Sioux Nation of Indians v. United States

• Decision Date: 20 May 1981
• Docket Number: No. 148-78.,148-78.
• Citation: 650 F.2d 244
• Parties: SIOUX NATION OF INDIANS et al. v. The UNITED STATES.
• Court: U.S. Claims Court

650 F.2d 244

SIOUX NATION OF INDIANS et al. v. The UNITED STATES.

No. 148-78.

United States Court of Claims.

May 20, 1981.

Arthur Lazarus, Jr., Washington, D. C., attorney of record, for plaintiff; Fried, Frank, Harris, Shriver & Kampelman, Marvin J. Sonosky, Sonosky, Chambers & Sachse, and William Howard Payne, New York City, of counsel.

Craig A. Decker, Washington, D. C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, COWEN, Senior Judge, and DAVIS, NICHOLS, KUNZIG, BENNETT and SMITH, Judges, en banc.

OPINION

FRIEDMAN, Chief Judge:

This is a motion for attorneys' fees made by Arthur Lazarus, Jr., attorney of record for the Sioux Nation of Indians,¹ on behalf of all the attorneys seeking a fee. The attorneys are requesting $10,595,943, which is 10 percent of the $105,994,430.52 judgment we awarded the Sioux Nation in Sioux Nation of Indians, et al. v. United States, 220 Ct.Cl. ___, 601 F.2d 1157 (1979), aff'd, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980), less a $3,500 retainer previously paid to one of the attorneys. We award the requested attorneys' fees.

I.

A. The claim the attorneys successfully prosecuted in this case grew out of the action of the United States in acquiring the Black Hills portion of the Sioux Reservation in 1877. The Sioux Reservation had been established under the Fort Laramie Treaty of April 29, 1868, 15 Stat. 635 (1869). The facts relating to that acquisition are detailed in our 1979 opinion. We there held that an 1877 statute by which the United States acquired the Black Hills constituted a taking of those lands under the fifth amendment, for which the Sioux were entitled to receive just compensation.

B. This case began in a suit the Sioux filed in this court in 1923, pursuant to a 1920 special jurisdictional act authorizing us to adjudicate Sioux claims against the United States "under any treaties, agreements, or laws of Congress." Act of June 3, 1920, 41 Stat. 738. The suit alleged that the United States had taken the Black Hills from the Sioux without paying them just compensation. Almost 20 years later we dismissed the suit, holding that under the special jurisdictional act the Sioux were "not entitled to recover from the United States as for a `taking' or `for the misappropriation of any lands of said tribe.'" Sioux Tribe of Indians v. United States, 97 Ct.Cl. 613, 666 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992, 87 L.Ed. 1155 (1943).

Following the enactment of the Indian Claims Commission Act in 1946, 60 Stat. 1049, 25 U.S.C. § 70 et seq., the Sioux, in 1950, filed with the Indian Claims Commission the same Black Hills claim. They alleged that the United States had paid them an unconscionable consideration and had not engaged in fair and honorable dealings, which were two of the types of claims over which the Commission had jurisdiction. 25 U.S.C. § 70a(3) & (5). The Sioux, however, did not allege that the government's acquisition of the Black Hills constituted a fifth amendment taking, even though the Commission also had jurisdiction over taking claims. 25 U.S.C. § 70a(4).

In 1954, the Commission dismissed the petition on the ground that the Sioux had failed to prove their case. Sioux Tribe v. United States, 2 Ind.Cl.Comm. 646 (1954). On the basis of lengthy findings (id. 646-70), the Commission concluded

that there is no basis for a claim or claims by the plaintiffs that the compensation provided for the Indians under the Act of February 28, 1877, was inadequate or unconscionable, or that the defendant was guilty of unfair or dishonorable dealings, or failed in its duty to the plaintiff Indians.

Id. 682-83.

In 1956, we unanimously affirmed the Commission's dismissal of the Sioux's claims. 146 F.Supp. 229.

All of this prior litigation was handled by attorneys other than those now seeking fees.

C. Following our affirmance of the Commission's dismissal of the claim, three tribes of the Sioux approached two of the present attorneys to take over the litigation. Even before the new counsel were formally retained, they assisted the Sioux in preparing motions to extend the time for seeking a rehearing of, or other relief from, our November 1956 decision, to prevent that ruling from becoming final. The attorneys entered into representation contracts with eight tribes of Sioux, who acted in a representative capacity for the Sioux Nation. All of these contracts were for an initial term of 10 years. All of them have been extended — three to 1982, one to 1981, three to 1980, and one to 1977. The last has not been extended past that time. All of the contracts initially were approved in 1957 and 1958 by appropriate officials of the Department of the Interior. All of the contracts initially provided that the attorneys would receive a fee not exceeding 10 percent of any amount recovered; one of them subsequently was amended to provide for a flat fee of 10 percent.

In October 1957, the attorneys filed a motion to vacate our 1956 decision, which the government vigorously opposed. In November 1958, we remanded the case to the Commission to determine whether proof should be reopened and, if so, to reconsider its prior decision. Two weeks later, the Commission reopened the proof.

Almost 4 years later, in November 1960, the Commission granted the plaintiffs' request to amend their petition to include a claim for "just compensation under the Fifth Amendment."

After procedural skirmishing, the government, in June 1961, moved to dismiss the case for failure to state a claim upon which relief could be granted. The Commission denied that motion in January 1962. The government did not answer the amended petition until the Commission directed it to do so in May 1966.

Between 1962 and 1968, this case remained largely dormant while another Sioux case was being tried and briefed. During that period, however, the attorneys conducted extensive factual and legal research in the National Archives, the Library of Congress, and State historical societies. In February 1968, the attorneys filed a motion for an order defining the questions for determination. After oral argument, the Commission set a briefing schedule on the three questions the attorneys framed. Both sides filed further briefs on the value of the Black Hills and the consideration the government paid for that land.

A trial on the issue of valuation was held in November 1969 and May 1970, at which both sides presented expert witnesses and extensive valuation reports. After proof was closed, both sides filed detailed proposed findings of fact and supporting briefs; the plaintiffs' proposed findings totalled 194 pages and a supporting brief 48 pages, and the government filed a combined document totalling 183 pages. The plaintiffs' attorneys filed a 117-page document in reply.

There was further procedural skirmishing between the plaintiff and the government. In December 1973, the Commission heard oral argument, and rendered its decision in February 1974. 33 Ind.Cl.Comm. 151. The opinion and findings comprised 212 pages.

The Commission held (1) that our 1942 decision was not res judicata on the taking issue; (2) that the government's acquisition of the Black Hills in 1877 constituted a taking for which the Sioux were entitled to just compensation, including simple interest at 5 percent. The Commission found that the value of the land taken was $17,553,484. The Commission further ruled, however, that the United States was entitled to offset against the taking award the value of the food, rations, and provisions it had furnished to the Sioux pursuant to the 1877 Treaty.

The plaintiffs' attorneys concluded that this offset probably would reduce the net award to the Sioux to approximately $4 to $6 million. They decided that the only way to secure a larger award for the Sioux would be to obtain an amendment of the Indian Claims Commission Act to exclude these items from the category of allowable offsets.

During the next 6 months plaintiffs' attorneys engaged in extensive efforts in Congress and with the President's advisors on Indian affairs. In the fall of 1974, Congress amended the Indian Claims Commission Act to bar offsets for "food, rations and provisions," and President Ford signed the bill. Act of Oct. 27, 1974, Pub.L.No.93-494, 25 U.S.C. § 70a (1976).

At the same time that these activities were taking place in Congress, the government's appeal from the Indian Claims Commission award went forward before this court. Lengthy briefs were filed, and we heard oral argument. In June 1975, we held that our 1942 decision was res judicata on the Sioux's claim for just compensation, thereby reversing the Commission determination that the Sioux were entitled to interest. We did, however, affirm the Commission's award of approximately $17.5 million for the value of the land made under the dishonorable dealings provision of the Indian Claims Commission Act. See United States v. Sioux Nation of Indians, 207 Ct.Cl. 234, 518 F.2d 1298, cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975).

For the second time, the attorneys sought recourse in Congress. Four days after the denial of certiorari, Senator Abourezk introduced a bill, drafted by the attorneys, authorizing us to hear the Sioux case without regard to the defenses of res judicata or collateral estoppel. Considerable problems were encountered in Congress, and extensive efforts again were necessary. The bill finally was signed into law in March 1978, 27 months after it was introduced. Act of March 13, 1978, Pub.L.No. 95-243, 25 U.S.C. § 70s (Supp. II 1978).

After extensive briefs were filed, this court en banc (two judges dissenting) affirmed the Commission's decision that the 1877 Act had effected a taking of the Black Hills. Sioux Nation of Indians v. United States, 220 Ct.Cl. ___, 601 F.2d 1157 (1979). The result was an award of just compensation to the Sioux of $105,994,430.52. This was...