Manypenny v. U.S., 90-5480

• Decision Date: 17 December 1991
• Docket Number: No. 90-5480,90-5480
• Citation: 948 F.2d 1057
• Parties: Marvin MANYPENNY, Margaret Norcross, Seraphine Rock, Theodore Hoagland, Leroy Nelson, George McDonald, Dorothy Brown, John Brown, Maggie Weaver, Winona LaDuke, Sun Bear (a/k/a Vincente LaDuke), Shirley LaDuke, Clifton LaDuke, George Peake, Jr., David Peake, Lesley Bellecourt, Fred Weaver, Earl Peabody, Maji Gabo, a/k/a Laverne Boswell, John Bush, Harry Kettle, Albert Murray, Luella B. Morrison Hulbert, and George Fineday, Sr., Appellants, and Norma Koenen, individually, and on behalf of all others similarly situated, v. The UNITED STATES of America, the United States Department of Interior, Donald Hodel, in his official capacity as Secretary of the Interior, Ross Swimmer, in his official capacity as Assistant Secretary of the Interior for Indian Affairs; State of Minnesota, County of Becker, County of Clearwater, County of Mahnomen, Thomas Triplett, Commissioner of Revenue, State of Minnesota, individually and in his official capacity, Ernest E. Kretzschmar, Harold Nystrom, Elizabeth Nystrom, Albin Scherping, S.E. Mooers, Violet J. Schroeder, Samuel Gladdig, Frances Johnson, L.G. Everest, Inc., Leslie M. Hanson, Waubaun School District # 435, Allan Aanerud, Arnold Basted, Douglas Kramer, Joan Kramer, Richer Swierr, Agnes Swierr, A.J. Wambach, Jr., Beryl Wambach, Brian M. Elliott, Veronica M. Elliott, Appellees, Gerald Fleming, Susan J. Fleming, Robert G. McGregor, Jacqueline McGregor, John Doe and Mary Roe, current and past holders or claimants to lands on the White Earth Indian Reservation properly belonging to Plaintiffs and members of the respective classes they represent, Appellees. George FINEDAY, Sr., Fred Weaver, Melvin Buckanaga, Sr., John Gwinn, Hank Smith, Freda Higman, Marvin Manypenny, Sullivan Adams, Hazel Arthur, Karen Manypenny, Dorothy Brown, Bernice Buckanaga, Hazel Aitkin, Sally Lu Littlewolf, Appellants, v. The UNITED STATES of America, the United States Department of Interior, Donald Hodel, individually and in his official capacity as Secretary o
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1057

948 F.2d 1057

Marvin MANYPENNY, Margaret Norcross, Seraphine Rock,

Theodore Hoagland, Leroy Nelson, George McDonald, Dorothy

Brown, John Brown, Maggie Weaver, Winona LaDuke, Sun Bear

(a/k/a Vincente LaDuke), Shirley LaDuke, Clifton LaDuke,

George Peake, Jr., David Peake, Lesley Bellecourt, Fred

Weaver, Earl Peabody, Maji Gabo, a/k/a Laverne Boswell, John

Bush, Harry Kettle, Albert Murray, Luella B. Morrison

Hulbert, and George Fineday, Sr., Appellants,

and Norma Koenen, individually, and on behalf of all others

similarly situated, v. The UNITED STATES of America, the United States Department

of Interior, Donald Hodel, in his official capacity as

Secretary of the Interior, Ross Swimmer, in his official

capacity as Assistant Secretary of the Interior for Indian

Affairs; State of Minnesota, County of Becker, County of

Clearwater, County of Mahnomen, Thomas Triplett,

Commissioner of Revenue, State of Minnesota, individually

and in his official capacity, Ernest E. Kretzschmar, Harold

Nystrom, Elizabeth Nystrom, Albin Scherping, S.E. Mooers,

Violet J. Schroeder, Samuel Gladdig, Frances Johnson, L.G.

Everest, Inc., Leslie M. Hanson, Waubaun School District #

435, Allan Aanerud, Arnold Basted, Douglas Kramer, Joan

Kramer, Richer Swierr, Agnes Swierr, A.J. Wambach, Jr.,

Beryl Wambach, Brian M. Elliott, Veronica M. Elliott, Appellees,

Gerald Fleming, Susan J. Fleming,

Robert G. McGregor, Jacqueline McGregor, John Doe and Mary

Roe, current and past holders or claimants to lands on the

White Earth Indian Reservation properly belonging to

Plaintiffs and members of the respective classes they

represent, Appellees.

George FINEDAY, Sr., Fred Weaver, Melvin Buckanaga, Sr.,

John Gwinn, Hank Smith, Freda Higman, Marvin Manypenny,

Sullivan Adams, Hazel Arthur, Karen Manypenny, Dorothy

Brown, Bernice Buckanaga, Hazel Aitkin, Sally Lu Littlewolf, Appellants, v. The UNITED STATES of America, the United States Department

of Interior, Donald Hodel, individually and in his official

capacity as Secretary of Interior, Ross Swimmer,

individually and in his official capacity as Assistant

Secretary of the Interior for Indian Affairs, State of

Minnesota, County of Becker, County of Clearwater, County of

Mahnomen, Thomas Triplett, Commissioner of Revenue, State of

Minnesota, individually and in his official capacity, T.P.

Kremer, William Sheeler, Oscar Peterson, Gerald Fleming,

Carol Fleming, A. Roger Viker, R.D. Malmo, Edward Trautner,

Leona Trautner, St. C. Lister Co., John Donley and Glenice

Donly, and John Doe and Mary Roe, current and past holders

or claimant to lands on the White Earth Indian Reservation

properly belonging to Plaintiffs and members of the

respective classes they represent, Arnold Blazer, Marion J.

Pederson, Theodore E. Dubois, Arthur E. Erickson, Gwendolyn

Erickson, Ralph C. Kunze, Adryn Sponberg, James B. Hull,

Muriel A. Hull, Paul Stalberger, Joann Stalberger, Raymond

Brtek, Lawrence Osenga, Diane Osenga, Appellees.

No. 90-5480.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1991.

Decided Oct. 29, 1991.

Rehearing and Rehearing En Banc

Denied Dec. 17, 1991.

Kurt V. BlueDog, Bloomington, Minn., argued (Edward M. Peterson, Jr., on the brief), for appellants.

Mary E. Carlson, Minneapolis, Minn., argued (Jerome G. Arnold, on the brief), for appellee U.S.

William A. Szsotkowski, St. Paul, Minn. (Hubert H. Humphrey III, Jerilyn K. Aune, on the brief), for appellee State of Minn.

Nancy Wiltgen Reibert, Minneapolis, Minn., argued (Charles K. Dayton, on the brief), for appellee Becker, et al.

Wayne P. Dordell, St. Paul, Minn., argued, for appellee Wambach, et al.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Marvin Manypenny and George Fineday, Sr., as the first-named plaintiffs in two consolidated lawsuits brought by a total of thirty-five enrolled members of the White Earth Band of Chippewa Indians appeal from judgments entered against them on motions to dismiss. The lawsuits seek to quiet title on behalf of certain Indians or their heirs to property currently possessed by others. The plaintiffs seek declaratory, injunctive and monetary relief, and also allege civil rights violations, intentional torts, and negligence. The district court ¹ concluded that Manypenny and Fineday failed to establish that the federal court had jurisdiction over their claims against the United States, its agencies and officials in their official capacity, the State of Minnesota, and its Commissioner of Revenue. Manypenny v. United States, No. 486-770, slip op. at 32 (D.Minn. Feb. 16, 1988). The district court concluded that other claims against state and federal officials in their individual capacities were barred either for failure to state a claim upon which relief could be granted or by absolute or qualified immunity. ² Id. In a second order, the district court dismissed claims against three Minnesota counties and individual landowners because an indispensable party, the United States, had been dismissed earlier from the lawsuit and could not be joined. Manypenny v. United States, 125 F.R.D. 497, 502-03 (D.Minn.1989). On appeal, Manypenny and Fineday argue that: (1) the White Earth Reservation Land Settlement Act of 1985, Pub.L. No. 99-264, 100 Stat. 61 (1986), known as WELSA, waived the federal government's sovereign immunity, (2) the State of Minnesota waived its eleventh amendment immunity by participating in WELSA, and (3) the counties and individual defendants were improperly dismissed on the basis that the United States is an indispensable party to the action. We affirm the judgment of the district court.

The Manypenny and Fineday plaintiffs assert approximately 40 claims involving title and possessory interests in 4,087 acres of land in Becker, Clearwater, and Mahnomen counties in Minnesota, all within the White Earth Indian Reservation. A brief history of the disputed land, largely tracing transactions, public policies, and government enactments of the late 1800s and early 1900s, is helpful in understanding the context in which this appeal arises.

Several bands of Chippewa Indians originally owned the land comprising the White Earth Reservation. Through a series of treaties culminating in the treaty of March 19, 1867, the Chippewas ceded an estimated two million acres in exchange for payments and the promise that a reservation would be created for their permanent use and occupation. 16 Stat. 719-23 (1867). Twenty years later, the General Allotment Act, 24 Stat. 388 (1887), established the national policy of breaking up tribal reservations by allotting parcels of reservation land to individual Indians and permitting the land not used for such allotments to be sold to non-Indians. In 1889, the Nelson Act, 25 Stat. 642 (1889), applied the allotment policy to the White Earth Reservation, which then covered thirty-six townships and 830,000 acres. Under the Act, each full- or mixed-blood allottee received a trust patent under which the United States would hold the allotted land in trust for twenty-five years before conveying the title in fee to the allottee. During the trust period, each allotment would be tax-exempt and could not be alienated or encumbered without the approval of the Secretary of the Interior.

Over nearly twenty years, the government issued about 8,000 allotments. Executive orders signed in 1927, 1932, and 1933 extended the trust periods on most White Earth tracts. The Indian Reorganization Act of 1934, 48 Stat. 984 (1934) (codified at 25 U.S.C. § 462 (1988)), extended indefinitely all trust periods then in existence.

By the 1930s, however, most of the allotted land had already been sold, lost through forfeiture, or otherwise alienated. The Clapp Amendment, enacted in 1906, 34 Stat. 325, 353 (1906), purported to remove all restrictions on the sale of land allotted to adult mixed-blood Indians at the White Earth Reservation. ³ The Clapp Amendment and conflicts over its proper interpretation led to the many disputed land transactions underlying this lawsuit.

In Baker v. McCarthy, 145 Minn. 167, 176 N.W. 643 (1920), the Minnesota Supreme Court interpreted the Clapp Amendment as terminating the trust relationship and conveying the fee title to mixed-blood allottees. Id. 176 N.W. at 644. In Morrow v. United States, 243 F. 854 (8th Cir.1917), however, this court held that the Clapp Amendment could not unilaterally terminate the relationship created by the trust patents because the government, in its dealings with the Indians, may "create property rights which, once vested, even it cannot alter." Id. at 856. Under Morrow, the trust relationship continued until the mixed-blood allottees applied for title in fee simple, and the land was not taxable or alienable before that time. Id. at 858. Under McCarthy, however, the allotments of mixed-blood Indians could be freely taxed, mortgaged or sold without the federal government's consent. McCarthy, 176 N.W. at 644.

In the years immediately following its passage, the Clapp Amendment resulted in the transfer of most of the White Earth land to private parties. H.R.Rep. No. 99-489, 99th Cong., 2d Sess. 1, 2-3 (1986). Reservation land holdings plummeted from approximately 830,000 to 57,000 acres. While many of the White Earth allotments were sold or mortgaged by mixed-blood Indians, some were alienated by full-blood Indians. In addition, the purported loss of tax-exempt status allowed state and local governments to begin taxing the allotments, many of which were later lost through tax forfeitures. Morrow voided these forfeitures and cast doubt upon the validity of many of the land transfers that occurred between 1906 and 1917. During a brief period of enforcement of the trust patents between 1910 and 1920, the Department of Justice brought suit on behalf of the Indians and most of the sales by full-blood allottees were voided. The Department of Justice...