Delorme v. U.S., 02-3460.
Citation | 354 F.3d 810 |
Decision Date | 13 January 2004 |
Docket Number | No. 02-3460.,02-3460. |
Parties | Ronald DELORME, as Hereditary Chief of the Little Shell Band of Indians and its Grand Council, Plaintiff — Appellant, v. UNITED STATES of America, Defendant — Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Irwin B. Nodland, argued, Bismarck, North Dakota, for appellant.
Anna T. Katselas of Washington, argued, D.C. (Thomas L. Sansonetti, John A. Bryson, on the brief), for appellee.
Before MURPHY, LAY, and FAGG, Circuit Judges.
Ronald Delorme, hereditary chief of the Little Shell Band of Indians of North Dakota, brought this action for an accounting of funds to be distributed pursuant to two federal appropriations statutes dealing with Chippewa land claims. The district court1 dismissed the action because the United States had not waived its sovereign immunity. Delorme appeals, and we affirm the dismissal because standing is lacking.
Throughout the nineteenth century, the United States government entered into land cession treaties with American Indian tribes and bands. In 1863, the United States signed the Old Crossing Treaty with the Red Lake and Pembina Bands of Chippewa. Chief Little Shell led the Pembina Band and signed the treaty as its representative. The treaty ceded several thousand acres of Indian lands near the Red River of the North to the United States government in exchange for a nominal amount of money to be paid to the Chippewa bands.
In 1871, the United States shifted from a policy of making treaties with Indian tribes to a policy of allotment and assimilation, which included creating reservations. Felix Cohen, Handbook of Federal Indian Law 127 (3d ed.1982). In 1873, the United States government purchased a township on the White Earth Reservation in Minnesota for the Pembina Indians. Red Lake, Pembina, & White Earth Bands v. United States, 6 Ind. Cl. Comm. 247, 249 (Ind.Cl. Comm.1958). Not all of the Pembina moved to the township, however, and some remained in North Dakota. In 1882, an Executive Order formed a reservation for the "Turtle Mountain Band of Chippewas and such other Indians of the Chippewa Tribe as the Secretary of the Interior may see fit to settle there." Id. at 250. Although the United States intended for the Little Shell Band to move to the reservation permanently, part of the band never settled on the Turtle Mountain reservation.
In 1892, the United States government sent a commission, headed by P.J. McCumber, to negotiate with the Chippewa to extinguish aboriginal title to the land they still owned. Chief Little Shell attended the meetings but wanted to retain more land than acceptable to the commission. He walked out of the negotiations and never signed the subsequent McCumber Agreement.
In the late 1940s, lineal descendants of the signatories of the 1863 Treaty alleged to the Indian Claims Commission (Commission) that the United States was in default for not making the payments promised under the treaty. They also alleged that they had not received fair compensation for the land ceded under it. In 1951, the Commission decided that the Pembina Indians could pursue their claims even though they were no longer organized as a band. See Red Lake, Pembina and White Earth Bands, and Minnesota Chippewa Tribe v. United States, 1 Ind. Cl. Comm. 575, 588 (Ind.Cl.Comm.1951).
In 1958, the Commission awarded $2,760,245.64 to the descendants of the Red Lake and Pembina Bands. This judgment was upheld by the Court of Claims.2 See Red Lake, Pembina & White Earth Bands v. United States, 164 Ct.Cl. 389 (Ct.Cl.1964). The Little Shell Band of Chippewa Indians filed a second appeal after the Court of Claims remanded the decision. The band sought to be designated the sole successor of the Pembina Band and to receive the entire award because "it and the Turtle Mountain Band would turn out to be the only proper representatives and successors of the Pembina Band." Red Lake & Pembina Bands v. Turtle Mountain Band of Chippewa Indians, 173 Ct.Cl. 928, 355 F.2d 936, 943-44 (1965). Rejecting the Little Shell Band's argument, the Court of Claims found that individual descendants of a previously existing tribe or band could bring cases and share in awards under the Indian Claims Commission Act. Id.
On July 29, 1971, the United States Congress enacted Public Law 92-59 to distribute the funds which had been awarded to the Red Lake and Pembina Bands by the Commission. In large part the act tracked the language used by the Commission in its 1958 Order awarding compensation to the Red Lake Band and descendants of the Pembina Band. See Red Lake, Pembina, & White Earth Bands, 6 Ind. Cl. Comm. at 247. It authorized the Secretary of the Interior to prepare a roll of all living lineal descendants of the Pembina Band as constituted in 1863; to apportion and disseminate funds to the Minnesota Chippewa Tribe, the Turtle Mountain Band of Chippewas of North Dakota, and the Chippewa Cree of Montana, based on the number of those descendants enrolled as tribal members; and to distribute funds in equal shares to those enrolled descendants who were not members of any of the three mentioned tribes. Pub.L. No. 92-59, 85 Stat. 158 (1971).
The descendants of the Pembina Bands, including the Little Shell Bands,3 also sought compensation from the Commission for the extinguishment of aboriginal title for a tract in excess of eight million acres located in North Dakota. See United States v. Turtle Mountain Band of Chippewa Indians, 222 Ct.Cl. 1, 612 F.2d 517, 519 (1979); Turtle Mountain Band of Chippewa Indians, Red Lake Band, & Peter Graves v. United States, 43 Ind. Cl. Comm. 251 (Ind.Cl.Comm.1978).
In 1970 the Commission found that the Plains Ojibwe held aboriginal title to these lands at the time of taking. Turtle Mountain Band v. United States, 23 Ind. Cl. Comm. 315 (Ind.Cl.Comm.1970). The Commission defined the Plains Ojibwe to include the Little Shell Band, noted that the Little Shell Band in the litigation was not the same as the Turtle Mountain Band, and held that the Little Shell Band had standing to pursue its claims. Id. at 319. The Commission also explained that it had "no jurisdiction to determine how an award is to be paid or precisely who can participate in an award" because such decisions were for congressional and administrative determination. Id. at 319.
The Commission awarded $52,527,337.97 to the plaintiff Indian bands, including the Little Shell Bands.4 Id. The Court of Claims modified the award slightly, id., and the United States Treasury, pursuant to a certificate of settlement issued by the Court of Claims, transferred the money to the Secretary of Interior on March 25, 1980. Use and Distribution of Pembina Chippewa Indian Judgment Funds: Hearing on S. 1735 Before the Senate Select Comm. on Indian Affairs, 97th Cong. 1 (1982) (statement of Senator Mark Andrews, Acting Chairman, Senate Select Comm. on Indian Affairs).
Under the Distribution of Judgments Act, 25 U.S.C. § 1402(a), the Secretary of the Interior, through the Bureau of Indian Affairs (BIA), prepared and submitted to Congress a plan for the use and distribution of these funds. Use and Distribution of Pembina Chippewa Indian Judgment Funds: Hearing on S. 1735 Before the Senate Select Comm. on Indian Affairs, 97th Cong. 12-13 (1982) ( ). The BIA recommended that the money be distributed to
the Turtle Mountain Band of Chippewa Indians of North Dakota, in terms of the total tribal membership; the Chippewa Cree Tribe of Rocky Boy's Reservation of Montana, in terms of the number of members of Pembina ancestry, the overwhelming majority; the Minnesota Chippewa Tribe, in terms of the number of Pembinas affiliated with White Earth Reservation, a small minority; and the Pembina descendants of at least one-quarter Pembina blood who are not members of the three organized successor tribes.
The BIA rejected claims for a share in the award made by the Little Shell Bands, explaining that "[t]he appellation Little Shell is of no value in establishing Pembina ancestry." Id. Congress accepted the BIA's recommendations in 1982 by passing Public Law 97-403, which disseminated the appropriated and apportioned funds to the Turtle Mountain Band of Chippewa Indians of North Dakota, the Chippewa Cree Tribe of Rocky Boy's Reservation of Montana, the Minnesota Chippewa Tribe, and Pembina descendants who were not members of those three tribes.
Ronald Delorme received funds from the BIA under the two distribution acts which he seeks to challenge in this action.5 None of the Little Shell Bands appear to have ever received a tribal payment, however, unlike the Turtle Mountain Band, Chippewa Cree Tribe, and the Minnesota Chippewa Tribe.6
On December 20, 2001, Ronald Delorme, on behalf of the Little Shell Band of Indians, brought this action in federal district court to challenge the two congressional acts authorizing distribution of funds allocated to satisfy the land claims judgments. Delorme alleges in this lawsuit that members of the band are lineal descendants of Chief Little Shell, who led the Pembina Band in 1863, and that they have never received payment under either Public Law 92-59 or Public Law 97-403. He seeks an accounting of the funds allocated and distributed under the acts.
More specifically, Delorme alleges four causes of action. First, he asks for an accounting of the funds distributed under Public Law 97-403. He claims that the funds are due and owing to the Little Shell Band as a separate entity recognized by the Court of Claims judgment and that the United States has violated its trust responsibility by withholding payment. Second, Delorme requests an accounting of the funds distributed under Public Law 92-59. He claims that the lineal descendants of Chief Little Shell did not receive any of the money and asks for "a fully...
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