Opposition Brief — Oglala Sioux Tribe v. United States

| ras ae

; SUPreme Court, U.S,

FILED

APR 21 1969

~~

?)

No. 88-1380

In the Supreme Court of the Gnited

OCTOBER TERM, 1988

THE OGLALA SIOUX TRIBE AND

THE ROSEBUD SIOUX TRIBE, PETITIONERS

Vv.

THE UNITED STATES AND

THE SIOUX TRIBE OF INDIANS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

JACQUES B. GELIN

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESEN?TED

Whether the court of appeals correctly concluded that

counsel for the Sioux Tribe of Indians properly entered in-

to a factual stipulation with government counsel concern-

ing the amount of certain offsets to the Sioux’s damage

award, or whether that stipulation was instead a settle-

ment agreement that the various Sioux Tribes had to

ratify.

(I)

TABLE OF CONTENTS

Page

ra aes boas oh wade veka des l

ee ace ted ake hes es seens |

ee re a a asa skys wneucsaacess 2

a ws yea) «abe as caedesv hd ences 6

IE hs lS 2 8

TABLE OF AUTHORITIES

Cases:

Cheyenne River Sioux Tribe v. United States, 806 F.2d

1046 (Fed. Cir. 1986), cert. denied, 482 U.S. 913

ee as shed xd deed dee eae 3,4

Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir.

at in 7

Sioux Tribe v. United States, 42 Indian Cl. Comm’n 214

SS SC ee 2

Sioux Tribe v. United States, 7 Cl. Ct. 481 (1985) ....... 3

United States v. Sioux Tribe, 616 F.2d 485 (Ct. Cl.), cert.

I 2

Rules:

yy yaa bude casssacsneuues

I I

(III)

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 88-1380

THE OGLALA SIOUX TRIBE AND

THE ROSEBUD SIOUX TRIBE, PETITIONERS

¥.

THE UNITED STATES AND

THE SIOUX TRIBE OF INDIANS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-16a)

is reported at 862 F.2d 275. The opinion of the Claims

Court (Pet. App. 17a-40a) is reported at 14 Cl. Ct. 94.

JURISDICTION

The judgment of the court of appeals (Pet. App. 50a)

was entered on November 23, 1988. A rehearing petition

was denied on December 28, 1988 (Pet. App. Sla). The

petition for a writ of certiorari was filed on February 17,

1989. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

1. In 1950, Sioux Indians filed a claim with the Indian

Claims Commission seeking compensation for the lands in

North and South Dakota, Nebraska, Wyoming, and Mon-

tana that the United States acquired pursuant to an 1868

treaty. The claim was filed in the name of the Sioux Tribe

of Indians, which has not existed as an entity since 1890,

as the representative of the eight present-day Sioux tribes,

each of which has its own reservation. The Commission

concluded in 1978 that the land was worth more than $45

million at the time it was ceded to the federal government

and that the government’s payment to the tribe had

therefore been deficient by nearly $44 million. The Com-

mission completely rejected the government’s claims for

offsets, which totalled $65 million. It accordingly ordered

the government to pay the Sioux $43,940,700. Sioux Tribe

v. United States, 42 Indian Cl. Comm’n 214 (1978). The

Court of Claims sustained the Commission’s evaluation of

the lands, but remanded the case to its trial division for a

determination of the government’s claims for offsets.

United States v. Sioux Tribe, 616 F.2d 485, cert. denied,

446 U.S. 953 (1980).

On remand, the Tribe’s attorney, Arthur Lazarus,

moved for leave to withdraw as counsel of record for the

Oglala Sioux Tribe, one of the two petitioners here,

because that tribe had advised him that it no longer

wanted a money judgment, but instead wanted its

ancestral homelands returned to it. After Joe American

Horse, the Oglala tribe’s vice-president, contacted the trial

judge concerning the motion (Pet. App. 41a), the judge

wrote to American Horse in December 1980 explaining

that “if the Oglala Sioux Tribe wishes to change their at-

torney in this litigation, they must take affirmative action

by filing with me a motion for substitution of attorney.”

3

Id. at 42a-43a. The Oglala tribe did not do so, and the

court accordingly denied the motion without prejudice.

Id. at 37a.

Proceedings then continued in the Claims Court. It

issued a series of decisions concerning the offsets, in-

cluding a decision generally limiting the government’s off-

set claims to expenditures for agricultural and educational

assistance made in the late 1800s and a decision allowing

the government to offset $2.7 million on account of

federal land known as the Ponca land that was in-

advertently incorporated into a reservation. Sioux Tribe v.

United States, 7 Cl. Ct. 481 (1985). Although relatively lit-

tle remained to be decided by 1985, the parties were unable

to settle because the Oglala tribe and some of the other

tribes refused to accept any settlement that did not provide

for the return of their ancestral homelands. Pet. App. 22a.

Because of the impasse, the trial court in 1985 took the

unusual step of entering judgment against the United

States in the amount of $39,749,700, the amount of its

latest unaccepted offer, without giving notice to the

parties or receiving briefs on the propriety of its action.

See ibid.

After two of the eight tribes (the Oglala and Cheyenne

River tribes) decided to appeal, Lazarus moved for leave

to withdraw as their counsel. The motion was denied

without prejudice after the two tribes failed to respond to

it. The Federal Circuit then reversed the Claims Court’s

decision. Cheyenne River Sioux Tribe v. United States,

806 F.2d 1046 (1986), cert. denied, 482 U.S. 913 (1987).

“Unless a case is settled with the consent of the parties,”

the court stated, “the duty of the court is to determine the

merits and enter judgment accordingly. Where, as here,

the court adopts a settlement as its judgment without con-

sideration of the relevant evidence * * *, the court has

failed to perform its obligations to determine the case on

4

the basis of the evidence.” 806 F.2d at 1050. The court

added that a trial, which would require “the introduction

into evidence of vast quantities of details and minute

records going back for more than a century,” might not be

needed on remand. /d. at 1053. Instead, the court sug-

gested, “the parties may be able to stipulate the total dollar

amount of various categories of offset to which the

government is entitled.” /bid.

On remand, the parties did just that. In March 1987, a

status conference was held at which representatives of the

eight tribes, including American Horse, who had become

president of the Oglala tribe, were advised of the court of

appeals’ decision. Government counsel and Lazarus then

entered into a stipulation concerning the outstanding fac-

tual issues with respect to the government’s claimed off-

sets. The stipulation “provided, in substance, that if the

Court determined the listed categories of offsets to be

allowable as a matter of iaw, then the dollar amounts of

those offsets were agreed upon by the parties tc total

$3,703 ,892.98 as a matter of fact.” Pet. App. 33a-34a. The

court, which had previously ruled that $2.7 million of the

claimed offsets were allowable as recovery for the Ponca

land, then ruled that the additional $1 million in offsets

were allowable as a matter of law as well. Jd. at 35a. It ac-

cordingly entered judgment for $40,245,807.02 in July

1987. Id. at Sa.

2. Two months later, petitioners, the Oglala aid

Rosebud tribes, filed a motion for relief from judgment

under Claims Court Rule 60(b), which parallels Rule 60(b)

of the Federal Rules of Civil Procedure. The two tribes

contended that the stipulation of facts that Lazarus had

entered into was really a settlement that he was not

authorized to accept. The six other tribes did not join the

motion.

5

The Claims Court denied the motion. Pet. App.

17a-40a. It first concluded that the stipulation of facts was

not a settlement agreement. Rather, the court explained,

the stipulation merely eliminated the need for a trial of

factual questions regarding the amount of the offsets that

would be allowed for the government’s educational and

agricultural assisiance to the Sioux in the late 1800s if the

court determined that the offsets were permissible as a

legal matter. Jd. at 35a. The court further concluded that

counsel for the Sioux had authority to enter into the

stipulation because, while Lazarus had twice moved to

withdraw as counsel, neither tribe had retained separate

counsel in response. The court concluded that “[i]t is too

late in the game to do this now.” Jd. at 38a.

3. A divided court of appeals affirmed. Pet. App.

la-l16a. Noting that the decision whether to grant a motion

for relief from judgment is discretionary, the court con-

cluded that “[t}he Claims Court did not abuse its discre-

tion in denying the appellant tribes’ motion for relief from

the judgment awarding the Sioux Tribe of Indians approx-

imately $40 million.” Jd. at 8a.

With respect to petitioners’ claim that the stipulation

was really a setthkement agreement, the court of appeals

“agree[d] with the Claims Court that entering into such a

stipulation of facts was ‘exactly the type of determination

(i.e., analysis of the evidence) that attorneys can under-

take “as part of the normal conduct of litigation without

the necessity for obtaining the approval of their clients.” ’

14 Cl. Ct. at 103 (citing Cheyenne River Sioux Tribe, 806

F.2d at 1053). See Lipp v. National Screen Serv. Corp.,

290 F.2d 321, 322 (3d Cir.), cert. denied, 368 U.S. 835

[1961].” Pet. App. 9a. The court noted that counsel had

also entered into a joint motion for entry of judgment,

and held that that circumstance did not transform the

stipulation of facts into a settlement agreement. /d. at 10a.

6

The court also agreed that “counsel of record for the

Sioux Tribe of Indians had authority to enter into the

Stipulation of Facts.” Pet. App. 10a. The court noted that

Lazarus’s contracts with the two tribes had lapsed by the

early 1980s, but also noted that his motions to withdraw as

their counsel had been ignored by the tribes. /d. at

10a-lla. The court added that “for more than 30 years

counsel vigorously and effectively pressed this case on

behalf of the Sioux Indians.” Jd. at 10a. It concluded: “We

agree with the Claims Court that in these circumstances,

the appellant tribes were required to do something more

than not renew their attorney’s contracts if they wished to

terminate their attorneys’ authority to represent them.

They should affirmatively and formally have advised the

attorneys that they were terminating the attorney-client

relationship, and then should have promptly moved in the

Court of Claims to substitute new counsel to represent

them.” Jd. at Lila.

Judge Newman, dissenting, concluded that the stipula-

tion of facts was, in reality, a settlement agreement. In her

view, under the facts of this case, including “two resolu-

tions by the Oglala Sioux Tribal Council informing

counsel that it no longer sought money damages. but

wanted to pursue legal and legislative strategies to gain

return of ancestral lands,” Lazarus did not have authority

to enter into the stipulation. Pet. App. 15a.

ARGUMENT

Contrary to petitioners’ contentions (Pet. 11-15), this

case presents no issue as to whether counsel may settle a

case without a client’s authorization. It is agreed that

counsel may not do so. Rather, the issue on which the

court of appeals divided was whether the stipulation of

facts that counsel entered into was, in reality, under the

7

unique facts of this case, a settlement agreement. In our

view, the Claims Court and the court of appeals correctly

concluded that the stipulation was not a settlement. The

stipulation merely resolved minor questions as to the

amounts of certain offsets, which totalled about 2'2% of

the final judgment. Moreover, the stipulation was effec-

tive only if the Claims Court held that the offsets were

allowable as a matter of law. In any event, the fact-specific

question whether the stipulation of facts here was really a

settlement agreement does not warrant review by this

Court.

That is particularly so since the two petitioning tribes

had many opportunities to retain separate counsel prior to

entry of the final judgment, but failed to do so. The

history of this litigation shows that after many years of

service Lazarus twice moved to withdraw as counsel for

the Oglala tribe. Despite a letter from the Claims Court in

1980 specifically advising the tribe that it would have to

move to substitute counsel if it did not want to be

represented by Lazarus (Pet. App. 42a-43a), the tribe did

nothing. After the court of appeals issued its 1987 opinion

Suggesting that a trial might be avoided if counsel

stipulated to certain facts, and the Claims Court held a

Status conference advising the tribes of that decision, they

still did nothing. As the Claims Court stated, “for seven

years preceding the judgment of July 30, 1987, the Oglala

Sioux Tribe had an open invitation from this Court to

substitute counsel, an invitation which the Tribe rejected.”

Id. at 37a. Only after final judgment had been entered did

the two tribes that have petitioned retain separate counsel.

The Claims Court surely did not abuse its discretion under

the facts of this case by concluding that it was too late at

that point for them to do so, whether or not their contracts

with Lazarus had lapsed. Ohntrup v. Firearms Center,

Inc., 802 F.2d 676 (3d Cir. 1986) (if parties to a lawsuit

fail to substitute counsel, a court may require existing

counsel to continue their representation even after they

have been discharged). If the two petitioning tribes did not

want Lazarus to represent them, and to engage in ordinary

activities on their behalf such as agreeing to factual

stipulations, they should have retained separate counsel

earlier, as the Claims Court had instructed.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

JACQUES B. GELIN

Altorney

APRIL 1989

vy U.S. GOVERNMENT PRINTING OFFICE: 1989—241-699/00221

?

ee

;