Sisseton-Wahpeton Sioux Tribe, of Lake Traverse Indian Reservation, North Dakota and South Dakota v. U.S.
| Decision Date | 02 February 1990 |
| Docket Number | No. 88-3922,SISSETON-WAHPETON,88-3922 |
| Citation | 895 F.2d 588 |
| Parties | SIOUX TRIBE, OF the LAKE TRAVERSE INDIAN RESERVATION, NORTH DAKOTA AND SOUTH DAKOTA, Devils Lake Sioux Tribe, of the Devils Lake Sioux Reservation, North Dakota; Sisseton-Wahpeton Sioux Council, of the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, Montana, Plaintiffs-Appellants, v. UNITED STATES of America, Donald P. Hodel, Secretary of the Interior; James A. Baker, Secretary of the Treasury, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bertram E. Hirsch, Floral Park, N.Y., for plaintiffs-appellants.
M. Alice Thurston, Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Montana.
Before BROWNING, SCHROEDER and FLETCHER, Circuit Judges.
The Sisseton-Wahpeton Sioux Tribe, the Devils Lake Sioux Tribe, and the Sisseton-Wahpeton Sioux Council of the Assiniboine and Sioux Tribes ("the Tribes") appeal from the district court's dismissal of their suit, 686 F.Supp. 831, which the court found was barred by the six year statute of limitations imposed by 28 U.S.C. Sec. 2401(a) on all civil actions against the United States. The Tribes brought suit in 1987 to challenge the 1972 law that established the system for distributing a judgment entered by the Indian Claims Commission in 1967. We affirm the district court's dismissal.
The underlying facts are not in dispute. In the 1860's, the United States government took 27 million acres of land in Iowa, Minnesota, and South Dakota from the Sisseton-Wahpeton Tribes and subsequently failed to satisfy the terms of the treaties. The Tribes brought claims against the federal government around 1950 under Section 2 of the Indian Claims Commission Act, 25 U.S.C. Sec. 70. 1 The Tribes and the government eventually reached a compromise settlement, which was filed with Congress, and thereby became final, in July 1967. Sisseton and Wahpeton Bands or Tribes v. United States, 18 Ind.Cl.Comm. 526-1 (1967). Following the usual procedure in these actions, in 1968 Congress appropriated the money to satisfy the settlement and deposited the money in a U.S. Treasury account.
In 1972, Congress enacted a plan for distributing the money. 25 U.S.C. Secs. 1300d-3, 1300d-4. This plan apportioned the judgment fund according to "reservation residence and other residence shown on the 1909 McLaughlin annuity roll" and distributed approximately 22% of the fund to the Devils Lake Sioux, 43% to the Sisseton-Wahpeton Sioux, 10% to Assiniboine and Sioux Tribe, and 25% to "[a]ll other Sisseton and Wahpeton Sioux." These latter "lineal descendants" are persons who are not eligible for membership in any of the tribes, but who can trace their lineal ancestry to someone who was a tribal In April 1987, the Tribes sued to block payment to the lineal descendants and to require the United States to pay their share instead to the Tribes. The Complaint listed eight claims for relief, including various due process violations, unconstitutional taking, breach of contract, and breach of the 1968 Appropriation Act. The District Court for the District of Montana preliminarily enjoined the government from disbursing any funds. The Court noted that the complaint raised serious questions, but criticized as "inexcusable" the Tribes' lack of diligence in bringing the action. In its final order, the Court ruled that all of the Tribes' claims are time-barred by 28 U.S.C. Sec. 2401(a), rejecting their argument that the statute of limitations either is inapplicable or was tolled. The court found that it was irrelevant whether the claims were phrased in terms of a breach of contract, a breach of trust responsibility, or a constitutional violation, since under any theory of a violation of the Tribes' rights, the cause of action stemmed from and accrued at the time the 1972 Distribution Act was passed. The district court made no determination of the merits.
member. The bill authorized the Tribes to retain 30% of their award to be used for programs to benefit the Tribes' membership, with the remaining 70% to be distributed per capita to tribal members. The Tribes were directed to bring current their membership rolls. The Secretary of Interior was charged with preparing a roll of the lineal descendants of the Sisseton and Wahpeton Mississippi Sioux Tribes, and the money allocated to "all other Sisseton Wahpeton Sioux" was to be paid per capita to those persons appearing on the roll. The roll was completed in April 1987, and payment was scheduled for May 7, 1987.
This court has jurisdiction under 28 U.S.C. Sec. 1291. The district court entered judgment on May 3, 1988, and the notice of appeal was filed on June 20, 1988. The appeal is timely under FRAP 4(a)(1), which provides that where the United States is a party, notice must be filed within 60 days after entry of the judgment.
We review de novo a district court's dismissal for lack of subject matter jurisdiction. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); Peter Starr Prod. Co. v. Twin Continental Films, 783 F.2d 1440, 1442 (9th Cir.1986). Whether the district court applied the correct statute of limitations also is a question of law, reviewed de novo. Christensen v. United States, 755 F.2d 705, 707 (9th Cir.1985). However, where the issue of limitations requires determination of when a claim begins to accrue, the complaint should be dismissed only if the evidence is so clear that there is no genuine factual issue and the determination can be made as a matter of law. In re Swine Flu Prod. Liab. Litig., 764 F.2d 637, 638 (9th Cir.1985); Lundy v. Union Carbide Corp., 695 F.2d 394, 397-98 (9th Cir.1982); Williams v. Borden, Inc., 637 F.2d 731, 738 (10th Cir.1980).
The Tribes' substantive claims appear to have some merit; they assert that at no time prior to or including the entry of the final judgment did the United States represent that nonmembers would have a right to any portion of the judgment funds, and that in approving the settlement, none of the tribes understood that lineal descendants would be sharing in the distribution of the judgment fund. However, the Tribes fail to explain why they waited fifteen years to challenge the government's clear and explicit decision to award part of the fund to nonmembers. Although the Tribes offer many arguments why 28 U.S.C. Sec. 2401(a)'s six year statute of limitations either does not apply or was tolled, they all run up against the same obstacle: the 1972 Distribution Act explicitly made the allocations that the Tribes now allege violated their rights, and the effect and terms of the Act were hardly obscure. In fact, the Tribes participated in the creation of the distribution plan, and eventually endorsed
the Act. Although their support apparently was a compromise in order to get a distribution plan passed and possibly would not foreclose the Tribes from later bringing suit to challenge the Act, the fact of their participation does underscore the point that the Tribes from the very beginning had full knowledge of the Act they now challenge.
The general statute of limitations applicable to civil actions against the United States, 28 U.S.C. Sec. 2401(a), provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." The Tribes do not argue that a different statute of limitations applies; they simply challenge the application of Sec. 2401(a).
The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress; the terms of its consent define the extent of the court's jurisdiction. The applicable statute of limitations is a term of consent. The plaintiff's failure to sue within the period of limitations is not simply a waivable defense; it deprives the court of jurisdiction to entertain the action. United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841; Block v. North Dakota, 461 U.S. 273, 292, 103 S.Ct. 1811, 1822, 75 L.Ed.2d 840 (1983); Soriano v. United States, 352 U.S. 270, 273, 77 S.Ct. 269, 271-72, 1 L.Ed.2d 306 (1957).
Indian Tribes are not exempt from statutes of limitations governing actions against the United States. Mottaz, 476 U.S. at 842, 106 S.Ct. at 2229-30 (); Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968) (); Capoeman v. United States, 194 Ct.Cl. 664, 440 F.2d 1002, 1008 (1971) (). Further, 28 U.S.C. Sec. 2401(a) applies to equitable claims as well as claims for monetary damages. Christensen v. United States, 755 F.2d 705, 708 (9th Cir.1985) (), cert. denied, 476 U.S. 1181, 106 S.Ct. 2914, 91 L.Ed.2d 543 (1986).
Because 28 U.S.C. Sec. 2401 is a condition of the waiver of sovereign immunity, courts are reluctant to interpret the statute of limitations in a manner that extends the waiver beyond that which Congress clearly intended. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979), Soriano, 352 U.S. at 276, 77 S.Ct. at 273; see, e.g., Block, 461 U.S. at 287, 103 S.Ct. at 1819-20 (). None of appellants' arguments...
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