Red Lake & Pembina Bands v. TURTLE MT. BAND OF CHIPPEWA IND.

• Decision Date: 17 December 1965
• Docket Number: Appeal No. 7-64.
• Citation: 173 Ct. Cl. 928,355 F.2d 936
• Parties: RED LAKE AND PEMBINA BANDS et al., Jay H. Hoag and Associate Attorneys for Petitioners in Docket 18-A v. TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS, Docket 113, Little Shell Band of Chippewa Indians, Docket 191, and the United States. LITTLE SHELL BAND OF CHIPPEWA INDIANS et al. v. RED LAKE, PEMBINA AND WHITE EARTH BANDS, et al., Turtle Mountain Band of Chippewa Indians and the United States.
• Court: U.S. Claims Court

173 Ct. Cl. 928, 355 F.2d 936 (1965)

RED LAKE AND PEMBINA BANDS et al., Jay H. Hoag and Associate Attorneys for Petitioners in Docket 18-A v. TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS, Docket 113, Little Shell Band of Chippewa Indians, Docket 191, and the United States.

LITTLE SHELL BAND OF CHIPPEWA INDIANS et al. v. RED LAKE, PEMBINA AND WHITE EARTH BANDS, et al., Turtle Mountain Band of Chippewa Indians and the United States.

Appeal No. 7-64.

United States Court of Claims.

December 17, 1965.

Marvin J. Sonosky, Washington, D. C., for appellants Red Lake and Pembina Bands, et al., Jay H. Hoag and associate attorneys for petitioners in Docket 18-A; Jay H. Hoag, Duluth, Minn., atty. of record; Sonosky & White, Washington, D. C., of counsel.

Glen A. Wilkinson, Washington, D. C., atty. of record, for appellees Turtle Mountain Band and Docket 113 attorneys; Stormon & Stormon, Rolla, N. D., and Frances L. Horn, Washington, D. C., of counsel.

Robert J. Garrett, Chicago, Ill., for appellants Little Shell Band of Chippewa Indians and others in Docket 191; Lawrence C. Mills, Chicago, Ill., atty. of record; Mills & Garrett, Chicago, Ill., of counsel.

Ralph A. Barney, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for appellee United States.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DAVIS, Judge.

The Red Lake and Pembina Bands of Indians sought an award, in Indian Claims Commission Docket No. 18-A, for lands in North Dakota and Minnesota ceded to the United States by the Treaty of October 2, 1863, 13 Stat. 667 (Royce Area 445). The Turtle Mountain and Little Shell Bands — which are conceded to have been constituent parts of the Pembina Band — sought compensation under the Act of April 21, 1904, 33 Stat. 189, 194-96 (in Ind.Cl.Comm.Docket No. 113 for Turtle Mountain and in Docket No. 191 for Little Shell) for certain lands which partially overlapped with the area involved in Docket No. 18-A. The Turtle Mountain and Little Shell Bands each stipulated with the plaintiffs in Docket No. 18-A that Docket Nos. 113 and 191 could be consolidated for trial with Docket No. 18-A to the extent of this overlap. The Commission confirmed that understanding (after the trial had been had) and in 1958 entered an award (under a caption including the three docket numbers) for the Red Lake and Pembina Bands. See 6 Ind.Cl.Comm. 249; 9 Ind.Cl.Comm. 315, 457. This court affirmed, but directed that (a) the award should go to the tribal entities rather than the descendants of the bands as constituted in 1863, and (b) the total sum should be divided so that two-thirds would go to the Red Lakes and one-third to the Pembinas. Red Lake, Pembina and White Earth Bands v. United States, 164 Ct.Cl. 389 (January 1964) (Appeal No. 7-62).

On remand, the Commission modified its findings and order to accord with its view of this court's mandate. The Commission also made an award of attorneys' fees. The two current appeals flow from those new orders. The first challenge is by the Red Lake and Pembina Bands and their attorneys to the part of the fee-order which includes the lawyers for the Little Shell and Turtle Mountain Bands in the listing of counsel entitled to share in the attorneys' award allowable to the Pembina Band. The other appeal is by the Little Shell Band from the amended award naming the Pembina Band as the recipient of part of the total award.¹ We discuss these two appeals separately, reversing in the fee appeal and affirming in the other.

I ATTORNEYS' FEES

The final award to the Pembina Band was $237,127.82. In August 1964, under captions citing Dockets 18-A, 113, and 191, the Commission allowed the statutory maximum, ten percent of this sum, for attorneys' fees; made a general finding that "the attorneys in the subject cases" are entitled to receive the full ten percent; and lumped together (without apportionment) all the attorneys (or their executors or heirs) in all three dockets as entitled to the fee of $23,712.78.² There is no attack on the amount of the fee, but the attorneys in Docket No. 18-A (and their client) challenge the award insofar as it includes and designates the attorneys in Dockets No. 113 and 191. It is said that those attorneys are entitled to no part of the fee allocated to the Pembina lawyers because they are not counsel for the plaintiffs in Docket No. 18-A and did not contribute to the award which the Commission made for the Pembinas.

We need not be concerned with the attorneys in Docket No. 113 (representing the Turtle Mountain Band); they have explicitly disclaimed, before the Commission and in this court, any right to any of the fee. But the attorney for the Little Shell Band (in Docket No. 191) insists on his legal right to participate, though he expresses a willingness to be satisfied with whatever share of the attorneys in Docket No. 18-A see fit to grant him. For its part, the Government moves to dismiss the appeal on the ground that this court has no jurisdiction over the dispute.

Section 15 of the Indian Claims Commission Act, 25 U.S.C. § 70n, embodies the Congressional directives with respect to attorneys' fees:

Each such tribe, band, or other identifiable group of Indians may retain to represent its interests in the presentation of claims before the Commission an attorney or attorneys at law, of its own selection, whose practice before the Commission shall be regulated by its adopted procedure. The fees of such attorney or attorneys for all services rendered in prosecuting the claim in question, whether before the Commission or otherwise, shall, unless the amount of such fees is stipulated in the approved contract between the attorney or attorneys and the claimant, be fixed by the Commission at such amount as the Commission, in accordance with standards obtaining for prosecuting similar contingent claims in courts of law, finds to be adequate compensation for services rendered and results obtained, considering the contingent nature of the case, plus all reasonable expenses incurred in the prosecution of the claim; but the amount so fixed by the Commission, exclusive of reimbursements for actual expenses, shall not exceed 10 per centum of the amount recovered in any case. * * *

This provision declares, in effect, that no attorney can be paid by a Commission-fixed fee unless he has rendered services promoting the particular claim for which recovery has been allowed. The fees are specifically characterized as being "for all services rendered in prosecuting the claim in question", and the Commission is told to set an amount which is "adequate compensation for services rendered and results obtained" (emphasis added). Congress thus made the performance of services a sine qua non for compensation. Neither the Commission nor this court has jurisdiction to apportion an award among the attorneys shown to be entitled to one. Chickasaw Nation v. United States, 121 Ct.Cl. 41, 44-45, 47 (1951). But there plainly is jurisdiction in the Commission to determine whether an attorney applying for a fee has performed any "services" "in prosecuting the claim in question"; under the Act, that is the minimum badge of entitlement which the applicant must display.³

In this light we consider the Government's motion to dismiss the appeal. One of appellants' claims is that Lawrence C. Mills, Esq., counsel for the Little Shell Band, rendered no services in prosecuting the claim which resulted in the judgment of $237,127.82 for the Pembina Band. If that contention is correct, Mr. Mills was barred by Section 15 from sharing in the fee-award and should not have been included in the Commission's fee-order. This is not a question of apportionment among lawyers each of whom is qualified under the statute for a fee, but of Mr. Mills' basic statutory entitlement to any consideration at all. That precise issue the Commission was required, and had authority, to decide.

Since this issue of statutory entitlement was within the Commission's province, this court likewise has jurisdiction to delve into it. Section 20(b) of the Claims Commission Act, 25 U.S.C. § 70s(b), gives the court jurisdiction to review any "final determination" of the Commission, as well as certain interlocutory determinations of liability. The United States argues that the only final determinations subject to review are those deciding the merits of an Indian entity's claim. But the Act does not say so in terms, and we know of no reason why the phrase "final determination" should be so restricted, or should be given less than its full meaning. The Act nowhere suggests that certain areas of Commission decision are to be left without appellate review and guidance; on the contrary, Section 20(a) broadly empowers the Commission to certify to this court "any definite and distinct questions of law concerning which instructions are desired for the proper disposition of the claim." Nor does the legislative history intimate that this court's power to review should cover fewer subjects than the Commission's power to decide. And from the beginning the practice of the court has been to consider issues of all types which the Commission has resolved in the course of a proceeding (if the requisite finality has been present).⁴ Jurisdiction to pass upon an appeal must, of course, not be confused with the scope of review. This court's right to overturn a Commission determination is limited by the statutory standards, but there is no subject-matter exception to the court's jurisdiction to hear and consider challenges to Commission rulings.

We have no doubt, moreover, that the Commission's fee-award in this case has the requisite finality. Special findings of fact were rendered on attorneys' fees, as was a final order allowing them compensation. On that subject nothing was left for further consideration; and the fee-award was severed and severable from the judgment on the merits for the Pembinas. The disposition of this...