. Salazar, 129 S.Ct. 1058 (2009) 12, 13

City of Sault Ste. Marie, Michigan v. Andrus,
458 F.Supp. 465 (1978) 16,17,18

Oglala Sioux Tribe of Pine Ridge Reservation,
S.D. v. Barta, 146 F.Supp. 917 (1956) 16, 18

Seminole Nation v. United States, 316 U.S. 286
(1942).........................................................................24

Smith v. Babbitt, 100 F.3d 556 (8thCir.1996) .........8, 17, 18

The Indians of California v. The United States,
98 Ct.Cl. 583 (1942) ..........................................................5

Twin Cities Chippewa Tribal Council v. Minnesota
Chippewa Tribe, 370 F.2d 529 (8thCir.1967) .....................18

United States v. Mitchell, 445 U.S. 535 (1980)
[Mitchell 1] ......................................................................9, 19, 20, 21, 22

United States v. Mitchell, 463 U.S. 206 (1983)
[Mitchell II] .........................................................................passim

United States v. Navajo Nation, 537 V.S. 488
(2003) ........................................................................19, 20

United States v. White Mountain Apache Tribe,
249 F.3d 1364 (2003) .............................................19, 21, 22, 23

Wolfchild v. United States, 559 F.3d 1228 (Fed.
Cir. 2009)...........................................................................passim


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IV


TABLE OF AUTHORITIES - Continued

...............................................................................................Page

STATUTES

Act of Aug. 19, 1890, ch. 807,26 Stat. 336 ......................21

Pub. L. No. 86-392, 74 Stat. 8 (1960 Act) .......................22

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1


INTEREST OF AMICUS CURIAE
AND STATEMENT OF IDENTITY1

The Historic Shingle Springs Miwok Tribe2
has similar experiences of breaches of trust committed by
government as the Wolfchild Petitioners. After exe-
cuting the Consumnes River Valley Treaty, which was
never ratified, the Miwok lived for decades without
land or reservation. During the 20th century, the
federal government acquired lands for the Miwok but
a controversy still surrounds federal obligations to
the Miwok. Thus, the Wolfchild v. U.S. Federal
Circuit decision, in addition to the Wolfchild Petition,
are of particular importance to the Miwok.


__________________________


1 The parties were notified ten days prior to the due date of
this brief of the intention to file. Petitioners have consented to
the filing of this brief. The Respondent, United States, was
inadvertently not contacted, but the docket does reflect its
waiver to file a response.

No counsel for a party authored this brief in whole or in
part, and no counselor party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than amicus curiae, its members, or its counsel
made a monetary contribution to its preparation or submission.

2 The ''Historic Shingle Springs Miwok Tribe" describes the
group of families who are the lineal descendants of the Native
Americans identified as the Miwok who lived' within the area
known as the Consumnes River Valley. These families had
signed the Consumnes River Valley Treaty in 1852. There is
present dispute between the Historic Shingle Springs Miwok
Tribe and others (Le., Verona Band of Homeless Indians) who
are alleged to have usurped the identity of the Historic Shingle
Springs Miwok descendants. This is an on-going dispute that
illustrates the interests for the filing of the instant amicus brief.


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2

The Wolfchild Petitioners raise similar concerns
about adjudication, through federal courts, about
legal claims that require judicial resolution. But, in
light of the arguments and issues raised in the
Wolfchild Petition, the Historic Shingle Springs
Miwok fear a loss of federal court subject matter
jurisdiction and the doctrinal shift in trust law
establishes the death knoll to avenues to attain
impartial dispositions of continuing Native American
related disputes through the federal courts.

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FACTUAL· STATEMENT OF THE
HISTORIC SHINGLE SPRINGS MIWOK


The Historic Shingle Springs Miwok Tribe is an
aboriginal tribe of El Dorado County, California. They
lived on lands of the Sierra Nevada Mountains, and
in particular, the Consumnes River Valley, which
became exploited during the 1849 Gold Rush era.
With the Gold Rush and California's entry into the
Union in 1850, Governor Peter Hardeman Burnett,
declared "open season" on California Indians: "That a
war of extermination will continue to be waged
between the two races until the Indian'race becomes
extinct .... ,,3 The devastation of violence, disease, and

____________________________

3 Burnett was elected California's first governor before
statehood in 1850 and resigned in 1851.

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3


death resulted in decimation of the California Indians
from an estimated 1848 population of 150,000 to
30,000 by 1870.4

In 1852, the Historic Shingle Springs Miwok,
seeking the protection of the federal government,
entered into the Consumnes River Treaty. The treaty
relinquished the Consumnes River Valley lands to the
United States. It would also identifY the Miwok
through a census. The treaty was never ratified. Cali-
fornia Senators successfully lobbied U.S. Senate to
deny ratification of the Consumnes River Treaty and
17 other treaties affecting California Native Ameri-
cans. The 18 treaties were referred to as the "Barbour
Treaties." In fact, the Senate took steps to remove the
Barbour Treaties from public record and precluded
Senate hearings. Removing record left the California
Indians without land, legal recognition, or protection,
while subject to the discrimination of a California
population.



____________________________________-



4 Continued discrimination against California Indians
during this same period was demonstrated through the 1850
California "Act for the Government and Protection of Indians."
Despite its title, the Act prohibited, among other things, Indians
from testifying against whites: "in no case [could] a white man
be convicted of any offense upon the testimony of an Indian or
Indians".


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4


Between the Consumnes River Treaty in 1852
and 1916, the Miwok went without lands or a res-
ervation for 53 years.5 In 1916, the United States
appropriated lands referred to as the El Dorado
Rancheria and the Historic Shingle Springs Rancheria.
The combined parcels were for the specific use of the
Historic Shingle Springs Miwok, and to be used as a
proposed reservation: "Shingle Springs Reservation."
Similarly to the Mdewakanton, tribal identities were
recorded in a census. Family members were recorded
in an 1870 census and later in the 1890 El Dorado
County census. The 30 or more surviving Miwok
tribal families were detailed in C.E. Kelsey's "1905-06
Census of Non-reservation California Indians" and
later in Census of the California Indians Jurisdiction
Act of 1928.

At about the same time, a Bureau of Indians
Affairs Field Agent, John Terrell, identified a group of
homeless people over 75 miles away in Sutter County.
He referred to them as "Sacramento-Verona Band of
Homeless Indians." He noted these homeless people
were mostly of Hawaiian and Maidu decent, but
"looked Indian." Despite not being of Miwok descent,
he invited them to live on the HisJoric Shingle
Springs Miwok's land. They never did.

In 1928, as a result of the Senate's actions for
failing to ratify, and "sealing" the Barbour Treaties,
Congress passed an act allowing the California

_____________

5 The Barbour Treaties would be "rediscovered" in 1905.


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5


Attorney General to sue the United States in the
Federal Court of Claims on behalf of all California
Native Americans. In 1942, after a 14 year lull, the
California Attorney General filed a complaint with
the Court of Claims. In The Indians of California v.
The U.S., 98 Ct.Cl. 583 (1942), the court found that
Congress failed to fulfill its promise to ratify the
Barbour Treaties. In recognition of that failure, and
the losses by California Indians, Congress sought to
make restitutions by converting the loss into an
equitable claim. The court eventually ascertained the
monetary damages to the California Indians. Id.


In a subsequent judgment, the court awarded the
Indians of California $17,053,941.98. Taking into
account what the United States would have supplied
to the Native Americans had the treaties been rati-
fied, over the 25 year period "specific appropriations
for the support, education, health, and civilization of
Indians in California" and other general disburse-
ments, a final net sum of $5,024,842.34 would be
awarded. The Indians of California v. The U.S., 102
Ct.Cl. 837 (1944). Nevertheless, the claims and agree-
ment have not affected future disputes. Meanwhile,
the United States passed the 1934 3ndian Reor-
ganization Act. Importantly, the Historic Shingle
Springs Miwok Tribe was identified as a 1934 Indian
Reorganization Act tribe.6

____________________________


6 Published in Theodore Haas' 1947 "Ten Years of Tribal
Government under the LR.A."

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[mdenney]

6


For over 60 years the Historic Shingle Springs
Miwok Tribe occupied their lands. In 1970, despite
knowing of the existence of the Historic Shingle
Springs Miwok, the Secretary of the Interior assisted
another group purporting to be, the Sacramento-
Verona Band, to file a constitution with the Bureau of
Indian Affairs. Unlike the Historic Shingle Springs
Miwok Tribe who were federally recognized as a tribe
at the time of the 1934 IRA, the Sacramento-Verona
Band were never identified as a tribe or otherwise
verified as Californian Native Americans.

Nevertheless, according to BIA records, in 1976,
during a "tribal" meeting, the Sacramento-Verona
Band voted themselves "Miwok" and changed their
name to the "Shingle Springs Band of Miwok
Indians". Despite knowing of a dispute over
who were true "Miwok" between the Historic Shingle Springs
Miwok and the Sacramento-Verona Band, the BIA
allowed and approved the Sacramento-Verona Band
to take the name and heritage of the Historic Shingle
Springs Miwok Tribe of El Dorado County to legally
enter into gaming compacts.

The Historic Shingle Springs Miwok Tribe have
repeatedly taken exception to the BIA:s actions and
that of the Sacramento-Verona Band, believing the
Sacramento-Verona Band usurped the Historic
Shingle Springs Miwok Tribe's identity, their abori-
ginal land appropriated by Congress, and thus, the
cultural identity of the Historic Shingle Springs
Miwok.


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7


The original Historic Shingle Springs Miwok
Tribe's interest in this case arises because of the
similarities experienced by the 1886 Mdewakanton.
The legal jurisprudential shift directly affects the
future of both Native American cultures and likely
many others. Although the underlying facts of the
Historic Shingle Springs Miwok dispute may appear
different, the similarities in the Federal Circuit's
decision in Wolf child u. U.S., 559 F.3d 1228 (Fed. Cir.
2009) eviscerated any previous differences.


Thus, the Wolfchild Petitioners have focused
upon issues that are not hypothetical situations, but
issues with instant implications - to the Miwok and
likely other Native Americans. The federal govern-
ment had a duty to the Shingle Springs Miwok
Indians under the principles expressed in Mitchell II.
Moreover, similar to the Wolfchild case, the Secretary
of the Interior breached his duty to the Shingle
Springs Miwok by allowing another group of Indians
to misappropriate the lands and the benefits that
rightly belonged to the Shingle Springs Miwok
Indians.


In addition, the legal uncertainties of trust law
as depicted in the Federal Circuit decision will deter
remediation efforts against the United States re-
garding allegations of the breach of federal obliga-
tions. California Valley Miwok Tribe u. U.S., 515 F.3d
1262 (D.C.App. 2008) again presents a problem in
court that the Historic Shingle Springs Miwok must'
face. Although the action arose in a different factual
setting, the California Valley Miwok Tribe tried to


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8


enforce the obligations of the United States upon the
"rightful" tribe through means of a new constitution.
The BIA described the issue as one related to
membership. The Eighth Circuit Court of Appeals
agreed.

Like the Eighth Circuit decision in Smith v.
Babbitt, 100 F.3d 556 (8thCir.1996), the BIA asserted
in California Valley Miwok Tribe that the issue
related to "membership." But, the underlying issues
in both cases went well beyond "membership."
Thus, the Miwoks' claims were jettisoned like the
Mdewakanton in Smith. The failure of those
attempts, in conjunction with the recent Federal
. Circuit's Wolfchild decision, may result in a lack of
forum for the original Historic Shingle Springs
Miwok Tribe to raise their claims from their present
dispute with the United States and the Sacramento-
Verona Band of Homeless Indians. A jurisdictional
conundrum presently faced by the Wolfchild
Mdewakanton, compounded with the doctrinal shift
of the Federal Circuit in trust law, results in the
Historic Shingle Springs Miwok Tribe facing similar
legal difficulties and consequences. And, if true for
the Miwok and the Mdewakanton, it will be true for
other Native Americans and tribes.

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9


SUMMARY OF THE ARGUMENT

Like the Mdewakanton, the Historic Shingle
Springs Miwok are on the horns of a dilemma. Each
has claims and disputes to resolve, and each require
an impartial forum for resolution. In particular, when
it is believed the United States has violated its own
policy to a specific group of Native Americans, the
victims must be assured that they will not be turned
away at the courthouse steps for lack of subject
matter jurisdiction. Furthermore, it is equally im-
portant for Native Americans to know that the
governing law of trusts and trust terminations will be
followed by the lower courts. The. concern of the
Miwok, here, is that the Federal Circuit court did not
apply trust law jurisprudence as set out in Mitchell I
and its prodigy. This can affect the Miwok as they
have similar complaints in regard to a breach of duty.
With that said, what rights remain for Native Ameri-
cans when Congress or federal agencies cause harm
or breach obligations to Native Americans?


The Secretary of the Interior violated its own
federal policy, and as a result, like the Mdewakanton,
the Historic Shingle Springs Miwok, are left without
their due appropriations intended by Co'ngress. In the
Mdewakanton case, land was wrongfully placed in
trust to members of Indian tribes largely outside of
the Mdewakantons. In fact, the Secretary of Interior
did so with knowledge of the indiscretion by placing
lands in trust for outside groups the Secretary
violated the 1934 IRA and as a result of his violation
the Mdewakanton have been deprived of their land.

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10


Similarly, a chain of events of violation of federal
policy by the Secretary has left the Historic Shingle
Springs Miwok without their appropriated lands.
Again we see this same pattern of failing to even
allow for an Interior Appeal repeated in the story of
the Historic Shingle Springs Miwok. From Wolfchild
we see that the Secretary of Interior communicated
such knowledge and his lack of efforts to correct the
matter. In the case of the Historic Shingle Springs
Miwok the Secretary simply refuses to address
the matter though letters with evidence have been
sent to the' current administration, Secretary, Ken
Salazar, Assistant Secretary, Larry Echohawk, and
Director of the BIA, Jerry Gidner. As with the 1886
Mdewakantons the United States further breached
its duty to the Historic Shingle Springs Miwok by
violating its own policy outlined in the 1934 IRA. The
Secretary of Interior failed to properly appropriate
the land and appointed assignees that were not
members of the Historic Shingle Springs Miwok. With
nonmembers holding majority control over the
intended beneficiaries, their needs took precedent to
the detriment of the Miwok.


In addition to the adversity in the Qircuit Court,
the Supreme Court should reverse the prior court's
decision in Wolf child because the United States
knowingly breached its fiduciary duty to the 1886
Mdewakanton under the care of the Secretary of
Interior. This is an important matter of fiduciary
responsibility at the federal level that also affects the


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11


California Indians, specifically the Historic Shingle
Springs Miwok.

Like the 1886 Mdewakanton, the United States
government placed land reserved for the Historic
Shingle Springs Miwok to an outside group of Indians
whose 5 families excluded the 30 or more families of
Historic Shingle Springs Miwok.Mitchell II asserts
that the United States took requisite control over the
1886 Mdewakantons and with requisite control came
fiduciary responsibility. By placing land, purchased
with funding appropriated for the Historic Shingle
Springs Miwok in trust to an outside band of Indians,
the fiduciary duty resulting from requisite control
was breached by the United States, similarly to the
1886 Mdewakantons.


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12


ARGUMENT


I. THE FEDERAL CIRCillT COURT OF AP-
PEALS DECISION IN WOLFCHILD V; U.S.
AND ·THE IDENTIFIED INDIAN TRUST
LAW INTERPRETATIVE SIDFT AND FED-
ERAL COURT JURISDICTIONAL ISSUES
RAISED BY THE WOLFCHILD AND
ZEPHIER PETITIONERS HAVE IMMEDI-
ATE REPERCUSSIONS TO SIMILARLY
SITUATED TRffiES SUCH AS THE CALI-
FORNIA MIWOK TRIBE


A. THE United States Supreme Court Should
Grant Review Because The Secretary
Of The Interior Violated The 1934 IRA
When He Erroneously Allowed Non-1866
Mdewakanton Descendents To Qualify
For Trust Land


The Indian Reorganization Act (IRA) authorizes
. the Secretary of the Interior to acquire land and hold
it in trust for the purpose of providing land for the
Indians. Under IRA, "Indian" is defined as "all
persons of Indian descent who are members of any
recognized tribe" under federal jurisdiction at the
time of the statute's enactment. Carcied v. Salazar,
129 S.Ct. 1058 (2009). Thus, IRA ''limits the Secre-
tary's authority to taking land into trust for the
purpose of providing land to members of a tribe that
was under federal jurisdiction when the IRA was
enacted in June 1934." Id. Furthermore, under IRA,
"tribe" shall be construed to refer to any Indian tribe,
organized band, pueblo, or other Indians residing on


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13


one reservation. Id. at 1059. Thus, the Secretary of
the Interior is limited to hold land in trust for those
Indians that meet the IRA requirement - namely that
they are federally recognized at the time of its
enactment and therefore the Secretary is charged
with the duty to ascertain which Indians meet this
requirement. Id.


In the Wolfchild case, the 1866 lands were
bought by funds provided by the Appropriation Acts.
Thus, the 1866 lands were to be used exclusively by
the 1886 Mdewakantons as conditioned by Congress'
expressed intent. Id~ By the time the 1934 IRA came'
along, the 1866 lands were still only available to the
1886 Mdewakantons under the Secretary's procedure
of ascertaining 1866 Mdewakantons. However, three
communities, which were made of largely non-lineal
descendants, surfaced all of which were residing
erroneously on the 1866 lands. The Secretary's letter
made it clear that "the Department knew that many
non-1886 Mdewakanton were part of the SMSC base
roll used to determine voters to approve the 1969
SMSC Constitution and, consequently, were bene-
fitting from SMSC membership to the exclusion of the
1886 Mdewakanton." Wolfchild v. U.S.,.559 F.3d 1228
(Fed. Cir. 2009).


The communities eventually sought land in trust
under IRA. Despite predominance of non-members,
the Secretary of the Interior approved their Con-
stitutions. As a result of the Secretary's misappro-
priation and lack of intervention, land was put in
trust for each community. Land that was put into

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14


trust for the non-member communities was bought
with appropriations intended to be used exclusively
for the 1866 Mdewakantons. Thus, not only did the
Secretary fail to protect his beneficiaries from mis-
appropriation of their lands to unqualified Native
Americans and in doing so allowed them to usurp ben-
efits intended exclusively for the 1866 Mdewakantons,
but the Secretary actually played a major role in
placing land in trust for members of unqualified
groups. Indeed, Wolfchild outlines the actions, or lack
thereof, applied by the Secretary of Interior to the
detriment of the 1886 Mdewakantons,


"Contemporaneous documents make clear
that the Secretary of the Interior considered
himself bound by the terms of the statutes to
reserve the usage of the 1886 lands for
members of the particular beneficiary class
(the 264 individuals determined by a con-
temporaneous Interior Department census to
constitute the 1886 Mdewakantons), and
that he did so by selecting assignees from
within that group. Later, in the absence of
any congressional direction as to the ult-
imate disposition of ownership interests in
the lands, the Secretary selected successor
assignees from the instances, the Secretary
held the property for the use and benefit of
individuals selected from a defined class".


Wolfchild v. U.S., 559 F.3d 1228 (Fed. Cir. 2009).


Moreover, the Communities did not qualify for
land under IRA as they did not meet the IRA


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15


requirements namely; they were not a federally
recognized tribe of Indians under the IRA because
they were neither a tribe, nor an Indian residing on a
reservation at the time outlined in the policies of the
IRA. Since they were never entitled to be on the 1866
lands unless they were a lineal" descendent of the
1886 lands their lack of descendancy prevented them
from having a legitimate right to taking land in trust.


Therefore, the Secretary violated the Department
of Interior's own policy set forth in the IRA. As a
result of that violation, the 1866 Mdewakantons are
left without the land that was bought with funds that
were appropriated to their exclusive use.


Therefore, we ask this Court to address the
IRA violation which has left the deserving 1866
Mdewakantons without their land purchased with
their appropriations and set aside for their exclusive
use.



1. The Federal Court Should Have Juris-
diction To Hear Causes Of Actions
Arising Out Of IRA Violations Not-
withstanding That The~e Is A Split
In Authority As To Whether The
Federal Courts Have Jurisdiction To
Hear Such Cases


Federal court history provides a variety of cases
in which federal jmisdiction has, and has not been
found for cases arising under the IRA. Many courts
have held that if there is a violation of federal policy


====================================================


16


- namely the 1934 IRA, then there should be federal
court jurisdiction. However, some courts had been
reluctant to find federal court jurisdiction under IRA
because they reasoned that IRA was enacted to
bolster independent sovereignty in Indian Country.


One example of the wealth of cases holding that
subject matter jurisdiction exists for violations of the
IRA is Oglala Sioux Tribe of Pine Ridge Reservation,
S.D. v. Barta. In that case, an action was brought by
the tribe that was organized under the 1934 IRA to
collect taxes levied by the tribe upon nonmembers
leasing tribal land. Oglala Sioux Tribe of Pine Ridge
Reservation, S.D. v. Barta, 146 F.Supp. 917 (1956).
Notwithstanding the defendants' argument that the
federal court did not have subject matter jurisdiction
to hear the case, the federal court held that there was
subject matter jurisdiction. Id. The court reasoned
that the tribe "function[edJ" under the provision of
the 1934 IRA and that the cause of action flowed
directly from the implementation of IRA - a federal
statutory scheme; and thus, the federal court had
subject matter jurisdiction to hear the controversy in
question. Id.


Another case where the federal 'court found
subject matter jurisdiction is City of Sault Ste. Marie,
Michigan v. Andrus. In that case an action was
brought by the City when a group of Indians claiming
to be a federally recognized tribe acquired land in the
area surrounding the City and then conveyed that
land in trust to the United States pursuant to the
IRA. City of Sault St. Marie, Michigan v. Andrus,


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17


458 F.Supp. 465 (1978). Defendants moved to dismiss
arguing that there was no jurisdiction. Id. In holding
that there was jurisdiction, the federal court reasoned
that the cause of action arose under the IRA, which in
turn meant that a resolution of the controversy would
involve determining whether the federal defendants
had violated the IRA; and therefore, the federal court
had jurisdiction over the case. Id.


Although federal jurisdiction has been found in
many cases, oddly enough there are many cases
where the federal courts have dismissed cases for
lack of jurisdiction based on similar facts.


In Smith u. Babbitt, the Mdewakantons had filed
suit due to a misappropriation of gaming funds by the
Secretary of Interior. Smith u. Babbit, 100 F.3d 556
(8thCir.1996). Jurisdiction appeared proper because
the Secretary of Interior, an agent of the federal
government, participated in the "scheme" preventing
the proper allocation of gaming funds. Id. However,
the court held that the federal court did not have
subject matter jurisdiction. It reasoned that despite
that the Secretary was a member of the federal
government only violations of the tribal, Constitution
were committed. Id. The court explained that "The
facts of this case further show that this dispute needs
to be resolved at the tribal level" since it was the
tribal Constitution that was the subject of violation;
and thus, should be settled by tribal officials. Id.
However, the court pointed out that "we find that
these allegations are merely attempts to move this


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18


dispute, over which this court would not otherwise
have jurisdiction, into federal court," and thus really
did not address whether there was an IRA violation;
and, therefore failed to address whether the federal
court would have jurisdiction if the IRA was violated.
Id.


Another case where the federal court did not find
subject matter jurisdiction is Twin Cities Chippewa
Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d
529 (SthCir.1967). In that case, a suit was filed by
tribal council in an effort to invalidate a tribal
election. [d. The court held that it did not have
jurisdiction to· hear the case because the dispute was
purely a tribal matter. [d. The court reasoned that
the dispute should be handled by tribal officials
according to their tribal constitution notwithstanding
the Secretary's role in reviewing and ratifying
decisions made by tribal elections under IRA. Id. The
court explained, "we can think of no better example of
a tribe's local governmental procedure than that of
regulating a tribal election amending the tribe's
constitution and bylaws, the very framework of the
local government." Id.


Thus, in both Babbit and Twin Cities, the federal
courts were presented with complaints under IRA and
refused to hear the cases based on lack of subject
matter jurisdiction. However, in Oglala Sioux Tribe
and City of Sault Ste. Marie the federal courts were
presented with causes of action flowing from the IRA
and found subject matter jurisdiction did in fact exist.
Therefore, we ask this Court to grant review in the


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19


Wolfchild case so that it may settle the incon-
sistencies in the lower courts regarding whether
federal courts have subject matter jurisdiction to hear
causes of actions resulting from violations of the IRA.



B. The United States Supreme Court Should
Grant Review Because The Circuit Court
Erred When It Did Not Find That The
United States Asserted The Requisite
Control Over The 1886 Mdewakanton
Under Mitchell II To Impose A Fidu-
ciary Duty On The United States


A general trust relationship exists between the
United States and the Indian people. U.s. v. Mitchell,
445 U.S. 535 (1980). This general trust relationship
alone is not sufficient to impose special duties on the
United States for the benefit of the Indian people.
U.S. v. Navajo Nation, 537 U.S. 488 (2003). However,
the United States will be held to a fiduciary duty
where a relevant statute or regulation grants the
United States with control over Indian resources or
land. U.s. v. Mitchell, 463 U.S. 206 (1983).


The requisite control under Mitchel~ II has been
found where the United States had full 'responsibility
to manage Indian resources and land for the Indian
benefit. Id. at 2972. Moreover, adequate control
triggers fiduciary duties where the United States has
exclusive control of a property held in trust for the
Indian people. u.s. v. White Mountain, 249 F.3d 1364.
" Once the "duty-imposing statutory or regulatory


=====================================================

20


prescription" has been identified, and the duty has
been breached, availability of money damages may be
inferred. U.S. v. Navajo Nation, 537 U.S. 488 (2003).


In Mitchell I, the Quinault Tribe alleged that the
United States had breached its fiduciary duty to the
tribe under the Indian General Allotment Act of 1887
(hereafter GAA) by mismanaging the forest lands
located within the land that was allotted to its tribal
members. In holding that the GAA did not create
private rights of action, this Court reasoned that the
language, history, and purpose must be taken into
consideration. It pointed out that Congress' goal in
holding the land in trust was "not because it wished
the Government to control use of the land ... , but
simply because it wished to prevent alienation of the
land ... " U.S. v. Mitchell I, 445 U.S. at 536.


In Mitchell II, however the Supreme Court did
find a breach of a fiduciary duty owed to the same
tribe, not under the GAA, but under a different set
of statutes and regulations. Specifically, the timber
management statutes and other statutes that "em-
powered the Secretary to sell timber on unallotted
lands and apply them to the benefits of ~he Indians,"
as well as the government's detailed regulations
regarding its responsibilities to "[manage] the Indian
forests so as to obtain the greatest revenue for the
Indians consistent with a proper protection and
improvement of the forests" were held by this Court
to give rise to a fiduciary duty to the tribe.


======================================================

[mdenney]

21


The Appropriation Acts in the Wolfchild case fall
neatly into the holding of Mitchell II; and, thus are
not like the general duty Acts analyzed in Mitchell I,
because like the Mitchell II statutes and regulations,
the Allotment Acts in the Wolfchild case required the
government to make life altering choices for a very
specific group of loyal Indians so they could receive
the best use of the appropriated benefits. Indeed, the
Secretary of the Interior had plenary power to expend
the appropriated funds " ... as in his judgment as he
may think, best, for such lands, agriculture imple-
ments, building seeds, cattle, horses, food, or clothing
that may be deemed best, in the cases of each of the
Indians or families thereof." 1890 Act, Stat. at 349.
Moreover, Congress' goal in appropriating funds for
the 1886 Mdewakanton Indians was to provide for a
loyal group of impoverished Indians that were forced
to sever their ties from their tribe. In other words,
like the duties imposed on the Secretary in Mitchell
II, Congress intended the Secretary to make im-
portant decisions on behalf of the 1886 Mdewakanton
Indians - decisions that are normally left to a manager or a
guardian. Thus, the Secretary owed the
1886 Mdewakanton a fiduciary duty ~der Mitchell
II, and therefore, the Federal Circuit erred when it
held that the Secretary did not owe the 1886
Mdewakanton such a duty.


Another case where this Court found that the
Secretary owed a tribe of Indians a fiduciary duty is
U.S. v. White Mountain Apache Tribe, 249 F.3d 1364
(2003). In White Mountain Apache Tribe, land was


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22


held in trust by the United States for the tribe subject
"to the right of the Secretary of the Interior to use any
part of the land for improvements." Pub. L. No. 86-
392, 74 Stat. 8 (1960 Act). The United States retained
control over several buildings located on the trust
land. U.S. v. White Mountain Apache Tribe, 249 F.3d
at 1377. The tribe brought suit against the United
States complaining that the United States failed to
maintain the property it had physical control over, in
breach of its fiduciary duty owed to the tribe. Id.


The lower court ruled that the statute in the
White Mountain Apache Tribe case was like the Act in
Mitchell" I in that the statute created nothing more
than a "bare trust" - a relationship that did not
trigger fiduciary duties. Id. The Federal Circuit
reversed and remanded, holding that the Act created
an implied duty to act reasonably to ensure that the
utilized property would be maintained, and thus
created fiduciary duties. Id. This Court affirmed the
Federal Circuit relying on its previous decisions in
Mitchell I and Mitchell II. Id.


Applying the two Mitchell cases to the facts of the
White Mountain Apache Tribe case, this Court
explained that unlike the Mitchell I case, where the
Act gave the government no functional obligation to
manage an Indian resource, the Act in White Moun-
tain Apache Tribe went beyond a bare trust and
imposed fiduciary duties on the Secretary since the
Act "invested the United States with discretionary


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23


authority" to exclusively control portions of the trust
land. Id. at 1378.


The Wolfchild case is similar to the White
Mountain Apache Tribe case in that the United States
enjoyed exclusive control over the tribe's resources.
In White Mountain Apache Tribe, the United States
had the right to exclusive physical control over the
buildings in trust for the tribe. The exclusive control
over the tribe's resources in the Wolfchild case
(namely, appropriated funds for the use of the 1886
Mdewakanton) was not a physical control like it was
in the White Mountain Apache Tribe case, but
nevertheless was equally as exclusive since the
appropriated funds were to be used as the Secretary
saw fit. Thus, the Secretary had exclusive control
over the funds - choosing how he would spend them
and consequently, similar to the White Mountain
Apache Tribe case should be bound to act reasonably
and in the best interest of the tribe - the same utmost
duty that is imposed on a fiduciary. Thus, the Court
of Appeal erred in finding that the Secretary did not
owe the 1886 Mdewakanton a fiduciary duty and thus
should be reversed under White Mountain Apache
. Tribe.


Thus, both under the Mitchell II and White
Mountain Apache Tribe, the Acts in the Wolfchild case
impose a fiduciary duty on the United States for the
benefit of the Mdewakanton; and thus, we respect-
fully ask that this Court grant review.


=====================================================

24


1. The United States Breached Its Fiduci-
ary Duty To The 1886 Mdewakanton
By Placing Land In Trust For A Tribe
Of Indians Not Under Federal Ju-
risdiction During The Passage Of
1934 IRA To The Detriment Of The
1866 Mdewakanton


When a fiduciary relationship is found, the law
forbids the fiducIary from acting in any manner
adverse or contrary to the interests of the beneficiary.
The beneficiary is entitled to the best efforts of the
fiduciary on his behalf and the fiduciary must
exercise all of the skill, care and diligence at his
disposal when acting on behalf of the client. Id. Thus,
"Many forms of conduct permissible in a workaday
world for those acting at arm's length are forbidden to
those bound by fiduciary ties." Seminole Nation v.
U.S., 316 U.S. 286 (1942). A trustee is held to
something stricter than the morals of the market
place. Not honesty alone, but the punctilio of an
honor the most sensitive, is then the standard of
behavior.ld.


In the Wolfchild case, the United States
purchased lands with funds ft-om the Appropriation
Acts that were intended to be used exclusively for the
benefit of a band of Indians that severed their ties to
their tribe in order to help the United States in the
1862 Sioux uprising. These loyal Indians became
recognized as the 1886 Mdewakanton - a loyal band
of Indians that Congress respected as helping to
rescue the whites and deserving of support. With this


===================================================


25


goal in mind, Congress enacted the Appropriation
Acts in 1888, 1889, and 1890 - with the expressed
condition that the appropriations would exclusively
benefit the 1886 Mdewakanton. As a result of the
appropriations, the Secretary of the Interior pur-
chased the land at issue in the Wolfchild case
(hereafter "1886 lands") for the sole benefit of the
1886 Mdewakanton.


True to his duty, the Secretary of the Interior
went through painstaking procedure to ascertain
whether an individual Indian was a qualifying 1886
Mdewakanton before allowing him to reside on the
1866 Lands. Wolfchild v. U.S., 559 F.3d at 1243.
The Secretary's intricate care for his beneficiaries
went on for over 90 years. However, with time, the
Secretary's actions became knowingly less protective
of the 1886 Mdewakantons' benefits. Indeed, in a
senate resolution he initially stated "Land assign-
ments on 1886 Mdewakanton lands will be issued
only to persons who can prove descendency from the
1886 Mdewakanton residents and who are certified
as eligible by the Branch of Tribal Operation." Yet he
went on to say "However, no actions will be taken at
this time to cancel or disturb any existing assign-
ments as a result of this policy statement." Id.


Nevertheless, as a fiduciary, the Secretary was
obligated to protect his beneficiary by taking the
utmost care to look after the groups' benefits. Instead,
the Secretary engaged in an indiscretion that by 1980
became fatal. to the 1886 Mdewakantons' benefits.
What was once land purchased for the sole use of the


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26


1866 Mdewakantons, now has become trust land for a
group of Native Americans that are comprised of less
than the ten percent of the 1866 Mdewakanton. Id.
Mind you, the Secretary had complete discretion
of how to use the appropriations as long as they
were being used for the sole benefit of the 1886
Mdewakanton. Thus, his mismanagement of the
appropriations constitutes a fundamental breach that
has left many of the 1886 Mdewakantons without the
ability to reside on that land that was expressly set
aside for th(;:!ir exclusive use.


Thus, we ask this Court to grant review of this
case so that it can determine that the United States
did owe the 1866 Mdewakantons a fiduciary duty
that was breached when it failed to prevent nonlinear
descendants to reside on the 1866 lands.

-----+-----


=====================================================

27


CONCLUSION


The Secretary of the Interior owed the 1866
Mdewakanton a fiduciary duty under controlling case
law. The Secretary was responsible for maintaining
and distributing lands, but instead of preserv-
ing them solely for the 1866 Mdewakanton, he put
much of it in trust to people outside of the 1886
Mdewakanton. Thus, the Secretary breached its duty
to the 1866 Mdewakanton. Further, the Secretary's
actions violated the 1934 IRA. Therefore, we ask this
Court to address both the Secretary's breach of duty
to the Mdewakanton and violation of the 1934 IRA.


Respectfully submitted,

JEFFREY D. TOCHTERMAN

LAw OFFICES OF

JEFF D. TOCHTERMAN
2707 K Street, Suite 3
Sacramento, CA 95816
[phone]