Lebeau v. U.S.

• Decision Date: 25 September 2001
• Docket Number: No. Civ. 99-4106.,Civ. 99-4106.
• Citation: 171 F.Supp.2d 1009
• Parties: Casimer LeBEAU and Vernon Ashley, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. UNITED STATES of America, Defendant, and The Sisseton-Wahpeton Sioux Tribe; Spirit Lake Tribe; and the Sisseton-Wahpeton Sioux Council of the Assiniboine & Sioux Tribes, Intervenors-Defendants.
• Court: U.S. District Court — District of South Dakota

171 F.Supp.2d 1009

Casimer LeBEAU and Vernon Ashley, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. UNITED STATES of America, Defendant and The Sisseton-Wahpeton Sioux Tribe; Spirit Lake Tribe; and the Sisseton-Wahpeton Sioux Council of the Assiniboine & Sioux Tribes, Intervenors-Defendants.

No. Civ. 99-4106.

United States District Court, D. South Dakota, Southern Division.

September 25, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John M. Grossenburg, Winner, SD, Charles Rick Johnson, Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, SD, for plaintiff.

Jan L. Holmgren, United States Attorney's Office, Sioux Falls, SD, for defendant.

James E. McMahon, Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD, Bertram E. Hirsch, Great Neck, NY, for interested party, Sisseton-Wahpeton Sioux Tribe, Spirit Lake Tribe, and Sisseton-Wahpeton Sioux Counsel of the Assiniboine and Sioux Tribes.

MEMORANDUM OPINON AND ORDER

PIERSOL, Chief Judge.

The plaintiffs, Casimir LeBeau and Vernon Ashley, filed a motion to amend the complaint, Doc. 51, and a second motion for judgment on the pleadings, Doc. 60. The defendant, United States, filed a motion for summary judgment, Doc. 66. The intervenors-defendants, the Sisseton-Wahpeton Sioux Tribe, the Spirit Lake Tribe and the Sisseton-Wahpeton Sioux Council of the Assiniboine and Sioux Tribes ("the Tribes") filed a motion for summary judgment, Doc. 62. A hearing on the pending motions was held on May 18, 2001, with the plaintiffs appearing by their counsel, J.M Grossenburg, the United States appearing by its counsel, Assistant United States Attorney Jan L. Holmgren, and with the Tribes appearing by their counsel, Bertram E. Hirsch. Having taken the motions under advisement, the Court now grants plaintiffs' motion to amend the complaint and denies the second motion for judgment on the pleadings. The United States' motion for summary judgment is granted in part and denied in part. The Tribes' motion for summary judgment is granted in part and denied in part.

I. FACTUAL BACKGROUND

This action was filed by the plaintiffs to challenge the constitutionality of a recently enacted law which has the effect of diminishing, by at least 28.3995%, the funds appropriated by Congress in 1968, plus accumulated interest, and allocated in 1972 for the benefit of plaintiffs and others similarly situated to satisfy a final judgment entered by the Indian Claims Commission¹ relating to the United States' breach of two treaties² involving approximately 27 million acres of land ceded to the United States by the Sisseton and Wahpeton Sioux Tribes in the 19th century. See Pub.L. No. 105-387, 112 Stat. 3471 (codified at 25 U.S.C. § 1300d-21 et seq. (2001)). Pursuant to the Act of June 19, 1968 Congress appropriated nearly $6 million to satisfy the judgment entered by the Indian Claims Commission (hereinafter referred to as "the Judgment Fund"). See Pub.L. No. 90-352, 82 Stat. 239. In the Act of October 25, 1972 ("the 1972 Act"), Congress allocated 25.0225% of the nearly $6 million Judgment Fund for distribution to Sisseton and Wahpeton Mississippi Sioux Tribe lineal descendants (hereinafter referred to as "lineal descendants") who were not members of the tribes listed in the 1972 Act but could trace lineal ancestry to tribal members listed on rolls acceptable to the Secretary of the Interior ("Secretary"). See Pub.L. No. 92-555, 86 Stat. 1168 (codified at 25 U.S.C. § 1300d, et seq. (1983) (amended 1998)). The number of lineal descendants who were not members of the three successor tribes was unknown at the time the 1972 Act was enacted. See S.Rep. No. 92-144, at 7 (1971). Plaintiffs are lineal descendants who have been determined to be eligible to share in the distribution pursuant to the 1972 Act, but who, to this day, have not received any funds pursuant to the 1972 Act. In October 1998, the lineal descendants' share was estimated to be worth approximately $15.2 million. See S.Rep. No. 105-379, at 3 (1998).

In an action filed in the Montana district court in 1987, the Tribes challenged the validity of the portion of the 1972 Act which allocates 25.0225% of the Judgment Fund to the lineal descendants. See Sisseton-Wahpeton Sioux Tribe v. United States, 686 F.Supp. 831 (D.Mont.1988) ("Sisseton I") (subsequent history omitted). The Montana District Court held that the plaintiff Tribes' claims were barred by the statute of limitations, finding that the Tribes had waited nearly fifteen years to challenge Congress' allocation of the Judgment Fund. See id. at 834, 837-38. The Ninth Circuit Court of Appeals agreed the Tribes' claims regarding the lineal descendants' share of the Judgment Fund were time-barred. See Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 597 (9th Cir.), cert. denied, 498 U.S. 824, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990) ("Sisseton II"). On remand for consideration of the possibility of amending the complaint, the Montana District Court granted summary judgment to the United States and the Ninth Circuit again affirmed the denial of relief to the Tribes. See Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 356 (9th Cir.), cert. denied, 519 U.S. 1011, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996) ("Sisseton III"). During the pendency of the Tribes' claims in the federal court system, the lineal descendants did not receive any of the funds allocated to them by the 1972 Act. In 1994, individuals claiming to be lineal descendants eligible to share in the Judgment Fund brought an action contending they were not given notice of the Judgment Fund and seeking to share in the 25 .0225% allocated to the lineal descendants pursuant to the 1972 Act. See Loudner v. United States, 108 F.3d 896 (8th Cir.1997). The Eighth Circuit ruled that the plaintiffs' claims in Loudner were not time-barred, id. at 903-04, and the Secretary is currently in the process of determining how many additional lineal descendants will share in the Judgment Fund allocated to the lineal descendants, see Loudner v. United States, CIV 94-4294 (D.S.D.) (on remand).

In 1998, Congress enacted the Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998 ("the 1998 Act"), which is the subject of the present action. See 25 U.S.C. § 1300d-21 et seq. (2001). Pursuant to the 1998 Act, the Tribes will receive at least 28.3995% of the lineal descendants' share of the Judgment Fund allocated to the lineal descendants in the 1972 Act if a final judgment is not entered in favor of one or more lineal descendants in this action. See 25 U.S.C. §§ 1300d-23(a)(1), 1300d-26, and 1300d-27 (2001). If a final judgment is entered in favor of one or more lineal descendants in this action, the Tribes will not receive a distribution under the 1998 Act, and the lineal descendants will receive the share of the Judgment Fund allocated to them in the 1972 Act. See 25 U.S.C. § 1300d-27(e) (2001).

The United States moves for summary judgment, contending that: 1) the Court does not have jurisdiction over plaintiffs' claim that the United States breached a trust duty owed to the plaintiffs as a result of Congress' enactment of the 1998 Act; 2) the United States did not breach a trust duty owed to plaintiffs by failing to distribute plaintiffs' shares of the Judgment Fund; and 3) the enactment of the 1998 Act did not constitute a taking of plaintiffs' property without payment of just compensation under the Fifth Amendment. In support of the above contentions, the United States argues that no common law trust duties exist and any trust duties owed to plaintiffs would arise from either the 1972 Act or the 1998 Act. The only alleged breach of trust, the United States contends, is for failure to distribute the money to the lineal descendants within a reasonable time and manner. Asserting that a six-year statute of limitations applies to plaintiffs' breach-of-trust claim, the United States contends that any delay in distribution of the Judgment Fund between 1972 and 1987 is time-barred. Moreover, the United States asserts that the Secretary has been carrying out the duty to prepare the rolls required by 25 U.S.C. § 1300d-3(b) (1983) (amended 1998), and that any delay in the preparation of the rolls has been caused by persistent litigation involving the Judgment Fund spanning several years. The United States contends the plaintiffs lack a private property interest in the Judgment Fund, which is required to prevail on their takings' claim, because the lineal descendants never obtained a vested right in the fund. When Congress enacted the 1998 Act, the United States argues, it had the power to revise the original allocation of the Judgment Fund, as set forth in the 1972 Act, because the money remained tribal property and had not yet been distributed to the lineal descendants. The United States claims that Congress was providing for the disposition of tribal property, rather than individual property, when it enacted the 1972 Act. The United States argues that plaintiffs will not possess a vested property right in the Judgment Fund until distribution occurs, or at the earliest, when the Secretary prepares the roll of eligible lineal descendants as required by 25 U.S.C. § 1300d-3(b) (2001). Even if plaintiffs possessed a vested property interest in the Judgment Fund, the United States contends plaintiffs' taking claim fails because none of the Judgment Fund was taken for "public use" under the Fifth Amendment.

The Tribes advance many of the same arguments made by the United States and incorporate its arguments in support of the Tribes' motion for summary judgment. Citing Congress' plenary power over Indian affairs, the Tribes contend the 1998 Act is valid because Congress possessed the power, prior to distribution, to reallocate a portion of the Judgment Fund from the lineal descendants to the Tribes. The Tribes contend plaintiffs lack a constitutionally protected property interest in the...