Loudner v. US, Civ. No. 94-4294.
| Decision Date | 12 October 1995 |
| Docket Number | Civ. No. 94-4294. |
| Citation | 905 F. Supp. 747 |
| Parties | Joyce LOUDNER, Paul Harrison, Ambrose McBride, Chauncey Long Crow, Della Lytle, Hilda Long Crow, Lisa Redwing, Horace Gilbert Slow, Dorothy Slow, Darlene Fallis Jones, Lyle Medicine Crow, Ramona Estes, Fay Jandreau, Norman V. Taylor, Plaintiffs, v. UNITED STATES of America, and Bruce Babbit, individually and in his capacity as Secretary of the Interior, Defendants. |
| Court | U.S. District Court — District of South Dakota |
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Michael Charles Abourezk, Abourezk Law Offices, Rapid City, SD, Charles Rick Johnson, Stephanie E. Pochop, Johnson, Eklund Law Offices, Gregory, SD, for plaintiffs.
Craig Peyton Gaumer, U.S. Attorney's Office, Sioux Falls, SD, for defendant.
Before the Court is the United States' Motion to Dismiss, Docket Number 6, which came on for hearing on February 13, 1995. The Court took the motion under advisement and requested supplemental briefing and additional factual submissions on the issue of notice. Doc.21. The supplemental briefs were timely filed.
In 1967, the Sisseton-Wahpeton Sioux Tribe, the Devils Lake Sioux Tribe, and the Sisseton-Wahpeton Sioux Council of the Assiniboine and Sioux Tribes reached a settlement with the Indian Claims Commission in which the Tribes received approximately $6,000,000.00 in compensation for lands along the Mississippi River taken by treaty.1 Sisseton and Wahpeton Bands or Tribes v. US, 18 Ind.Cl.Comm'n 526-1 (1967). In 1968, Congress appropriated money to satisfy the judgment. Act of June 19, 1968 (82 Stat. 239). In 1972, Congress passed a plan which provided for the distribution of monies to the descendants of the aboriginal tribe. Act of October 25, 1972 (25 U.S.C. §§ 1300d-3 through 1300d-9).
The 1972 Distribution Act provided that 25.0225% of the appropriation2 was to be divided among the lineal descendants of the original Sisseton-Wahpeton Tribe who were not members of the three successor tribes.3 25 U.S.C. § 1300d-4. The portion of the judgment designated for the Tribes has already been distributed and is not at issue here. The Secretary of the Interior was "authorized to prescribe rules and regulations to carry out the provisions of this chapter, including the establishment of deadlines." 25 U.S.C. § 1300d-9. The deadline for submitting applications to share in the distribution was November 1, 1973. 25 C.F.R. § 61.4(s)(2). The BIA processed the applications to determine eligibility beginning late in 1978 and finishing early in 1980.4 Doc. 17 at 70.
In April, 1987, the roll had been completely updated and distribution was scheduled for May 7, 1987. Doc. 17 at 79. The final role contained 1969 names. Sisseton-Wahpeton Sioux Tribe v. US, No. CV-87-095-GF, slip op. at 4 (D.Mont. Sept. 20, 1994). Distribution was enjoined by the filing of the first of several lawsuits seeking to avoid any distribution to lineal descendants. The three Tribes first brought suit in Federal District Court in Montana challenging the validity of the Distribution Act itself. Sisseton-Wahpeton Sioux Tribe v. US, 686 F.Supp. 831 (D.Mont.1988). The district court did not reach the merits of the claim, holding the case barred by the statute of limitation in 28 U.S.C. § 2401(a). Id. at 838. The Ninth Circuit upheld the decision in Sisseton-Wahpeton Sioux Tribe v. US, 895 F.2d 588 (9th Cir.1990).
The tribes then filed suit alleging that the number of lineal descendants was exceptionally small, thereby making an allocation of 25% of the fund to them irrational. Sisseton-Wahpeton, No. CV-87-095-GF, slip op. at 3. The tribes argued that only those lineal descendants of persons listed on the aboriginal tribal roles from 1830 or 1851, the dates of the treaties, or 1862, just prior to forced dispersal, could qualify under 25 U.S.C. § 1300d-3(b). Id. at 6. The court granted summary judgment to the government, holding the statute was written in the disjunctive ("or") and included, in addition to the original tribal members, anyone listed on the rolls acceptable to the Secretary of the Interior on November 1, 1973. Id. at 7. The appeal of that decision is currently pending.
The present lawsuit was brought by a group of lineal descendants of the Sisseton-Wahpeton Sioux who are not listed on the roll prepared pursuant to 25 U.S.C. § 1300d-3(b). Plaintiffs allege that they have been deprived of valuable property rights by the Secretary of the Interior's failure to provide adequate notice to potential claimants of the lineal descendants' share of the Mississippi-Sioux judgment. Doc. 1 at XI-XVIII.
Government brings its Motion to Dismiss for Lack of Jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1). Doc.6. The government argues that this suit is time-barred by the statute of limitations, 28 U.S.C. § 2401(a). Id. at 2.
Subject matter jurisdiction is a threshold issue. Kronholm v. FDIC, 915 F.2d 1171, 1174 (8th Cir.1990). It goes to the very power of the Court to entertain the case. Plaintiffs bring this suit pursuant to 28 U.S.C. § 1346(a)(2), the Tucker Act, which is a waiver of sovereign immunity for claims for damages against the United States. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Any waiver of sovereign immunity is narrowly construed and "terms of the waiver of sovereign immunity define the extent of the court's jurisdiction." United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). The courts are "not free to enlarge that consent to be sued." Mann v. United States, 399 F.2d 672, 673 (9th Cir.1868).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action whenever the court lacks jurisdiction over the subject matter. The Eighth Circuit has stated the standards applicable to motions to dismiss:
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.
Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990); Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993).
Plaintiffs claim, brought under 28 U.S.C. § 1346(a)(2), alleges a due process violation resulting from insufficient notice of the requirements for eligibility in the Mississippi-Sioux distribution. A colorable constitutional claim must be brought within the six-year statute of limitations for civil actions against the United States. 28 U.S.C. § 2401(a); Impro Products, Inc. v. Block, 722 F.2d 845, 851 n. 12 (D.C.Cir.1983). The parties agree that § 2401(a) applies to this claim. Doc.7 at 2-3; Doc. 18 at 9.
Section 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." An action first "accrues" when a plaintiff knows or reasonably should have known of his injury. United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 358, 62 L.Ed.2d 259 (1979); Sisseton-Wahpeton, 895 F.2d at 592. "When a particular claim `accrues' ... is a question of federal law which must be determined by the court in light of the surrounding circumstances." United States v. LePatourel, 593 F.2d 827, 830 (8th Cir.1979). If the Court determines that the notice given of the 1972 Distribution was adequate to inform these plaintiffs of their rights to participate in the distribution, their cause of action is time-barred.
The Court finds that Plaintiffs' cause of action accrued in 1972 when the Distribution Act was passed. The Court finds the language of the 1972 Distribution Act and the reasoning of the District Court in Montana persuasive:
It was the 1972 Distribution Act, which first provided, in sections 202(a) and (c), 25 U.S.C. §§ 1300d-4(a) and (c), for a per capita distribution to individual Indians. Accordingly, on October 25, 1972, the date the Distribution Act was enacted, a designated portion of the judgment fund became, for the first time, a fund held for the benefit of, and payable to, the individual lineal descendants.... Any claim emanating from the decision of Congress to distribute a portion of the judgment fund appropriated by the 1968 Appropriations Act to individual lineal descendants accrued on October 25, 1972.
Sisseton-Wahpeton, 686 F.Supp. at 836-37. Although the Ninth Circuit, in affirming the District Court, suggested that the fact that a designated portion of the fund only became vested in individual payees in 1987, "might affect the time of accrual of the lineal descendants' cause of action," Sisseton-Wahpeton, 895 F.2d at 595, that statement is dicta and not helpful to Plaintiffs.5 A cause of action accruing in 1987 would have been time-barred in 1993, and this suit was not filed until December 23, 1994.6
Notice which is constitutionally sufficient must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). As Mullane states:
The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.... If these conditions are reasonably met, the constitutional requirements are satisfied.
Id. at 314-15, 70 S.Ct. at 657. Whether the notice to the Sisseton-Wahpeton lineal...
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Lebeau v. U.S.
...claimed they had never been notified of the opportunity to apply for enrollment as lineal descendents. See Loudner v. United States, 905 F.Supp. 747 (D.S.D.1995), rev'd 108 F.3d 896 (8th In 1998, Congress amended the 1972 Distribution Act through its enactment of the Mississippi Sioux Tribe......
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Loudner v. U.S., No. CIV 94-4294.
...both this Court and the Eighth Circuit Court of Appeals. See Loudner v. United States, 108 F.3d 896 (8th Cir.1997); Loudner v. United States, 905 F.Supp. 747 (D.S.D.1995) (rev'd, 108 F.3d 896 (8th Cir.1997)); LeBeau v. United States, 215 F.Supp.2d 1046 (D.S.D.2002); LeBeau v. United States,......