TURTLE MOUNTAIN BAND OF CHIPPEWA IND. v. United States, Appeal No. 6-72.

• Decision Date: 23 January 1974
• Docket Number: Appeal No. 6-72.
• Citation: 490 F.2d 935
• Parties: TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS et al. v. The UNITED STATES.
• Court: U.S. Claims Court

490 F.2d 935 (1974)

TURTLE MOUNTAIN BAND OF CHIPPEWA INDIANS et al. v. The UNITED STATES.

Appeal No. 6-72.

United States Court of Claims.

January 23, 1974.

COPYRIGHT MATERIAL OMITTED

Glen A. Wilkinson, Washington, D. C., atty. of record for the Turtle Mountain Band of Chippewa Indians; Wilkinson, Cragun & Barker, Frances L. Horn, Washinton, D. C., and Stormon & Stormon, Rolla, N. D., of counsel.

Marvin J. Sonosky, Washington, D. C., for Red Lake and Pembina Bands, and others. Rodney J. Edwards, atty. of record.

Lawrence C. Mills, Chicago, Ill., atty. of record, for Little Shell Bands; Mills & Garrett and William R. Yowell, Chicago, Ill., of counsel.

Jonathan C. Eaton, Jr., Minot, N. D., atty. of record, for The Three Affiliated Tribes of the Fort Berthold Reservation.

Robert E. Fraley, U. S. Atty., Dept. of Justice, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for The United States.

Before DAVIS, SKELTON and KUNZIG, Judges.

ON APPEALS FROM THE INDIAN CLAIMS COMMISSION

DAVIS, Judge:

These interlocutory appeals under the Indian Claims Commission Act concern Indian title to a large area in North Dakota, about 10 million acres along the Canadian border. In the early 19th century, numbers of Chippewas moved westward from their woodland home to the plains area in what is now Minnesota, North Dakota, and parts of Canada. They adapted to life on the plains and pushed back other tribes. Eventually, the flow of white settlement caught up with these plains Chippewas, who were known as Pembinas. In 1863, the Pembina Band of Chippewas ceded to the Federal Government the area (Royce 445) immediately to the east of the lands involved in this claim. By 1875, the Government had compelled a substantial part of the Pembinas, on threat of loss of their annuities from the 1863 cession, to move from the unceded portion (the lands now in dispute) to the White Earth reservation in Minnesota. The remaining Pembinas stayed near the Turtle Mountains, and most of them formed the band known by that name.

After two unsuccessful attempts to negotiate a cession, Congress established the McCumber Commission to acquire this Pembina North Dakota region. This agency negotiated with the Chippewas until Little Shell, the hereditary chief, withdrew along with several others from the negotiations in protest.¹ The local Indian agent selected a "Committee of 32" to represent the Indians, and the negotiations continued, concluding with a pact on October 22, 1892.² After a long delay, Congress amended and approved the agreement on April 21, 1904, 33 Stat. 189, 193, and the Indians approved on February 15, 1905.

The present claim is for fair compensation for the area covered by the McCumber Agreement, which the Commission found to have been acquired in February 1905 (when the Indians confirmed the arrangement). Three Chippewa plaintiffs, the Turtle Mountain Band (Indian Claims Commission Docket 113), the Pembina Band (Docket 246), and the Little Shell Band (Dockets 191 and 221),³ brought suit on this claim, asserting a cause of action under clauses 3, 4, and 5 of section 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a (1946).⁴ All three urge their case on behalf of the same general ancestral Indian group, although they dispute the name to be given it. The Commission determined that this ancestral group (which it called "Plains-Ojibwa") held Indian title to most of the area given over under the Agreement. 23 Ind.Cl. Comm. 315 (1970).

The Chippewa claim before the Commission conflicted to some degree with that of the Three Affiliated Tribes of the Fort Berthold Reservation (Docket 350).⁵ The trial of the two demands was consolidated to the extent of the overlap. After hearing evidence, the Commission divided the overlap area between the Fort Berthold and Chippewa claimants, 25 Ind.Cl.Comm. 179 (1971), but partially modified this decision, in favor of the Chippewas, after rehearing. 26 Ind.Cl.Comm. 336 (1971).

The Turtle Mountain Band, the Pembina Band, and the Government are each dissatisfied with one or another aspect of the Commission's rulings. The Fort Berthold Tribes and the Little Shell Band are content to remain appellees. The appeals raise the following issues: (1) this court's jurisdiction to hear the case; (2) whether Chippewa Indians held aboriginal title to the awarded area at the date of taking; (3) whether the Commission properly allocated the overlap segment between the Chippewa and Fort Berthold claimants; (4) what designation should be given to the ancestral Chippewa landowning entity; and (5) the right of the Little Shell plaintiffs to separate representation. These questions will be taken up in order.

I

After filing an unqualified appeal, the Government has "reluctantly suggested" in its brief that the court lacks jurisdiction to hear the appeals under our Rule 171(a) (2).⁶ The basis for this contention is an order entered by the Commission with respect to the general Fort Berthold land claim. When it decided the over-all area owned by those Tribes — this was after it had initially divided the smaller overlap tract between the Chippewas and the Tribes — the Commission sua sponte decided the date the Government had acquired the Fort Berthold territory. On motion of those Indians, rehearing was directed on the date of that taking. The order noted that neither side (Government or Fort Bertholds) had submitted the issue for decision and that the plaintiff Indians had additional proof to offer on the subject. 26 Ind.Cl.Comm. 326 (1971). This reopening came before any of the present appeals was filed. Defendant argues, accordingly, that no part of the Commission's determination (including that pertaining to the Chippewas, who were not involved in the date of taking of the Fort Berthold lands) was ripe for review, at the time the appeals were filed, because the consolidated cases had already been reopened and there was therefore no settled appealable determination.

The simplest answer lies in the fact that the Commission ended the consolidation and severed the Fort Berthold case, "for the purpose of determining the acreage and fair market value" of their lands, at the time it originally fixed the Fort Berthold taking date — well before the appeals were noted. 25 Ind.Cl.Comm., 179, 214 (1971). This severance was not vacated, expressly or impliedly, by the later order reopening the date-of-taking facet of the Fort Berthold claim, and the Chippewa claimants, as well as the Government, were free to seek review of the Chippewa portions of the previously consolidated, but now separated, cases.⁷

We reject the defendant's point that the reopening of the taking-date for the Fort Berthold region necessarily had the effect (whatever the Commission intended) of sewing all the cases together again. This argument rests on the possibility of double liability on the United States: it is conceivable that in two separate proceedings (this appeal, and the subsequent disposition of the Fort Berthold case),⁸ both Chippewas and Fort Bertholds could establish Indian title to the land now in dispute between them. The Government also says that a modification by the Commission of its earlier finding as to the date of taking could lead to a change in the boundaries of the Fort Bertholds' lands, and that the final area might overlap with the Chippewa claim in some different but now undeterminable fashion.

This specter is not enough to cause us to solder together in this case what the Commission has sundered. It is of course not unusual, in proceedings under the Claims Commission Act, for issues to be tried separately. The system of interlocutory appeals authorized by the Act can result in seriatim disposition of various legal issues in a single claim.⁹ If the parties so will and the Commission acquiesces, one issue, such as the extent of lands taken, can be tried and determined by a process entirely separate from that by which another question, such as the date of taking, is fixed. It follows that, if a party believes that an issue is logically dependent on another (so that one should be resolved first), or if it thinks that two issues are mutually interdependent (so that they should be tried or determined together), it is incumbent upon that side to raise this point before the Commission, or otherwise to give timely notice of its position. We have held that the Government, by failing to raise an issue in proper manner before the Commission, waives its rights to raise that point on appeal. United States v. Fort Sill Apache Tribe of Oklahoma, 480 F.2d 819, 202 Ct.Cl. ___ (1973); Suquamish Tribe of Indians v. United States, 197 Ct.Cl. 775, 777 (1972).

Here, if the extent of the lands aboriginally held by the Fort Bertholds could vary with the date of taking, the need for joint resolution of those questions should have been raised seasonably below. The Government did not, however, tell the Commission, before it initially decided the Fort Berthold claim, that the extent of the taking might well depend upon the date of taking.¹⁰ Similarly, the Government does not contest the relevant land claims of the Fort Berthold Indians on this appeal. The result is that, insofar as our acceptance of jurisdiction of the present appeals creates some risk of double liability for the Government, the predicament is wholly of the Government's own making — either its deliberate choice of strategy or its belated recognition of the interdependence of issues previously deemed separate.¹¹ This is not a situation in which to abort appeals timely and properly taken after the Commission's severance of the Fort Berthold date-of-taking question. Cf. McGhee v. United States, 437 F.2d 995, 194 Ct.Cl. 86 (1971); Seminole Indians v. United States, 455 F.2d 539, 197 Ct.Cl. 350 (1972).¹²

II

The Commission, as we have said, found that a Chippewa entity (which it denominated "Plains-Ojibwa") held Indian title prior to 1905 to the large region...