# Sioux Nation of Indians v. United States > United States Court of Claims · June 13, 1979 · 601 F.2d 1157 URL: https://www.frixlaw.com/law-library/cases/8596558 ## Case - **Full name:** SIOUX NATION OF INDIANS v. United States - **Court:** United States Court of Claims - **Decided:** June 13, 1979 - **Citations:** 601 F.2d 1157; 220 Ct. Cl. 442; 1979 U.S. Ct. Cl. LEXIS 165 - **Precedential status:** Published - **Opinion:** Concurrence by Nichols - **Judges:** Bennett, Cowen, Davis, Friedman, Kunzig, Nichols, Smith - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8596558 ## How later opinions describe it (automated extraction) - affirming the ICC in large part ## Opinion text NICHOLS, Judge, concurring: I concur in the result and in all of the court’s opinion except part III D, which discusses Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). With all respect, that part mistakes the holding in Lone Wolf and ignores a fundamental proposition in the law of eminent domain. I agree that defendant’s reliance on Lone Wolf is also mistaken and that it does not establish that the acquisition of the Black *470 Hills by the 1877 Act did not constitute a taking. But the reasons why this is so are quite other than those the court states. Lone Wolf is of vital importance in respect to the claim before us. It was cited, and, as this court then thought, faithfully followed in Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613, 670 (1942), cert. denied, 318 U.S. 789 (1943), where the discussion of it covers most of four pages. In United States v. Sioux Nation, 207 Ct. Cl. 234 , 518 F.2d 1298 , cert. denied, 423 U.S. 1016 (1975), defendant relied on the earlier decision as res judicata. We concluded that the interpretation of Lone Wolf there involved was fundamental to the decision and under the doctrine of res judicata, could not be challenged by us. We carefully left open the question whether, if untrammelled by res judicata, we would have construed Lone Wolf the same way. I, myself, would not have, and would be happy, now, to join in giving it a different and more sustainable construction, as the Congress now leaves us free to do. If, however, Lone Wolf holds what the 1942 Court of Claims thought it held, it still stands as an insuperable bar to the claim. To dispose of it, the Congress would have to excuse us from the duty of following Supreme Court decisions, which it has not yet done. The day Lone Wolf was handed down, January 5, 1903, might be called one of the blackest days in the history of the American Indian, the Indians’ Dred Scott decision. To the practical statesman, it appeared to say the Indian tribes had acquired no rights by treaty which the Congress was bound to respect. Certainly no U. S. Supreme Court post 1938 would make such a decision, and many decisions, both earlier and later, give Indian treaties an entirely different degree of respect. But the case must be carefully read to avoid making it worse than it is. It has never been expressly overruled. We and other constitutionally "inferi- or” courts are not allowed to overrule Supreme Court decisions the Supreme Court has not itself expressly overruled. United States v. Mason, 412 U.S. 391 (1973). We are not required to praise them, nor to extend them beyond their precise holdings. We must turn to Lone Wolf , therefore, as the 1942 Court of Claims did and the present court purportedly does *471 (though to opposite results) and see what Lone Wolf really holds. Incidentally, since this court is deciding that the 1942 court was in error in its application of Lone Wolf , one might have expected some discussion of the 1942 decision and how it fell into the error it did. The 1942 decision clearly treated Lone Wolf as fully applicable as a precedent to a fifth amendment claim for just compensation, and imputed to that case a holding that in managing Indian property, Congress might exchange lands for money at any rate it chose, without its being an instance of uncompensated expropriation. Many takers, including the United States, have sovereign immunity to unconsented suits. Naganab v. Hitchcock, 202 U.S. 473 (1906). Thus the owner of property taken by the United States has no remedy by suit at law for just compensation, except for the consents it has given. These include the 40 U.S.C. § 257 procedure for condemnation of land, and the Tucker Act, now 28 U.S.C. § 1491 . Where some such consent is not applicable, the landowner has no remedy except to resort to equity to enjoin the taking until just compensation, or a means of adjudicating just compensation, is provided. Such suits are not so common now but in the days when consents by our states and our nation were not so sweeping as they now are, they were very cómmon. Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919), is an example of a successful injunction suit by Indians against uncompensated expropriation of their lands. Sec II Nichols, Eminent Domain (2d ed. 1921) § 472, Injunction Against Unlawful Taking or Damage Under Color of Eminent Domain. Hurley v. Kinkaid, 285 U.S. 95 (1932) may be taken as an example of an injunction suit where the government threatened to take but failed to provide just compensation, and that landowner lost in the Supreme Court because, unlike the Indians, he had a remedy at law under the Tucker Act. When we realize that the Tucker Act as it then was, 24 Stat. 505 , did not consent to suits by Indian tribes "founded on the Constitution” we will see that plaintiff Lone Wolf and co-plaintiffs were in precisely the situation for which the injunctive remedy was the only one available. They alleged that an Act of Congress infringed their property interests, but made no provision for just compensation, and *472 general legislation such as the Tucker Act at that time made none. Thus it was irrelevant whether plaintiffs would have preferred the status quo, or just compensation for the altering of it: in either case their sole remedy was in equity. They clearly did invoke the fifth amendment, and they clearly did assert the government was taking, or threatened to take, their property. They did not assert any other ground why the challenged statute was unconstitutional. That they said the statute would deprive them of their lands "without due process of law” instead of "without just compensation,” is a semantic variation that will not suffice to alter the entire nature of the Lone Wolf proceeding in the manner this court would like. They were not asserting a procedural error; in those days due process had substantive applications. Shortly before Lone Wolf , the Supreme Court held that the due process clause of the fourteenth amendment imposed on the states an obligation to pay just compensation in taking cases, despite its not including any specific just compensation clause. Chicago, Burlington and Quincy R.R. v. Chicago, 166 U.S. 226 (1897). This case overruled Davidson v. New Orleans, 96 U.S. 97, 105 (1877), which had limited the application of the fourteenth amendment to procedural due process, so far as concerned state eminent domain. We must understand these matters to understand Lone Wolf . Lone Wolf is purely and simply a holding that the fifth amendment does not require just compensation to the Indians in the situation then before the Court. Thus our 1942 court was correct in viewing Lone Wolf as a precedent fully as applicable in a consented suit for just compensation, such as they had before them, as it would be in an injunction suit in the absence of the necessary consent. Lone Wolf was also viewed as an applicable precedent as to a just compensation claim as late as Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 182 Ct. Cl. 543 , 390 F.2d 686 (1968), so far as applied to instances where the government made a "good faith effort” to give the Indians the full value of their land, though it was not judicially ascertained as the fifth amendment, if applicable, would have required. In such a case there was no taking even if the compensation was insufficient. In instances where we could see no "good faith effort,” Lone Wolf was *473 not viewed as a governing precedent, but no such reason for distinguishing it was suggested, as is now asserted. We quoted Lone Wolf to the effect that a mere change in the form of investment of Indian tribal property from land to money was not a taking. If Lone Wolf was not applicable to just compensation claims at all, much cerebral effort was wasted on it in the Fort Berthold case. Lone Wolf did undoubtedly say that when Congress "purported” (the Court’s word, at p. 568) to give an adequate consideration in any such exchange, it was not permissible to go behind its fact finding to ask if the consideration really was adequate, nor could the Court inquire into the evil motives that might be secretly lurking in congressional breasts. The latter proposition has not changed in recent times. Thus in United States v. O’Brien, 391 U.S. 367 (1968), it was held that when it is necessary for construction of legislation to determine its intent and purpose, that is to be done by resort to sources such as committee reports, where the Congress makes its purpose manifest. It is not permissible to strike down legislation "on the basis of an alleged illicit legislative motive.” Id. at 383 , citing cases. In that case the alleged illicit motive was assertedly proved from member’s speeches on the floor, which the Court held could not be imputed to the whole body. Plaintiff O’Brien did not even assert that it might be done by their off-the-record remarks. The meaning both of Lone Wolf and of O’Brien is that if the Congress spreads evidence on the public record, i.e., "purports” to act in a fair and constitutional manner, this may not be refuted by unsupported inference, by gossip, or by hearsay. As a matter of history, it may be noted that the Indians in Fort Berthold, supra, took this court’s "good faith effort” standard as an invitation to impugn the good faith of Congress in further remanded stages of the same case. The Indian Claims Commission rejected such evidence, 28 Ind. Cl. Comm. 264 (1972), as did we on appeal. Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 204 Ct. Cl. 831 , cert. denied, 419 U.S. 901 (1974). So the "good faith effort” standard must be applied with respect to the legislative record as publicly disclosed in the statutory language, committee reports, etc. The "good faith *474 effort” standard is met in Lone Wolf , where the record shows that the Indians’ complaints were considered by Congress and that an effort was made to meet them half way, the deal originally proposed for the Indians being materially improved in the final act. In long subsequent Indian Claims Commission proceedings it was held that under the legislation the government acquired at 93.3 cents an acre land worth $2 an acre. United States v. Kiowa, Comanche and Apache Tribes, 143 Ct. Cl. 534 , 163 F. Supp. 603 (1958) cert. denied, 359 U.S. 934 (1959). However, in Fort Berthold, supra, there was likewise a gap between what the United States paid and the Commission determined; a greater one than in Lone Wolf . So it is clear the occurrence of a "good faith effort” is not to be tested by the congruence of the amount paid with the amount subsequently found by hindsight as what should have been paid. In Lane v. Pueblo of Santa Rosa, supra, at 113, the Supreme Court said: The defendants assert with much earnestness that the Indians of this pueblo are wards of the United States— recognized as such by the legislative and executive departments — and that in consequence the disposal of their lands is not within their own control, but subject to such regulations as Congress may prescribe for their benefit and protection. Assuming, without so deciding, that this is all true, we think it has no real bearing on the point we are considering. Certainly it would not justify the defendants in treating the lands of these Indians — to which, according to the bill, they have a complete and perfect title — as public lands of the United States and disposing of the same under the public land laws. That would not be an exercise of guardianship, but an act of confiscation. * * * [Footnote omitted, cites Lone Wolf v. Hitchcock, with other cases.] In a consented suit, before Lone Wolf , the Supreme Court held the government accountable for selling to homesteaders land granted by treaty to Indians. New York Indians v. United States, 170 U.S. 1 (1898); 173 U.S. 464 (1899). Lone Wolf is not and never was to be read as sanctioning any arbitrary move the Congress may choose to make with respect to property rights of Indians created by an Indian treaty. It sanctions, as not violative of the fifth amend *475 ment, only such moves as are "purported” (i.e., shown by the published record) to provide an "adequate consideration” in any exchange of lands for anything else. I think this court in 1942 failed to note this limitation on the scope of the Lone Wolf holding and thus it committed error. The error does not bind us by res judicata, and I think the new analysis we now make, in the parts of the opinion I join, reveals a situation where Congress did not "purport” to provide "adequate consideration,” nor was there any meaningful negotiation or arm’s-length bargaining, nor did Congress consider it was paying a fair price. The case is not one we can say the Lone Wolf Court would deem no violation of the fifth amendment. It was never before the Court and we cannot tell how it would have viewed the case. The congressional decision fails the "good faith effort” test that we enunciated as explanatory of Lone Wolf . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8596558. Public record. Not legal advice.