Lebeau v. U.S., No. Civ. 99-4106.

• Decision Date: 29 September 2000
• Docket Number: No. Civ. 99-4106.
• Citation: 115 F.Supp.2d 1172
• Parties: Casimer LEBEAU and Vernon Ashley, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

115 F.Supp.2d 1172

Casimer LEBEAU and Vernon Ashley, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. UNITED STATES of America, Defendant.

No. Civ. 99-4106.

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

September 29, 2000.

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 OPINION AND ORDER ON MOTIONS

PIERSOL, Chief Judge.

Pending before the Court are motions to intervene and to dismiss filed by The Sisseton-Wahpeton Sioux Tribe, the Spirit Lake Tribe and the Sisseton-Wahpeton Sioux Council of the Assiniboine and Sioux Tribes (collectively referred to herein as "the Tribes"). (Docs.11, 12.) Plaintiffs and the defendant filed briefs in response to the motions to intervene and dismiss and the Tribes filed a reply brief. For the reasons set forth below, the Court will grant the Tribes' motion to intervene for the sole purpose of seeking dismissal of this action under Fed.R.Civ.P. 19 and will deny the Tribes' motion to dismiss. This action will proceed among the plaintiffs and the defendant.

I. 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 apportioned 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.). 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"). Pub.L. No. 90-352, 82 Stat. 239. In the Act of October 25, 1972 ("the 1972 Act"), Congress apportioned 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. Pub.L. No. 92-555, 86 Stat. 1168 (codified at 25 U.S.C. § 1300d, et seq.). 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 distribution of funds under the 1972 Act. The lineal descendants' share was originally $1,469,831.50 and was estimated in October 1998 to be approximately $15.2 million. S.Rep. No. 105-379 (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 apportions 25.0225% of the Judgment Fund to the lineal descendants. Sisseton-Wahpeton Sioux Tribe v. United States, 686 F.Supp. 831 (D.Mont.1988) ("Sisseton-Wahpeton 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' apportionment of the Judgment Fund. 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. 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-Wahpeton 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. 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-Wahpeton III"). During the pendency of the Tribes' claims in the federal court system, the lineal descendants did not receive any of the funds apportioned 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% apportioned 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 of the Interior is currently in the process of determining how many additional lineal descendants will share in the Judgment Fund apportioned to the lineal descendants, see Loudner v. United States, 108 F.3d 896 (D.S.D.1995) (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. Pub.L. No. 105-387, 112 Stat. 3471 (codified at 25 U.S.C. § 1300d-21 et seq.). Pursuant to the 1998 Act, the Tribes will receive at least 28.3995% of the lineal descendants' share of the Judgment Fund apportioned 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. 25 U.S.C. §§ 1300d-23(a)(1), 1300d-26, and 1300d-27. 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 apportioned to them in the 1972 Act. 25 U.S.C. § 1300d-27(e).

The Tribes seek to intervene in this action for the limited purpose of filing a motion to dismiss for failure to join necessary and indispensable parties pursuant to Rule 19 of the Federal Rules of Civil Procedure. The Tribes contend they are necessary parties pursuant to Rule 19(a) and they cannot be joined as parties herein because of their sovereign immunity. The Tribes contend the United States cannot adequately represent their interests in this action in light of the government's dual trust obligations to the Tribes and the plaintiffs and in light of the past opposition to the Tribes' claims in Sisseton I, Sisseton II, and Sisseton III, supra. The Tribes contend they are indispensable parties under Rule 19(b) and this action must, therefore, be dismissed.

The plaintiffs contend that the Court should allow the Tribes to intervene only for the limited purpose of defending the validity of the 1998 Act and should deny the Tribes' motion to dismiss under Rule 19. Plaintiffs assert that if the constitutional attack as to the validity of the 1998 Act is dismissed pursuant to Rule 19, the plaintiffs should be allowed to proceed with a cause of action for damages against the United States based on the United States' breach of its trust obligations to the lineal descendants under the 1972 Act.

The United States does not oppose the Tribes' motion to intervene, but the United States contends granting the Tribes' motion to dismiss would deprive plaintiffs of any opportunity to challenge the validity of the 1998 Act even though Congress sought to assure that right to the lineal descendants. The United States contends it adequately represents the interest of the absent Tribes in this action and that the Tribes are, therefore, not necessary and indispensable parties in this action. Citing Babbitt v. Youpee, 519 U.S. 234, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997) and Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987), the United States asserts that lawsuits in which individuals allege Congress has acted in violation of their constitutional rights commonly proceed in the absence of tribes who have an interest in the litigation. Both the Tribes and the United States have the same interest in defending the constitutionality of the 1998 Act, according to the United States, which is the primary reason asserted by the United States for denying the Tribes' motion to dismiss pursuant to Rule 19.

II. Decision

The Tribes seek to intervene in this action for the sole purpose of filing a motion to dismiss for failure to join necessary and indispensable parties. Joinder of necessary and indispensable parties is governed by Rule 19 of the Federal Rules of Civil Procedure, which states in part:

Joinder of Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.....

(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among ...