Petition — Sioux Nation of Indians v. United States

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

we yan MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. 75-456 ‘

SIOUX NATION OF INDIANS; the SIOUX TRIBE OF

THE ROSEBUD INDIAN RESERVATION, South Dakota;

the SIOUX TRIBE OF THE STANDING ROCK INDIAN

RESERVATION, North and South Dakota; the SIOUX

TRIBE OF THE PINE RIDGE INDIAN RESERVATION,

South Dakota; the SIOUX TRIBE OF THE CROW CREEK

INDIAN RESERVATION, South Dakota; the SIO!NX

TRIBE OF THE LOWER BRULE INDIAN RESERVA-

TION, South Dakota; the SIOUX TRIBE OF THE CHEY-

ENNE RIVER INDIAN RESERVATION, South Dakota;

the SIOUX TRIBE OF THE SANTEE INDIAN RESER-

VATION, Nebraska; and the SIOUX TRIBE OF THE FORT

PECK INDIAN RESERVATION, Montana, each for itself’

and in a representative capacity on behalf of the SIOUX

TRIBE or NATION,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

ARTHUR LAZARUS, JR.

600 New Hampshire

Avenue, N.W.

Washington, D.C. 20037

Of Counsel: MARVIN J. SONOSKY

HOWARD PAYNE 2030 M Street, N.W.

aan Washington, D.C. 20036

September 22, 1975 Attorneys for Petitioners.

Washington, O.C. + THIEL PRESS + (202) 638-4521

(2)

Page

TABLE OF CONTENTS mene

CPEPe DEE occ ce ceeeeeececeeveannnecveades 2

ts. .oeccces OC CCS EN EROS AEES SME 2

ee ee ee ee 2

CE, po wa ec becesebceecnc cs 64bus 4

STATEMENT OF THE CASE .. ccc cccccccccsccces 5

Sb. ee I Ge PE OU ccc cence rss cceceen 6

i, ee eee ee eS, gg Coe ewes ececcene 8

Ey SU SE cece cee ha besneescuceceves 11

D. Proceedings before the Commission ............. 12

ee ee ae ae ee eae 15

REASONS FOR GRANTING THE WRIT

I. The holding of the court below rejecting the

Sioux Fifth Amendment claim on grounds of

res judicata is wrong, and allowing that deci-

sion to stand will perpetrate a grave miscarriage

SP See tee Cl esha ee ae eee 6 86 Ok Oe 16

Ii. The court below should not have invoked res

judicata to deny petitioners a decision on the

merits of the Black Hills claim given the ambig-

uity of its 1942 opinion, the failure of the

United States to plead or prove res judicata

as a defense, and the shameful course of the

Government’s conduct towards the Sioux

PE oc we ce ee ee sce seers eeeereseeceses 22

GUNES cos sc cece ese cas eeseerecseseoenes 25

App.

APPENDICES Page

Re ND 6 8666 6660S 666 eee ees se séenion l

B. Excerpts from opinion of Indian Claims

Pe rr ee eee ee ee 19

C. Excerpts from Treaty of April 29, 1868 and Act

fg, I a a oa a ee 65

(it)

App.

Page

D. War Department correspondence, November 1875 ....-- 70

E. Statement by the President, October 29, ee 73

TABLE OF AUTHORITIES —

Cases:

Carpenter v. Shaw, 280 U.S. 363 (1930).......--+++++: 23

Choate v. Trapp. 224 U.S. 665 (1912) ........+ ++ ees 23

Commissioner v. Sunnen, 333 U.S. 591 (1948) .........- 24

Confederated Salish and Kootenai Tribes v. United

States, 193 Ct. Cl. 801, 437 F.2d 458 (1971) ........ 21

Heiser v. Woodruff, 327 U.S. 726 (1946) .......---++- 24

Kauffman v. Moss, 420 F.2d 1270 (3 Cir. 1970),

cert. denied 400 U.S. 846 (1970)... ..-... 622s ees 23

Klamath and Modoc Tribes v. United States, 193

Ct. Cl. 670, 436 F.2d 1008 (1971) ....- 2-2 ese eee 22 |

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). . 15, 16, 17, 20

Northern Oil Co. v. Socony Mobil Oil Co., 368

F.2d 384 (2 Cir. 1966)... 0.2... ee eee eer erence 23

Seminole Nation v. United States, 316 U.S. 286

(BOER). ccccccccensccccsescccecesseresecee 23

Shoshone Tribe v. United States, 299 U.S.

476 (1987)... ccccccccccccccccccess sees 18

Sioux Nation of Indians v. United States, 33 Ind.

Cl. Comm. 151 (1974)... 2.222 eee eee eee 2, 8, 9, 13

Sioux Tribe of Indians v. United States, 97 Ct. Cl.

613 (1942) cert. denied 318 U.S. 789 (1943)

AS EEA 8, 11, 12, 17, 18, 19, 20, 21, 22, 23

Sioux Tribe of Indians v. United States, 146 F. Supp.

229 (Ct. Cl. 1956), 182 Ct. Cl. 912 (1968) ......6- 12, 13

Sioux Tribe v. United States, 205 Ct. Cl. 148, 2

500 F.2d 458 (1974). 1... 2. ee ee ee eee eee eens 5, 12

(112)

Cases, continued:

Sioux Tribe v. United States, 2 Ind. Cl. Comm

RSET IE OF EP ek Sire ne ir. rc arg ee eee

Spilker v. Hankin, 188 F.2d 35 (D.C. Cir. 1951) ........

Three Affiliated Tribes of the Fort Berthold Reser-

vation v. United States, 182 Ct. Cl. 543 (1968) .......

United States v. Creek Nation, 295 U.S. 103 (1935)

United States v. International Bldg. Co., 345 U.S.

502 (1953)

United States v. Klamath and Moadoc Tribes, 304

U.S. 119 (1938)

United States v. United States F. & G. Co., 309

CE SG ae alate ary ie eens

Universal Constr. Co. v. Fort Lauderdale, 68 So.2d

366 (Fla. 1953)

Winnebago Tribe of Indians v. United States, 100

Ct. Cl. 1 (1942)

fl Me oe a Oo oe ee ee oe oe ee oe ae a ea a

Tew enw Ce Rit 6.7 8S Cn 6 4 be 6 a we ae ee Se

2 2 ae £2 2 eo. 2 6.9 £89.98 BO 6.8 6 6 os. 6 aoe 26S

Treaties and Statutes:

Ret of Miavch 3, 1665 (0F Seat. FOB) ... ccc ccc ccsess

Act of August 15, 1876 (19 Stat. 176)............. 10,

Act of February 28, 1877 (19 Stat. 254)

4, 6, 8, 11, 12, 13, 15, 16, 17, 18, 20,

Act of March 3, 1887 (24 Stat. 505) ................

Act of October 27, 1974 (Public Law 93-494,

ee 60 Coad aus 64 bs CaS ore Reena 14,

Indian Claims Commission Act of August 13,

PE scones cuseeee vee dss 3, 5, 14,

Sioux Jurisdictional Act of June 3, 1920 (41

Stat. 738)... 2, 3, 4, 11, 12, 15, 16, 18, 20, 21, 23, 24,

Treaty of April 29, 1868 (15 Stat. 635)

ee eeesocesecer 4,6, 7, 8, 9, 10, 11,

ER een ccd Uleccedeuwieeukcoes

Page

(iv)

Treaties and Statutes, continued: IN THE

Mare SUPREME COURT OF THE UNITED STATES

28 U.S.C. §1255(1). 0... ee eee eee eee eee eens : a

28 U.S.C. §2101(c).. 1. ee ee ee ee eee eee creer rece? OCTOB

No.

Miscellaneous:

120 Cong. Rec. H.10579 (10/15/74) 2... ee ee ee ee ee eee 14

Federal and State Indian Reservations ......-++++++88° 5

Meriam, The Problem of Indian Administration ........--> 5

Moore’s Federal Practice. ......cccccccccccceceses 24 SIOUX NATION OF INDIANS, et ai.,

United States, Code Congressional and 14 Petitioners,

Administrative News ......--+ eee e28 e228 e+ 000888

VU.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

The Sioux Nation of Indians and its eight constituent

tribes* respectfully pray that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Claims, entered in this proceeding on June 25,

* The Sioux Tribe of the Rosebud Indian Reservation, South

Dakota; the Sioux Tribe of the Standing Rock Indian Reserva-

tion, North and South Dakota; the Sioux Tribe of the Pine Ridge

Indian Reservation, South Dakota; the Sioux Tribe of the Crow

Creek Indian Reservation, South Dakota; the Sioux Tribe of the

Lower Brule Indian Reservation, South Dakota; the Sioux Tribe

of the Cheyenne River Indian Reservation, South Dakota; the

Sioux Tribe of the Santee Indian Reservation, Nebraska; and the

Sioux Tribe of the Fort Peck Indian Reservation, Montana.

1975, which denies petitioners just compensation for the

taking in 1877 of the Black Hills portion of the Great

Sioux Reservation.

OPINIONS BELOW

The opinion of the Court of Claims, together with

Judge Davis’ dissent, not yet reported, is reprinted in

Appendix A hereto. The decision of the Indian Claims

Commission, which the court below reversed in material

part, appears at 33 Ind. Cl. Comm. 151 (1974), and

relevant excerpts** are reprinted in Appendix B.

JURISDICTION

The judgment of the Court of Claims was entered on

June 25, 1975. This Court has jurisdiction under 25

U.S.C. §70s (c) and 28 U.S.C. §1255 (1). In accordance

with 28 U.S.C §2101 (c), this petition for a wnt of

certiorari was due on or before Septernber 23, 1975, and

thus has been timely filed.

QUESTIONS PRESENTED

Where, as is detailed in the Statement of the Case:

(1) the United States in 1877 acquired the Black Hills

portion (gold lands) of the Great Sioux Reservation

without the consent of the Indians and under circum-

stances which led the court below to comment that a

“more ripe and rank case of dishonorable dealings will

never, in all probability, be found in our history***”’;

(2) the Court of Claims in 1942—after petitioners had

litigated almost 20 years under a 1920 special jurisdic-

** The Commission’s opinion runs 92 pages. The portion of

the opinion dealing with valuation has been omitted since valuation ©

was not an issue in the Court of Claims.

arn a

tional act to recover just compensation for the taking of

the Black Hills—dismissed the Sioux suit with a 76-page

opinion which does not state whether the judgment was

entered on the merits or for lack of jurisdiction, but

which employs language indicating that the dismissal was

for lack of jurisdiction;

(3) in 1974, almost 24 years after the Black Hills claim

had been refiled by the Sioux pursuant to the Indian

Claims Commission Act of August 13, 1946, the Commis-

sion ruled that the United States had taken the land under

the Fifth Amendment, that the defense of res judicata had

been waived by the Government, that in any event the

1942 Court of Claims decision was not res judicata, and

that the Sioux were entitled to judgment against the

United States in the amount of $17.5 million, plus

interest at 5% from 1877, but subject to the deduction of

expenditures for food, rations and provisions furnished to

the Sioux under a formula that President Ford subse-

quently said would “leave the Sioux Indians with

nothing”; and

(4) in order to avoid injustice, and even though aware

that such action could lead to a judgment on the Black

Hills claim of “nearly $103 million,” Congress in 1974

passed, and President Ford approved, an amendment to

the Indian Claims Commission Act declaring that food,

rations and provisions no longer would be deemed

payments on a claim;

The questions presented in this case are:

I. Whether petitioners’ suit for just compensation

under the Fifth Amendment for the taking of the Black

Hills gold country is barred as res judicata by the 1942

judgment of the Court of Claims dismissing the same

claim filed under the 1920 Sioux special jurisdictional

act.

II. Whether the ambiguous opinion of the Court of

Claims in 1942 dismissing the Black Hills case for lack of

jurisdiction, like doubtful expressions in treaties and

statutes affecting Indians, should be liberally construed

so as to preserve petitioners’ right to have their claim for

just compensation considered on the merits.

III. Whether the doctrine of res judicata should be

applied in this case given the shameful course of

respondent’s conduct towards the Sioux Nation and the

failure of the United States to plead or prove res judicata

as a defense.

STATUT! § INVOLVED

Articles 2, 11, 12 and 16 of the Treaty of April 29,

1868 (15 Stat. 635), and Articles 1, 2 and 5 of the

so-called Agreement of September 26, 1876, embodied in

the Act of February 28, 1877 (19 Stat. 254), which form

the substantive basis for petitioners’ Fifth Amendment

claim, are set out in Appendix C.

The Sioux Jurisdictional Act of June 3, 1920 (41 Stat.

738), provided in material part:

***That all claims of whatsoever nature which

the Sioux Tribe of Indians may have against the

United States ***may be submitted to the Court of

Claims with the right of appeal to the Supreme

Court of the United States by either party, for

determination of the amount, if any, due said tribe

from the United States under any treaties, agree-

ments, or laws of Congress, or for the misappropria-

tion of any of the funds or lands of said tribe ***,

or for the failure of the United States to pay said

tribe any money or other property due; and

jurisdiction is hereby conferred upon the Court of

Claims *** to hear and determine all legal and

equitable claims, if any, of said tribe agai

, ’ ’ nst the

United Statgs, and to enter judgment rn

Sec. 2. That if any claim or claims be submitted

to said courts they shall settle the rights therein,

a a _ equitable, of each and all the parties

Section 2, clause 1, of the Act of Au

, , gust 13, 1946 (60

Stat. 1049), 25 U.S.C. §70a (1), authorizes the Indian

Claims Commission to hear and determine claims of any

Indian tribe “in law or equity arising under the Constitu-

tion, laws, treaties of the United States, and Executive

orders of the President***.”’

STATEMENT OF THE CASE

The Sioux Black Hills case is the largest, the most

significant and the oldest Indian claim on record.

Generation after generation of Sioux have waited for a

fair and honorable judgment on the Black Hills claim as a

sign of expiation by the Government for the terrible

wrongs the Sioux have suffered.! Achievement of this

central, overriding tribal goal is the key to the Sioux

people making peace with their past, as well as progress in

the present.” Indeed, to 60,000 Sioux today, particularly

l .

The Sioux are a once powerful Indi i i

Si ‘ an nation which owned

— 60 — acres in 1851, with title recognized by the United

a e~ 974). - ae States, 205 Ct. CL 148, 500 F.2d

, ' e eight tribes which constitute the Si '

— — - —| bow 2,350,000 acres scattered von aie

. e State Indian Reservations 279

291, 433, 489, 492, 496, 498, 500 (G.P.O. 1975). ieiiad 8 0

- ec economy, unemployment on these reservations ranges

rom a low of 23% (Lower Brule) to a high of 69% (Crow Creek)

Id. at 281, 292, 434, 491, 493, 497, 499, 501.

As was observed in Meriam’s classic s

; 0 tudy, The Probi

Indian Administration (Inst. for Govt. Research, 1928), at m4

[footnote continued |

the militants at Alcatraz and Wounded Knee, the pay-

ment of just compensation by the United States for the

taking of the Black Hills in violation of the 1868 Sioux

Treaty is the litmus test for whether Indians ever can get

justice in the white man’s courts. So far the United States

has failed the test.

In characterizing the course of conduct by which the

United States acquired the Black Hills portion of the

Great Sioux Reservation, the Court of Claims observed

that “[a] more ripe and rank case of dishonorable

dealings will never, in all probability, be found in our

history***.” (App. A, p. 6.) Nonetheless, on the theory

that it had decided 33 years ago, whether “rightly or

wrongly,” that the Sioux did not possess a F ifth

Amendment claim under the Act of February 28, 1877

supra, the court below invoked the doctrine of res

judicata and reversed an Indian Claims Commission order

allowing interest as part of just compensation for the -

Government’s taking. The error of the court’s holding,

and the adverse impact of its narrow ruling upon current

Federal-Indian relations, can be appreciated only in the

context of the substantive merits of the Sioux Black Hills

claim and, of course, the prior history of this litigation.

A. The Treaty of April 29, 1868. Following the

so-called Powder River War of 1866-67, the United States

and the Sioux entered into the Treaty of April 29, 1868

(15 Stat. 635),°> under which inter alia: (1) the United

States confirmed title in the Sioux Nation to the Great

805: “The benevolent desire of the United States government to

educate and civilize the Indian cannot be realized with a tribe

which has any considerable unsatisfied bona fide claim against

the government.”

3 Material portions of the 1868 Treaty are reprinted in App-

endix C.

Sioux Reservation embracing virtually all of the present

State of South Dakota west of the Missouri River (Article

2); (2) the Sioux surrendered all rights to their country

outside the Great Sioux Reservation, subject to Articles

11 and 16 of the Treaty (Article 2); (3) the United States

promised the Sioux an off-reservation right to hunt on

certain lands in Kansas and north of the North Platte

River (Article 11); and (4) the United States recognized a

Sioux right to continue to use, but not permanently to

inhabit, an area about twice as large as the Great Sioux

Reservation “north of the North Platte River and east of

the summits of the Big Horn Mountains***,” ie.

portions of Nebraska, Wyoming and Montana (Article 16).

The United States made three further major commit-

ments to the Sioux in the 1868 Treaty. First, the

Government guaranteed that the Great Sioux Reservation

was “set apart for the absolute and undisturbed use and

occupation” of the Sioux (Article 2). Second, the

Government agreed “that no persons except *** | Federal

personnel] authorized to enter upon Indian reservations

me shall ever be permitted to pass over, settle upon, or

reside” on the reservation (Article 2). Third, the Govern-

ment promised that no cession of all or any part of the

Great Sioux Reservation would have any force or validity

unless executed and signed by at least three-fourths of

all the adult male Indians, occupying or interested in the

same***” (Article 12).

The Black Hills country of South Dakota lay in the

western part of the Great Sioux Reservation, and was

well known to be valuable for gold long before execution

of the 1868 Treaty. (App. B, pp. 25-6.) For the Sioux,

the Black Hills also possessed great religious significance.

Petitioners’ claim, as more particularly described below

is based upon respondent’s unilateral acquisition of the

Black Hills country under the Act of February 28, 1877,

supra, in violation of the terms of the 1868 Treaty.

B. The Act of February 28, 1877. In 1874, a military

expedition headed by Lt. Col. George Armstrong Custer

reported the presence of gold in paying quantities within

the Black Hills. The widespcead publicity given Custer’s

reports stimulated an invasion of the Great Sioux

Reservation by substantial numbers of non-Indian gold-

seekers. (App. A, p. 2.) Initially, the United States

maintained troops on the reservation to enforce the

treaty provision barring outsiders. The “gold fever” so

increased during the winter of 1875, however, that the

Commissioner of Indian Affairs succumbed to the politi-

cal argument that occupancy of the Black Hills by

non-Indians was inevitable, and that the United States

should acquire the land from the Sioux.

Pursuing this theme, the Commissioner brought a large

Sioux delegation to Washington in May of 1875 to

discuss the surrender of the Black Hills country as well as

the extinguishment of the off-reservation rights the Sioux

possessed under Articles 11 and 16 of the 1868 Treaty.

In a meeting with the delegation on June 3, President

Grant warned that, if the Sioux refused to sell, “the

Government might not make strong efforts to keep them

[the goldseekers] out.” (33 Ind. Cl. Comm. 151 at 251.)

Two weeks later, the Government dispatched the so-

called Allison Commission to negotiate with the Sioux

for the right to occupy the Black Hills “for mining

purposes.” Sioux Tribe of Indians v. United States, 97 Ct.

Cl. 613, 636-38 (Fdg. 11) (1942).

The Allison Commission dickered with the Sioux

throughout the month of September 1875 without

success.* Upon receiving word of the Commission's

failure, President Grant in early November, with the

concurrence of the Secretary of War and the Secretary of

the Interior, decided that, although non-Indians still were

forbidden from entering the Black Hills, the Army would

be directed not to enforce the law. This order was kept

secret in official Washington.°

Simultaneous to its drastic change in military policy,

the Grant Administration began to pressure Congress for

legislative action that would force the Sioux to sell the

Black Hills. Taking up an earlier suggestion by the

Commissioner of Indian Affairs, the Secretary of the

Interior strongly recommended that Congress, through

use of the appropriation power, cut off food supplies

(rations) for the Sioux unless the Indians agreed to a land

cession. (33 Ind. Cl. Comm. 151 at 253-54.) Congress did

not then put this cruel proposal into effect.

Unable to move Congress, the Administration delibe-

rately precipitated a crisis in relations with the Sioux.

Specifically, on December 3, 1875, the Secretary of the

Interior instructed the Government’s agents in Dakota

and at Fort Peck, Montana, to notify the Sioux in the

Yellowstone and Powder River country west of the Great

4 App. B, p. 27. Interestingly, the Sioux, “realizing the great

value of the Black Hills to the United States,” offered to sell the

land to the Government for $70 million, plus additional compen-

sation for the gold already mined. 33 Ind. Cl. Comm. 151 at 252.

5 App. A, p. 2; App. B, p. 27. President Grant’s secret decision

to leave the Great Sioux Reservation open to invasion in viola-

tion of the 1868 Treaty is dramatically evidenced by contem-

poraneous correspondence of the military authorities to which the

Court of Claims gave judicial notice (App. A, p. 2). Copies of this

correspondence are reproduced in Appendix D. The Army with-

drew from the Black Hills about November 17, 1875, and miners

thereafter flocked into the area in ever-increasing numbers. 33

Ind. Cl. Comm. 151 at 253.

Sioux Reservation that, unless they returned to the reser-

vation by January 31, 1876, they would be declared

“hostiles.”’ Hostile Indians, whether men, women or

children, could be shot on sight.

During the winter of 1875-76, the Sioux were hunting

off the reservation with the permission of the Govern-

ment’s agents, as they had a right to do under Article 16

of the 1868 Treaty. The severity of the winter made an

immediate trek of several hundred miles back to the

reservation by men, women and children physically

impossible. The Secretary’s own messenger could not

return until well after the January 31 deadline. Nonethe-

less, on February 1, 1876, the Secretary of the Interior

notified the Secretary of War that the order to return had

not been followed, and that the Sioux were being turned

over to the Army for appropriate military action. (App.

A, p. 3; App. B, pp. 27-8.)

Custer was searching for Sioux “‘hostiles” when he met

his famous defeat at Little Big Horn on June 25, 1876.

As soon as the news of the battle reached Washington on

July 5, during the centennial celebration of this Nation’s

independence, Congress became so incensed that it

attached what the Sioux call the “sell or starve” rider to

the Indian Appropriations Act of August 15, 1876 (19

Stat. 176, 192). Under this rider, the Sioux were to

receive no further rations until they ceded the Black Hills

to the United States and surrendered all rights outside the

Great Sioux Reservation. Since most of the Sioux already

had been dismounted and disarmed, and were confined to

the reservation, they could not hunt. Congress thus gave

the Sioux the infamous option to “sell or starve.” (App.

B, p. 28.)

Armed with Congressional authorization for his con-

duct, President Grant appointed yet another commission

to negotiate with the Sioux. Despite the ultimatum

contained va 4 mao Appropriations Act, the commis-

sion proved unable to extract the signatures of m

10% of the adult male Sioux, including 18-year pa

cession agreement—far less than the 75% approval for a

land sale required under Article 12 of the 1868 Treaty.

(Ibid.) Nonetheless, in the Act of February 28, 1877 (19

Stat. 254), Congress unilaterally effected the acquisition

by the United States of the Black Hills, comprising

7,345,157 acres, and “abrogated” all off-reservation rights

possessed by the Sioux under Articles 11 and 16 of the

1868 Treaty. (App. B, pp. 25,28; App. C, pp. 67-8.)

The Sioux Black Hills claim stems from th

that the’1877 Act constituted a Fifth hasinlinass dion

of petitioners’ property.

. C. Prior proceedings. During the years after 1877, the

Sioux repeatedly sought permission from Congress to

present the Black Hills claim to an impartial tribunal. The

doors of the Court of Claims initially were closed to

petitioners (as well as to other Indian tribes) because the

jurisdiction of that court did not extend to “any claim

against the government *** dependent on any treaty

stipulation entered into *** with the Indian tribes.’

Finally, a special statute, enacted in 1920, granted the

Sioux permission to bring suit in the Court of Claims.

(See text, pp. 4-5, supra.)

The Sioux filed 13 cases under the 1920 Act, covering

a total of 18 claims. The court below dismissed all 13

cases between 1938 and 1949. The Black Hills case

involving the claim at bar, was dismissed in 1942, shout

19 years after the suit first had been instituted. Sioux

Act of March 3, 1863 (12 Stat. 765); section 1 of th

Tucker Act of March 3, 1887 (24 Stat. a” “ '

Tribe v. United States, 97 Ct. Cl. 613 (1942), cert. denied

318 U.S. 789 (1943). The central question presented vy

this petition is whether the 1942 dismissal was on the

ground that the 1920 Act so limited the court’s jurisdic-

tion as to preclude consideration of a Fifth Amendment

taking case like the Black Hills claim, or whether, in

1942, the court assumed jurisdiction, adjudicated the

claim on the merits and dismissed on the ground that

there was no Fifth Amendment taking.

. ceedings before the Commission. On August 15,

dis Gate * ae aa refiled the Black Hills claim

in the newly created Indian Claims Commission. o~

years later, the Commission dismissed the suit on the

ground that the petitioners had failed to prove their case.

Sioux Tribe v. United States, 2 Ind. Cl. Comm. tn

(1954). On appeal, the Court of Claims first affirme

(Sioux Tribe of Indians v. United States, 146 F.Supp.

229 (Ct. Cl. 1956)), but on motion of the Sioux, through"

new counsel, subsequently vacated its judgment of

affirmance and remanded the case to the Commission for

a full and complete hearing on the merits. (182 Ct. Cl.

912-13.) On November 19, 1958, only two weeks =

the remand, the Commission ordered the case reopene

and also announced that it would reconsider its previous

decision. See Sioux Tribe v. United States, 205 Ct. Cl.

148, 500 F.2d 458, 476-77 (1974).

On November 4, 1960, the Sioux filed an amended

petition which reiterated the allegation that the Act of

February 28, 1877, supra, constituted a taking of —

land and rights for which just compensation was payab e

under the Fifth Amendment, and which otherwise

clarified the legal and factual basis for this cause =

action. (App. B, p. 30.) Almost six years later, the

Government filed its answer, which had been due under

the Commission’s rules within 60 days after the amended

petition was filed. During the intervening six years, the

United States, in January 1961, first unsuccessfully

petitioned the Court of Claims for a writ of mandamus

seeking to upset the Commission’s actions upon remand

(182 Ct. Cl. 912-13), next unsuccessfully moved the

Commission in June 1961 to dismiss, and, following four

years of silence, finally moved for a clarification of the

record that the Commission furnished on May 25, 1966.

A month thereafter, the Government belatedly filed its

answer to the amended petition. Significantly, neither in

its amended answer nor in its mandamus petition, motion

to dismiss and request for clarification did the United

States ever raise the defense of res judicata.

Following submission of the amended answer, the pace

of litigation before the Commission materially quickened.

After a full trial in 1969-70 and while the issue of

valuation was still sub judice, the Commission ordered

oral argument on a series of questions, including whether

the Sioux Fifth Amendment claim was barred by the

1942 decision of the Court of Claims.’ Within two

months, the Commission rendered its decision (App. B,

pp. 19-64), holding so far as here pertinent: (1) that the

Sioux Black Hills land and minerals, including gold

removed prior to the 1877 Act, had a fair market value

on February 28, 1877, of $17.5 million (33 Ind. Cl.

Comm. 151 at 362-63); (2) that by the Act of February

28, 1877, supra, the United States took petitioners’

property for which just compensation was due under the

Fifth Amendment (App. B, pp. 50-2); and (3) that the

” Order entered December 7, 1973. At the oral argument of

December 18, 1973, the Sioux expressly reserved their right to

assert that “the issue of res judicata has never been affirmatively

raised as a defense by the defendant.” (Transcript of argument

(Inst. 76), pp. 3-4.)

United States had waived the defense of res judicata and

that, even if there had been no waiver, the Court of

Claims dismissed in 1942 for lack of jurisdiction and not

on the merits of the Sioux Fifth Amendment claim (App.

B, pp. 29-44).

The Commission also ruled that the United States was

entitled to a credit for food, rations and provisions

furnished to the Sioux pursuant to the 1877 Act. (App.

B, pp. 52-6.) In direct response to the Commission's

ruling, Congress amended section 2 of the Indian Claims

Commission Act—the only substantive change in that law

since its passage on August 13, 1946—to provide that

“expenditures for food, rations, or rovisions shall not be

dcemed payments on the claim.’ In so amending the

Act, which under the Commission’s offset formula would

have wiped out substantially all of petitioners’ interlocu-

tory award, Congress was well aware that its action might

result in a judgment on the Black Hills claim “in the

amount of approximately $100 million.” (120 Cong.

Rec. at H.10579-80 (daily ed. October 15, 1974).) When

he signed Public Law 93-494, President Ford also stated

that, while the Black Hills claim, with interest, could

amount to nearly $103 million, “if such a claim is held to

be valid, it would be unfair and unjust to try to avoid

paying 1t by deducting the cost of previously supplied

food and provisions.”

8 act of October 27, 1974 (Public Law 93-494, 88 Stat.

1499); see also S. Rept. No. 93-863 on S. 3007, printed in United

States Code Congressional and Administratwe News, 93d Cong.,

Od Sess., at pp. 6111-15 (1974), and Conf. Rept. No. 93-1446

on S. 3007, id. at 6118-19.

9 The complete text of the President’s statement upon sign-

ing S. 3007 is reproduced in Appendix E.

E. Proceedings below. The Government’s appeal to the

Court of Claims was limited to the proposition that the

Sioux Fifth Amendment claim is barred by res judicata,

or, in the alternative, that the 1877 Act did not effect a

Fifth Amendment taking of the Black Hills. Following

enactment of Public Law 93-494, the Government, in

essence, conceded its underlying liability on the claim

and, as the court below noted, directed its appeal entirely

to contesting the payment of interest. (App. A, p. 2.)

On June 25, 1975—99 years to the day after Custer’s

defeat—the Court of Claims reversed the allowance of

interest as part of just compensation on the ground of res

judicata, and otherwise affirmed the Commission’s deci-

sion. In so ruling, the court below adopted a “lenient”

attitude towards the Government’s “explanation of its

pleadings” and concluded that, although the issue of res

judicata had not been expressly pleaded, the United

States had shown through argument that it did not intend

to waive that affirmative defense.'° (App. A, pp. 6-7.)

The Court of Claims further concluded that its 1942

opinion was res judicata on the question of a Fifth

Amendment taking, since the Sioux “claim for a taking

was well within the [1920] jurisdictional act” and had

been rejected by the 1942 court on the strength of Lone

Wolf v. Hitchcock, 187 U.S. 553 (1903). (App. A, p. 8.)

In view of this holding, the court below did not consider

petitioners’ Fifth Amendment claim on the merits.

10 Respondent not only did not plead the defense of res judi-

cata, but also did not attempt to litigate the issue. The Sioux

thus were never afforded an opportunity to make a record on

the point. The court below took judicial notice, sub silentio, of

its 1942 opinion, but the pleadings, briefs and records in the

1942 case were not part of the record before the Commission

and, therefore, were not before the court below on appeal.

Davis dissented, pointing out that the Court of

ann 1942 amente Gaal it had jurisdiction to

decide whether there had been a “taking” of the Black

Hills, but no jurisdiction to determine whether the

compensation paid by the Government under the 1877

Act was “just” (App. A, p. 18). Judge Davis then

observed:

I am not persuaded that in 1942 the Indians had the

i to present their Fifth Amendment

a * “aad which deemed itself fully

empowered to decide all aspects of that demand on

their merits. (Jbid.)

REASONS FOR GRANTING THE WRIT

OF THE COURT BELOW REJECTING

= oe cree AMENDMENT CLAIM ON GROUNDS

OF RES JUDICATA IS WRONG, AND ALLOWING THAT

DECISION TO STAND WILL PERPETUATE A GRAVE

MISCARRIAGE OF JUSTICE.

The validity of the Government’s res ——

depends upon whether the Court of Claims in 19 2

dismissed petitioners’ suit, filed under the 1920 Sioux

special jurisdictional act, on the merits because it did not

consider the Black Hills claim to be a Fifth Amendment

taking case, or whether the court dismissed because the

1920 Act, in its view, did not authorize it to look behind

the 1877 Act to ascertain whether a taking had occurred.

The court below held that its 1942 opinion was on the

merits, asserting that “suit could not [there] be main-

tained as for a taking because the facts brought the case

under the line of Lone Wolf v. Hitchcock, 187 U.S. 553

(1903) * * * [which] held that it was not a taking if the

Congress, exercising its plenary power over Indian tribe~,

took their land without their consent and substituted for

it something conceived by Congress to be an equivalent.”

(App. A, p. 8.) An analysis of the decisions shows,

though, that the court below incorrectly restated what

this Court held in Lone Wolf and, more significantly,

misconstrued its own 1942 ruling in Sioux Tribe v.

United States, supra.

Lone Wolf v. Hitchcock, supra, was an action to enjoin

the Secretary of the Interior from disposing of tribal land

under a 1900 Kiowa-Comanche statute on the ground

that Congress possessed no legal power to divest the tribe

of title unless three-quarters of the adult males agreed to

the land cession, as required under the provisions of a

treaty comparable to Article 12 of the 1868 Sioux

Treaty. This Court held the statute constitutional as an

exercise of Congress’ plenary power over Indian land,

including the power to abrogate treaties. In so ruling, the

Court declared that, since “Congress possessed full power

in the matter, the judiciary cannot question or inquire

into the motives which promoted the enactment of this

legislation” (187 U.S. at 568), or determine whether the

consideration paid was fair. Contrary to the opinion

below, this Court in Lone Wolf did not pass upon

whether the Kiowa-Comanche statute gave rise to a claim

for just compensation under the Fifth Amendment. That

question was not before the Court.!!

The Court of Claims in 1942 cited Lone Wolf for the

proposition that the 1877 Act under which the United

'l “If injury was occasioned * * * by the use made by Con-

gress of its power, relief must be sought by an appeal to that

body for redress, and not to the courts.” 187 U.S. at 568. In

1942, of course, neither the Court of Claims nor any other court

had general jurisdiction to hear and determine Indian tribal claims.

See text, p. 11, supra.

States acquired the Black Hills was constitutional and

thus, standing alone, could not serve as the basis for a

“legal” claim under the 1920 Act. (97 Ct. Cl. at 668.) In

this manner, the court below distinguished such cases as

Shoshone Tribe v. United States, 299 U.S. 476 (1937),

and United States v. Creek Nation, 295 U.S. 103 (1935),

where this Court allowed just compensation under the

Fifth Amendment for the loss of tribal lands.'* The

1942 Court of Claims noted that, unlike the 1877 Sioux

Act which provided for rations, these cases disclosed an

“arbitrary taking”, effected through executive action

later ratified, “without payment or the assumption of an

obligation to pay any compensation * * *.” (/d. at 667.)

In short, Shoshone and Creek presented no problem

about inquiring into the motives of Congress or ascertain-

ing the adequacy of the consideration promised because

the Government had there evidenced no intent to pay

any compensation.

12 97 Ct. Cl. at 673. In Shoshone, the military wrongfully

moved one Indian tribe onto the treaty reservation of another

tribe; this tort was converted into a taking when Congress ratified

the wrongful course of conduct by actions supporting the second

tribe on the reservation. 299 U.S. at 495-97. In Creek, a Federal

agent erroneously surveyed the reservation line to exclude tribal

land; the error was confirmed and a taking effected when the lands

were disposed of by the Government through patents issued by

its authorized officers. 295 U.S. 110, 111.

The Court of Claims in 1942 also distinguished United States

v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938), on the

ground that the legislative history of an amendment to the Klamath

jurisdictional act, enacted after the court below dismissed for lack

of jurisdiction, established that Congress intended the tribal claim-

ant to recover for a Fifth Amendment taking. 97 Ct. Cl. at

675-79. Significantly, in its 1942 decision the court below exam-

ined the legislative history of the 1920 Sioux jurisdictional act to

demonstrate that Congress was not made aware of any Fifth

Amendment claim when that statute was under consideration. /d.

at 685-89.

Contrary to the 1975 view of the court below (App.

A, P- 8), the 1942 Court of Claims did not believe that

possible inquiry into whether the Sioux possessed a Fifth

Amendment claim stopped at the point where it deter-

mined that the 1877 Act was constitutional. Rather the

1942 court pointed out that, although in transactions

between private parties, one party cannot fix the terms or

consideration and force the other party to accept them,

this rule “does not follow in dealings between the

Government and Indian Tribes so as to enable the Indians

to question in a legal praceeding the policy, wisdom, or

authority of Congress, unless Congress has clearly granted

to the Indians the right to do so.”’ (97 Ct. Cl. at 681-82;

emphasis added.) Again in a key passage of its opinion,

the 1942 court declared, after stating the general rule

that determining just compensation in Fifth Amendment

taking cases is a judicial function:

But before this general rule is applicable to Indian

cases, consideration must be given to the question of

policy and the extent of the plenary authority of

Congress to legislate in such a way as it deems

proper with reference to the management and

control of the property and affairs of the Indian

tribes and the extent to which consent to be sued

has been granted, as well as to the circumstances and

conditions under which an implied contract will

arise under the Fifth Amendment. The facts must

show not only that there has been a “taking” or

“misappropriation” by the Government of land or

property of the tribe under such circumstances as

give rise to an implication of a promise or

undertaking to make “just compensation” ***, but

that Congress has, by the jurisdictional act, which

speaks only of legal claims, opened up the question

of the fairness of what was done or of the adequacy

of the consideration paid, and has authorized the

court to determine, adjudicate, and render judgment

accordingly. (97 Ct. Cl. at 683-84, emphasis added.)

In other words, the 1942 Court of Claims recognized

that, even where Congress validly has exercised its

plenary power over Indian lands, a Fifth Amendment

claim might result, but the Court would have no

jurisdiction over such a claim unless the jurisdictional

statute authorized inquiry into “the fairness of what was

done or of the adequacy of the consideration paid” and

the court found the compensation not to be “just”. (See

App. A, p. 18, dissenting opinion of Judge Davis.) The

question of compensation “‘if injury was occasioned” by

the exercise of Congress’ plenary power, of course, was

the question left open in Lone Wolf. (187 U.S. at 568,

quoted in 97 Ct. Cl. at 673.)

Consistent with the foregoing analysis, the 1942 court

examined into the scope of the 1920 Sioux special

jurisdictional act. At the outset the court observed that

“(t]he facts and circumstances narrow the legal issue

between the parties to the question whether * * * the

plaintiff tribe has any legal and enforceable claim within

the meaning of section 1 of the jurisdictional act upon

which the court has authority to inquire into the wisdom

of the policy pursued by the Government * * * and the

adequacy of the consideration assumed and paid by

defendant for the property acquired.” (97 Ct. Cl. at 658.)

The court then noted that its jurisdiction “must be found

within the terms of the jurisdictional act” (97 Ct. Cl. at

663), and that “[s] pecial jurisdictional acts are strictly

construed and clear grant of authority must be found in

the act.” (Jd. at 664.) Thereafter the court repeatedly

declared that the 1920 Act did not empower it to go

behind the 1877 Act and to inquire into either the

motives or the wisdom of Congress in approving the

legislation or the adequacy of the consideration promised

to be paid for the taking of petitioners’ lands. (See, e.g.,

id. at 668, 670, 682 and 685.) This ruling as to the

narrow scope of the 1920 Act led the 1942 Court of

Claims ineluctably to the conclusion that it possessed no

au thority to determine whether the Sioux were entitled

to just compensation under the Fifth Amendment and,

therefore, to dismissal of the Black Hills claim for lack of

jurisdiction.

For these reasons, the court below in 1975 plainly was

wrong in characterizing its 1942 decision as a judgment

on the merits and in applying the doctrine of res judicata

to petitioners’ claim for just compensation. The fact

remains, however, that the 1942 decision deprived the

Sioux of their day in court initially, and that the

erroneous 1975 decision, if allowed to stand, will deprive

the Sioux of their day in court for all time. For this

Court to refuse to intervene, and in effect to give finality

to that denial of a full and fair hearing on the substantive

merits of the Sioux Black Hills claim, would perpetuate a

grave miscarriage of justice.

The inequity worked by the holding of the court

below is all the more poignant because, absent res

judicata, the Sioux clearly would prevail on the merits of

their claim for just compensation in this case. Under the

Act of February 28, 1877, supra, “the Government * * *

acquired the [Sioux] property outright.” (97 Ct. Cl. at

681.) Even under the Court of Claims’ “good faith” test

for denying Fifth Amendment protection to tribal

land,!® as distinct from all other private property, such

1S App. A, p. 9; see Three Affiliated Tribes of the Fort Bert-

hold Reservation v. United States, 182 Ct. Cl. 543, 390 F.2d

686 (1968); Confederated Salish and Kootenai Tribes v. United

States, 193 Ct. Cl. 801, 805, 437 F.2d 458, 459-60 (1971).

action would constitute a taking. First, the “good faith”’

test does not apply where, as here, the United States

acquired Indian land for its own account. Klamath and

Modoc Tribes v. United States, 193 Ct. Cl. 670, 689 n.

25, 436 F.2d 1008, 1017-18 n. 25 (1971). More

important, in acquiring the Black Hills, the Government

plainly did not act in “good faith”. (App. A, p. 6;App.

B, p. 52.)

THE COURT BELOW SHOULD NOT HAVE INVOKED

RES JUDICATA TO DENY PETITIONERS A DECISION

ON THE MERITS OF THE BLACK HILLS CLAIM GIVEN

THE AMBIGUITY OF ITS 1942 OPINION, THE FAILURE

OF THE UNITED STATES TO PLEAD OR PROVE RES

JUDICATA AS A DEFENSE, AND THE SHAMEFUL

COURSE OF THE GOVERNMENT’S CONDUCT TO-

WARDS THE SIOUX NATION.

The 1942 opinion of the Court of Claims in Stoux

Tribe v. United States, supra, is not a model of clarity.

To the court below in 1975, “in 1942 this court did,

rightly or wrongly, hold on the merits, in a cause it had

jurisdiction of, that the Sioux did not have a valid claim

against the United States on account of the taking of the

Black Hills * * *.” (App. A, p. 14.) Less than five

months after its 1942 ruling issued, on the other hand,

the court below cited Sioux Tribe for the principle that,

“in the absence of express Congressional authorization

this Court has not the power to determine whether or not

just compensation was paid” for a taking of tribal land.

Winnebago Tribe of Indians v. United States, 100 a. Cl.

1, 6 (1942). As Judge Davis commented in dissent, [i]t

is not easy to apply the general principles of former

adjudication to this court’s decision in 97 Ct. >» ee

(App. A, p. 14.)

As a general rule, if there is a reasonable doubt

concerning what was decided by a prior judgment, that

doubt must be resolved against the party claiming the

estoppel. Kauffman v. Moss, 420 F.2d 1270, 1274 (3 Cir.

1970), cert. denied, 400 U.S. 846 (1970); Northern Oil

Co. v. Socony Mobil Oil Co., 368 F.2d 384, 388 (2 Cir.

1966); see United States v. International Bldg. Co., 345

U.S. 502, 506 (1953). This rule is particularly pertinent

where, as here, the United States is asserting a debatable

res judicata defense against an Indian tribe in relation to

which “‘it has charged itself with moral obligations of the

highest responsibility and trust.” Seminole Nation v.

United States, 316 U.S. 286, 297 (1942). Indeed, as

necessary incidents of “the Government’s fiduciary obli-

gation” (ibid), this Court repeatedly has declared that

laws affecting Indians “should be liberally construed” for

their benefit (Choate v. Trapp, 224 U.S. 665, 675

(1912)), and that “[d]oubtful expressions are to be

resolved in favor of the weak and defenseless people who

are the wards of the nation, dependent upon its protec-

tion and good faith.” Carpenter v. Shaw, 280 U.S. 363,

367 (1930). The court below seriously erred in neglecting

to apply the same liberal standards to construction of its

ambiguous 1942 opinion.!*

The court below also should not have invoked res

judicata to deny the Sioux a decision on the merits of the

Black Hills claim in view of the Government's persistent

failure to plead or prove that affirmative defense. (See

Statement, pp. 13 and 15, n.10, supra.) The doctrine of

14 The Court of Claims’ strict construction of the 1920 Sioux

special jurisdictional act (97 Ct. Cl. at 664) and its equally strict

application of the doctrine of res judicata (App. A, pp. 13-14) are

in sharp contrast to its “lenient” approach to the Government’s

“ambiguous” pleading allegations (id. at 7).

res judicata is judicial in origin, and is based upon a

public policy that litigation must come to some end.

Commissioner v. Sunnen, 333 U.S. 591, 597 (1948);

Heiser v. Woodruff, 327 U.S. 726, 733 (1946). In this

case, though, the Government’s withholding of its res

judicata defense for a period of over 15 years following

the Court of Claims’ remand in 1958 (see Statement, p. 15,

supra) resulted in the Sioux’ actually litigating their claim

under the Fifth Amendment to an interlocutory decision

by the Commission. Moreover, on appeal the United

States conceded its underlying liability to pay fair market

value for the Black Hills land and minerals. (See

Statement, p. 15, supra.) The court below, therefore, was

not in a position to effect an economy in judicial time, to

protect either party from litigating the same cause twice

or otherwise to implement any public policy which has

led the courts to promulgate the doctrine of res judicata.

Absent a valid policy reason for so ruling, the court.

below clearly erred in ignoring the Government’s waiver

and in applying res judicata to the Sioux claim merely to

save the United States the expense of paying interest as

part of just compensation.

Finally, assuming, arguendo, that the 1942 Court of

Claims did have jurisdiction over the Sioux Fifth Amend-

ment claim under the 1920 Act, the doctrine of res

judicata is not to be slavishly followed where its

application will violate an overriding public policy or

result in manifest injustice to a party. See United States

v. United States F.&G. Co., 309 U.S. 506, 513-14

(1940); Spilker v. Hankin, 188 F.2d 35, 38-9 (D.C. Cir.

1951); Universal Constr. Co. v. Fort Lauderdale, 68

So.2d 366, 369 (Fla. 1953); 1B Moore’s Federal Practice,

4. 0.405[11] (1974). The Sioux claim easily fits this

exception to the general rule. The course of action by

which the United States acquired the Black Hills from the

Sioux—characterized by the court below as probably the

most “ripe and rank case of dishonorable deal-

ings * * * to be found in our history” (App. A, p. 6)—is

shocking to the conscience. In deference to the public

policy expressed in the Indian Claims Commission Act

that the ancient wrongs done to Indians be settled for all

time, and in order to avoid a manifest injustice to the

Sioux Nation after so many years of frustrating litigation,

the Court of Claims should not have invoked res judicata

again to deny petitioners a decision on the substantive

merits of the Black Hills claim.

CONCLUSION

The Government has conceded, as the court below

held, that it is liable to petitioners herein under section 2,

clause 3 (“unconscionable consideration”) or clause 5

(violation of “fair and honorable dealings”) of the Indian

Claims Commission Act. What really is at stake in this

case, therefore, is the remaining $85 million of just

compensation due for a taking under the Fifth Amend-

ment and, realistically, the immediate destiny of 60,000

Sioux Indians.

An award of $103 million, which amounts to about

$1700 for each Sioux man, woman and child, would not

constitute an inconsiderable sum for a people whose

unemployment rate ranges from 23 to 69 per cent (see p.

5, n. 1, supra) and whose median family income by all

known tests falls far below the poverty line. Without

meaning to sound melodramatic, counsel can state

15 Even the court below conceded that, if the Sioux could file

suit today under the 1920 jurisdictional act, “‘whether * * * the

same result would have been reached is far from obvious * * *.”’

App. A, p. 9.

unhesitatingly that, after a 100-year wait, an award of

only $17.5 million for the cherished Black Hills, which

works out to less than $300 per capita, will be thought of

by the Sioux as yet another breach of faith by white

institutions. Instead of settling an old grievance, this case

will become a new grievance, while the long and painful

transition of the Sioux from a buffalo hunting culture to

' a place in modern society will be set back a few more

generations.

The Black Hills claim is important—a still living part of

our nation’s history. Justice and honor require that the

Sioux not be told that their case has reached its end

without review by the highest court of the land. The

petition should be granted.

Respectfully submitted,

ARTHUR LAZARUS, JR.

600 New Hampshire

Avenue, N.W.

Washington, D.C. 20037

MARVIN J. SONOSKY

2030 M Street, N.W.

Washington, D.C. 20036

Of Counsel:

WILLIAM HOWARD PAYNE

Attorneys for Petitioners.

APPENDIX A

Gn the United States Court of Glaims

Appeal No. 16-74 ~

Ind. Cl. Comm. Docket No. 74-B

(Decided June 25, 1975)

THE UNITED STATES OF AMERICA

THE SIOUX NATION OF INDIANS, ET AL. arertrene

Craig A. Decker, with whom was Assista

’ nt Att

General Wallace H. Johnson, for ania icine

ie — Jr., attorney of record for the Pine Ridge

Marvin J. Sonosky, attorney of record f

: ky, or the Rosebud

Sioux Tribe, Standing Rock Sioux Tribe, Crow Creek Sioux

“ribe, Lower Brule Sioux Tribe and Santee Sioux Tribe.

William Howard Payne, attorney of record for the

Cheyenne River Sioux Tribe ani the Si

Reservation, Montana. loux of the Fort Peck

Before Cowen, Chief Judge, Durrex, Senior J

dge,D

Sxerton, Nicnots, Kunzta, and Bawnerr, pit oan

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

N ICHOLS, Judge, delivered the opinion of the court :

This appeal of the Indian Claims Commission’s interlocu-

tory order of February 15, 1974, raises essentially the ques-

tion whether by the Act of February 28, 1877, 19 Stat. 254

and otherwise, the United States took the Sioux Nation’s

property in the Black Hills, North Dakota, by the power of

eminent domain, or by a course of unfair and dishonorable

dealing not amounting to a constitutional taking. In the

former case interest is awardable as a part of just compen-

sation and that is the answer of the Commission. In the latter

it is not, and that is ours. Appellant admitted on oral argu-

ment it was only here to contest the interest. The following

colloquy occurred :

Judge Davis: * * * The difference really is, whether

the Tribes will be entitled to interest on whatever the

valuation is? The Commission came up with

Gov't. Atty.: 17 million dollars

Judge Davis: Now, originally you were able to take

it to wipe out the whole 17 million but now you're no

longer able to do that ¢

v’t Atty.: Not on unconscionable consideration.

Judge Davis: But now the whole difference is interest,

whether they get paid the interest /

Gov't Atty.: That's all we're arguing about.

The opinion below, 3B Ind. Cl. Comm. lol, reveals the

facts giving rise to the instant claim. By the Treaty of

April 29, 1868, 15 Stat. 635, 636, the United States confirmed

in the Sioux Nation recognized title to all of the present

South Dakota We-t of the Missouri River, and it agreed to

keep unauthorized persons out. The Black Hills portion.

acquired in 1877, contained 7.545,157 acres. In 1874 an ex-

ploration led by Lieutenant Colonel Custer discovered gold

in this area. A large nuinber of prospectors and miners there-

after entered it without consent of the Indians or other

warrant of law. and pressure began to build to open the

Black Hills to white settlement. At first the Army was

stationed to keep the intruders out, but by motion of appellee,

and without objection by appellant, we take judicial notice

of certain documents which show that President Grant on

November 3. 1875, secretly ordered the Army to make no

further resistance to the miners going in. At the same time,

he decided not to rescind orders theretofore issued forbidding

them to occupy the Black Hills country, but in the absence of

enforcement. this was ineffectual. The dependence «f the

Sioux on Government rations was relied on to prevent their

making trouble.

The Government now decided to acquire the Black Ifills

from the Sioux. sending a Commission to negotiate. but it

failed to reach agreement. In December 1875. the Government

ordered all Sioux back to their reservation by January 21:

1876, or be treated as hostile. Those outside were hunting ond

could not return in time; nevertheless the Army was sent to

commence military operations against them. The famous de-

feat of Custer occurred on June 25, 1876. Incensed by this

Congress attached a rider to the Appropriation Act of Au-

cust 15, 1876, cutting off the Sioux rations until they ceded

the Black ILills. Since they could not hunt, until they yielded

they would starve. ii

Pie Commission was unable nevertheless to get more than

10° of adult male Sioux to agree to cession. This was fatal

to a legal acquisition by agreement, since Article XII of the

ISGS Treaty provided that no cession of any part of the

reservation should be valid unless three-fourths consented

Congress by Act of February 28, 1877, 19 Stat. 254 re-

solved the impasse by enacting into law the unratified agree-

ment of September 26, 1876, This yielded up the disputed

terricory, Tt ineluded provisions respecting a contemplated

removal to Indian Territory, not here relevant. It undertook

to educate the Sioux and gave them a right to specified rations

until able to support themselves. They had to remain im-

poverished to continue to enjoy the rations, a condition it

seenis they have satisfied down to the present day. There were

also provisions for land allotments on the parts of the reser-

vation not ceded.

Besides valuing the yielded land as of February 28. 1877

at $17.100.000, the Commission determined that the sum

of $450,000 would compensate for the gold removed by

ininers before the taking date. )

_ The instant claim has had a long history and. as an occa-

sion for lawyers’ work and effort. a distinguished one. For

yf expr has been so far unrewarding. We consider

it here to the extent necessary ; :

7b beth ary to evaluate appellant’s res

By Act of June 3, 1920, 41 Stat. 738, the Congress pro-

vided a special jurisdiction for this court to adjudicate ap-

pellees’ claims. It enacted : we

ty i That all claims of whatsoever nature which the

wre Tribe of Indians may have against the United

States may be submitted to the Court of

eS bart AVAILABLE

el LM

Claims * * * for determination of the amount, if any.

due said tribe from the United States under any treaties,

agreements. or laws of Congress, or for the misappro-

priation of any of the funds or for land= of said

tribe * * * or for the failure of the United States to

ay said tribe any money or other property due; and

jurisdiction is hereby conferred upon the Court of

Claims * * * to hear and determine all legal and equi-

table claims, if any, of said tribe against the United

States, and to enter judgment thereon.

Sec. 2. That if any claim or claims be submitted to

said courts they shall settle the rights therein, both legal

and equitable, of each and all the parties thereto, * * *

The instant claim was presented as one among thirteen.

and was dealt with, in a reported decision atmost twenty-two

vears later. Siour Tribe of Indians v. United States. 97

Ct. Cl. 613 (1942). cert. denied, 318 U.S. 789 (1943). Whether

this decision was on the merits, and thus res judicata of the

claim, or any portion thereof. or whether it merely held the

court had no jurisdiction, is the somewhat bizarre question

the parties have debated, below and here. and which we must

now decide. All the rest of the claims were also dismissed

for one reason or another.

After passage of the Indian Claims Commission Act, 25

U.S.C. $70 and ff.. in 1946 the then counsel for the Tribe

in 1950 resubmitted the Biack Hills claim. The theory then

was unconscionable consideration and dishonorable dealings

under & 70a (3) and (5). It was assumed then that the 1942

decision did net bar these claims by res judicata or collateral

estoppel decause claims under paragraphs (3) and (5) were

new causes of action that were moral in nature and not

insticiable under the Special Jurisdictional Act of 1920. De-

fendant, however, stated in its answer that recovery was

denied in the 1942 decision “for want of jurisdiction.” Even

if defendant had not altered its construction, obviously we

wonld not take the parties’ pleadings as binding us as to

the meaning of our own reported decision. The Commission

entered an order of dismissal and this court published an

affirming opinion, 146 F. Supp. 229 (1956). The main reason

for the position was that the consideration was not proven

unconscionable hecause the Indians had persisted in trying

to prove the value of the property taken from them by an

improper method. The Indians by their then counsel ad-

lvitted they had been paid more than the value of the

property on the taking date.

The lidians at this point retained new counsel who ob-

tained an order vacating our judgment of affirmance, for the

Cor ninission to reopen the proofs, and to reconsider its former

decision if it saw fit to do so. 182 Ct. Cl. 912 (pub. in 1968).

The Commission did reopen the proofs and did receive a

quantity of new evidence. In 1961 we denied a petition by

the Government for mandamus to prevent the Commission

allowing the Indians to file an amended petition and for

other extraordinary relief. See, Sioux Tribe v. United States,

205 Ct. Cl. 148, 500 F. 2d 458 (1974). |

Since the 1956 decision was withdrawn. we do not now

treat it as determinative of anything. |

The new decision of the Commission at 33 Ind. Cl. Comm.

151 (1974) is predicated on a theory of a taking by eminent

domain, and the Commission would award interest as part of

just compensation both for the land and for the pre-taking

removal of gold by the miners. The Commission order con-

templates a return of the case to it after our review for deter-

inination of offsets. but Congress later that vear enacted in

Pub. L.. 95-494, 88 Stat. 1499, that there would not be anv

offsets for food. rations. or provisions. There are said to have

heen in contemplation not many other offsets. The Indians

we hope are now near the end of the long and weary trail.

but how much they realize on the claim turns wholly or

almost wholly on the interest question, as it will be obvious.

that interest over almost 100 years would many times exceed

the principal. If we disagree with the Commission as to its

taking theory the findings would justify liability under

§ 70a ( 5). The want of fair and honorable dealings seem ob-

vious and this theory will support the award for pre-taking

gold removal as well, since under this clause. with an obliga-

Hen fo protect once assumed. injuries inflicted by third

parties are compensable. Aleut Community v. United States.

202 Ct. Cl. 182. 480 F. 2d 831 (1973) : Lipan Apache Tribe v.

T/nited States, 180 Ct. Cl. 487 (1967).

In United States v. The Goshute Tribe. 206 Ct. C1.

(1975). (App. No. 6-74. slip op, 3/17/75). we consider the

basis of a dishonorable dealing“award under the Act. If the

dealings were dishonorable, wé held an award under clause

(5) to be allowable even though the C ommmission might have

made an award under some other sections also. As ws a

pointed out, resort to that section simplifies things by av “ ling

the necessity to measure whether consideration was sep

able. As the Congress does not want the rations to be use ~

offsets, a fortiori they should not come into the or wT )

measuring the conscionability of consideration. a a

measurement had to be made, obviously, we think, the va “

of the expectations of rations in 1877 would be the value ,- :

considered, and it would be impossible to determine t =

value, antecedently considered, because the Indians won r

terminate their right to rations whenever they became bs -

perous. No one in 1877 could have foreseen that the s _

would always be poor, as the Commission right! V says. ot

impossibility of measurement makes “unconscionable consid-

eration” inapt as a basis for liability. ean

We mention this court’s requirement for a — " 4

tionship” in Goshute, if dishonorable dealings Via . is is

found. We say “Such a ‘special relationship arises ~ -

United States officials tender a Treaty to Indians for a i

sion.” (Slip op. p. 4). A Treaty was tendered the Sioux for

adhesion in 1876. However. breach of the obligation to

tect the Indians’ lands from unwanted intruders, as prom-

ised in the 1868 Treaty. reneged on another special pag

ship. The duplicity of President Grant’s course an . a

duress practiced on the starving Sioux, speak for a “

A more ripe and rank case of dishonorable clea oe w

never, in al! probability, be found in our history, which is we :

taken a¢ a whole, the disgrace it now pleases some persons to

~ Ghe Cnnntedests taking theory founders on the bar of

res judicata. As if doubtful of its reading of the a

the Commission strained to find an abandonment of this -

fense by the Government. Defendant did say in its pleadings

that we held we had no jurisdiction in 1942. but explains :

meant we had no jurisdiction of claims that were oe

not legal. Until after the remand by this court. the oe

was actively prosecuted on the new moral grounds crea ¢

by the 1946 Act. The Government shows it gave clear —

that it relied on res judicata as to any matters properly “

fore the 1942 court. After 1969, when it was clear the Indians

relied on a taking theory, the defendant debated the theory

in full reliance on the 1942 case. We think the Commissior

should have accepted the Government explanation of its

pleadings, as do we. When it came to write its decision it was

well aware the 1942 decision had not been stipulated out of

the case. Our policy, and the Commission’s. has been to be

lenient with the Indians as to whether their original petition

allegations, filed before the jurisdictional cutoff, stated the

claim on which they were ultimately to recover. It will not do,

in cases under the same Act, to trap the Government in

pleading allegations that were at best. ambiguous.

It must be a rare thing for a court to write findings and an

opinion totalling 76 pages in length, all just to say it has no

jurisdiction. This is, however. the Commission’s position as

to our 1942 decision. Indeed. the Commission really imputes

a gross impropriety to this court in making a whole series of

positive pronouncements on the legal rights of the parties—

in a case over which it holds it has no jurisdiction ! The best

refutation would be to'set forth the opinion at least. in toto,

but we cannot on such a seale reprint material already avail-

able. in face of our over-large printing bills. It is no longer

possible to follow the old practice of making such extensive

quotes from prior opinions, as used to be usual. In this in-

stance the opinion to be quoted also contains numerous long

quotes from opinions still earlier which of course are all

also directly available. Therefore we assume the interested

reader will obtain our 1942 opinion. We set forth the rationale

of that opinion, as we understand it, and next take up the

specific passages that are alleged to reveal an admission of

no jurisdiction.

The 1942 court, as we read it, analyzed the claim as moral

rather than legal. The opinion starts out by saying the claim

is for alleged taking for public purposes, or misappropria-

tion, by defendant. The suit was specifically for just com-

pensation, with interest, for an alleged taking, but the Gov-

ernment Acts relied on did not amount to an exercise of

eminent domain in the court’s view. The jurisdictional act

did not authorize suit on moral claims. All it did was to

remove statute of limitation bars, and bars against suits by

Indian tribes, on previously existing rights.

The suit could not be maintained as for a taking because

the facts brought the case under the line of Lone Wolf v.

Hitchcock, 187 U.S. 553 (1903) and not under the line of

Shoshone Tribe of Indians v. United States, 299 U.S. 476

(1937) ; 304 U.S. 111 (1938). The former case held that it

was not a taking if the Congress, exercising its plenary power

over Indian tribes, took their land without their consent and

substituted for it something conceived by Congress to be an

equivalent. Then it would be presumed that Congress acted

in good faith for the Indians’ best interests. The Court would

inquire into neither the motives of Congress nor the suf~

ficiency of the intended consideration, as to which Congress

was the sole judge. The Shoshone line was explained as

cases where the Indian land was taken and turned over to

others without any real or purported equivalent.

Thus it was perfectly correct to say this court held it had

no jurisdiction of “unconscionable consideretion” and “dis-

honorable dealing” claims, these being moral and therefore

outside the scope of the jurisdictional act. It is not correct

to say it held it had no jurisdiction of the taking claim. The

Act was broad enough to open the court to any legal claim,

but it had to be a legal claim existing independent of the

availability of a forum open to suit, for the jurisdictional

act neither created nor enlarged pre-existing legal rights.

The claim for a taking was well wituin the jurisdictional act,

but the proofs, it was held, showed no taking. It would not

have mattered if the jurisdictional act had been broader, so

far as the taking claim was concerned. There was just no

valid taking claim, whether a tribunal was provided for its

enforcement or not.

It is necessary to understand that the right to just com-

pensation jn case of an eminent domain taking is conceived

by the caurt to exist independently of whether the sovereign

has provided any forum in which it can be sued.

In further explanation of the 1942 decision, it should be

said that while refusing to determine the adequacy of the

compensation proffered by the Government for the land, tie

court was manifestly impressed by the found fact that the

expenditure for rations for the Sioux had already reached the

;

figure of $45,000,000, a substantial sum in those days. This

court, too, in considering the moral claims in the withdrawn

1956 decision, deemed the consideration for the land more

than adequate. It never apparently occurred to the court

either time that the rations were to compensate, not for the

land, but for prior destruction of the Indians’ mode of sub-

sistence, as found by the Congress in enacting Pub. L, 93-494,

supra, U.S. Code, Cong. & Ad. News, 93d Cong. 2d Sess. 6112-

6115 (Senate Rep.) A few years ago this court, in an effort to

synthesize the Lone Wolf v. Hitchcock and the Shoshone lines

of cases, suggested that in cases of purported exercise of

trusteeship control over Indian affairs, and purported substi-

tution of one property right for another, the test to bring a

case into the Lone Wolf line is whether Congress made a

“good faith effort” to ascertain and obtain for the Indians

the value of the land. Three Affiliated Tribes of the Fort

Lertheld Reservation v. United States, 182 Ct. Cl. 543, 553,

390 F. 2d 686, 691 (1968). In our 1942 decision this test is not

articulated, and whether if it had been the same result would

have been reached is far from obvious, but need not be and is

not considered here, since, as will appear. the bar of res

judicata is not lifted if a later court disagrees with a prior

one.

We now consider the passages in the 1942 decision relied

on by the Commission to establish that this court held it had

no jurisdiction even of the taking claim.

The first quotation at 33 Ind. Cl. Comm. 199, is from the

court’s introductory statement at p. 616. It is twisted by the

Commission into an admeasurement of our jurisdiction. This

quotation from the 1942 opinion says the question is:

* * * whether, as a matter of law, the plaintiff tribe has

a legal or equitable claim under section 1 of the Juris-

dictional Act * * *

This was not intended as a discussion of the scope of the Act

referred to. The court does this elsewhere and shows that in

its opinion the special Jurisdictional Act created no new

rights but granted jurisdiction of any legal claim that ex-

isted previously, and only wanted a tribunal in which the

United States consented to be sued. It cannot therefore mean.

as the Commission apparently would have it. that section 1

of the Jurisdictional Act is to be looked to as somehow the

source of the claim. The court said at p. 666 :

jurisdicti t so far

at bar the jurisdictional act, excep

as re a the competency of the ae — ace =

weet aed edie am

the limitation on our general jurisdi whe

j the statute of limitation,

259, title 28, U.S.C., as well as t A wy bare apes

d no new right or claim in favor ribe not

pr oon within the limits of our general jurisdic

ie. °***

The second, 33 Ind. Cl. Comm. 199, is from p. 658 of the

ane the legal issue

i tances narrow the legal 1s:

° Phe en nen * * * the plaintiff tribe has

legal and enforceable claim * * * upon which the

po Be authority to inquire into the wisdom of the

od reued by the Government, * * * and the ade-

nso 7 the consideration assumed * * * [Emphasis

added by ICC.]

is passage is taken out of context and read with the con-

pay means that once the taking claim is eliminated, all a

then remains is whether the court can pursue eT a

inquiries in enforcement of a moral claim. It —— | 2

with the taking claim based on a violation of property right:

by treaty.

“on at 33 Ind. Cl. Comm. 200, from the 1942 opin-

ion, at 657-58, is representative but misunderstood. It is

worth setting forth in full:

f r other property rights of plaintiff were

Where or ror ba boy the Tinited States te —.

tion of the treaty of 1868, and contrary to the au : “ ty

which Congress poceeages — the ne i th on

erni i of the parties, Wi 1

of tan bry od Aes fe under such circumstances

as to give rise to an implied contract to pay just oe

pensation for the property taken comenennaes ‘

with the misappropriation or taking. plaintiff 0 7 =

to recover. But if, under the circumstances dise yo s

the record. Congress acted within the limits of its “_" “"

ity under the law and the treaty in acquiring the -_

and hunting rights for which it mace compensation. }

plaintiff is not in our opinion entitled under the — ‘

the jurisdictional act to recover. [Emphasis added hy

IcC.]

This considers both alternatives. If plaintiffs can prove a

taking claim, they can recover. But if Congress acted within

its legal rights, they cannot. This shows clearly that the

special jurisdictional act covered the taking claim, as we now

hold.

The quote at 33 Ind. Cl. Comm. 201 explains the jurisdic-

tional act just as we have above, i.e., that it created no new

legal right but only removed the bar on the Indians suing.

The first quote at 33 Ind. Cl. Comm. 202 agrees with our

analysis, saying that in light of established legal principles

the plaintiffs cannot recover as for a taking.

The Commission's second quote on that page is from p. 667

of the court opinion. The court said that the 1868 treaty and

the 1877 act are not laws giving a valid foundation to the

claim. From this the Commission draws the staggering non

sequitur that the court believed it had no jurisdiction to hear

a claim based on violation of rights the Sioux possessed under

the Constitution. Of course, the Fifth Amendment, the part

of the Constitution involved, protects property rights made

valid by some other law. The Commission cannot think the

Fifth Amendment created the property rights it shelters, and

surely would not be surprised to learn there were property

rights before there was a Fifth Amendment, we are sure.

In its quote from the court opinion, p. 668, at 33 Ind. C1.

Comm. 204 the Commission confuses the jurisdiction of the

court with the Indians’ “legal right to complain”, concepts the

court carefully separated, and also confuses the right of the

court to pass upon the justness and fairness of what Congress

did, i.e., the moral claims, with its right to adjudicate the

taking claim, which the court had and exercised.

The series of quotes at 33 Ind. Cl. Comm. 206, 207, need

not be analyzed in detail. They all are consistent with our

view that the court considered it had jurisdiction of a taking

claim, but the Indians failed to prove a taking claim, and

that it had no jurisdiction of moral claims, which were all

the Indians proved. if they proved anything.

The Commission refers to Winnebago Tribe of Indians v.

United States, 100 Ct. Cl. 1 (1942), as confirming its under-

standing of the Sioux case. It follows the latter case and we

think the Commission has misunderstood it in the same way.

See also discussion of the 1942 case in Siowx Tribe v.

United States, 105 Ct. Cl. 725, 776-78 (1946), 64 F. Supp.

312, on pet. for cert. judgment vacated, 329 U.S. 685 (1947)

reciting over three pages the court’s handling of the taking

claim in the 1942 case, and nowhere thinking to mention the

court refused to take jurisdiction of that claim.

Chairman Kuykendall, dissenting, points to the withdrawn

decision, Sioux Tribe v. United States, 146 F. Supp. 229,

939 (1956), wherein this court, then comprised of four of

the judges who sat on the 1942 case, and one other, held that

Category (2) claims under the Indian Claims Commission

Act, 25 U.S.C. §70a could not be brought by the Sioux

because adjudicated unfavorably to them in the 1942 decision.

This gives perhaps cumulative support to a conclusion more

comfortably based on other grounds.

It is elementary that in Indian Clainfs Commission Act

proceedings a former decision on the merits by a court having

jurisdiction is a res judicata bar to further litigation of the

same claim. United States v. Southern Ute Tribe, 402 U.S.

159 (1971) ; Assiniboine Indian Tribe v. United States, 1928

Ct. Cl. 617, 121 F. Supp. 906, cert. denied. 348 U.S. 863

(1954). Res judicata was defined in Cromwell v. County of

Sac, 94 U.S. 351, 352-3 (1876), in the following terms by

Mr. Justice Field:

In considering the operation of this judgment. it

should be borne in mind, as stated by counsel, that there

is a difference between the effect of a judgment as a

har or estoppel against the prosecution of a second

action upon the same claim or demand, and its effect

as an estoppel in another action between the same par-

ties upon a different claim or cause of action. In the

fotmer case, the judgment, if rendered upon the merits.

constitutes an absolute bar to a subsequent action. /¢

concluding parties and those in privity with them, nof

only as to every matter which rras offered and received

* to sustain or defeat the claim or demand, but as to any

other admissible matter which might have been offered

for that purpose. Thus. for example. a judgment rend-

ered upon a promissory note is conclusive as to the

validity of the instrument and the amount due upon it.

although it be subsequently alleged that perfect defences

actually existed, of which no proof was offered. such

as foreerv. want of consideration. or payment. Tf such

defences were not presented in the acti

: action, and estab-

lished by competent evidence, the subsequent Tension

of their existence is of no le j

zal consequence. ' -

ment is as conclusive, so far as future od! cg:

law are concerned, as thong] existed.

‘ gh the defen

The language, therefore, which is on often eae, that

a judgment estops not only as to every ground of re-

covery or defence actually presented in the action, but

also as to every ground which might have be presented

18s strictly accurate, when applied te tie dant or claim

in controversy. Such demand or claim, havi

into judgment, cannot again be brought into litigation

between the parties i

preens ae Best les In proceedings at law upon any

_ But where the second action betw

15 upon a different claim or eel ie ohenon ye

the prior action operates as an estoppel only as to those

matters in issue or points controverted, upon the deter-

mination of which the finding or verdict was rendered.

In all cases, therefore, where it is sought to ly the

estoppel of a judgment rendered upon one cause of action

fo matters arising in a suit upon a different cause of

action, the inquiry must always be as to the point or

question actually litigated and determined in ee igi-

oe —, hoe: ya might have been thus litigated

ermined. Only u i

ment conclusive in I ao ag ey ow

The difference in the operation of a jud i

hae! aoe cases mentioned is pode ‘aan h all -

d adjudications t i

(Ranphiesds cpetieah upon the doctrine of estoppel.

This classic comparison of rcs judi i

ris judicata (same claim) and

col lateral estoppel (different claims) still provides a oe

= definition of res judicata. Lawlor vy. National Screen

ervice Corp., 349 U.S. 322, 326 n. 6 (1955) ; United States

Moser, 266 U.S. 236, 241 (1924). ices ‘

Although hard, the doctrine that even erroneous decisions

have res judicata effect is ancient in American law and of

highest authority. See, Williams v. Armroyd, 11 U.S. (7

Cranch) 423, 432-33 (opinion by Chief Justice Marshall)

¢ ete : a v. Meyer, 311 U.S. 457, 462 ( 1940) ; Chicot

ounty Drainage District v. Baxter St

371, 373-76 (1940). miipeetnesanes

Nor do any escape hatches appear. Unlike Lawlor, supra,

there is no conduct by the parties subsequent to 1942 to create

a new cause of action. And unlike Oerlikon Machine Tool

Works Buehrle & Co. v. United States, 121 Ct. Cl. 616, 102

F. Supp. 417 (1952), vacated on other grounds, 138 Ct. Cl.

457, 151 F. Supp. 332 (1957), all of the necessary facts were

pleaded in the original suit.

Since in 1942 this court did, rightly or wrongly, hold on

the merits. in a cause it had jurisdiction of, that the Sioux did

not have a valid claim against the United States on account

of the taking of Black Hills, and since it also held it had no

jurisdiction of moral claims relating to the same matter, an

since in waiving other defenses the Congress did not waive

res judicata defenses in the Indian Claims Commission Act.

the Sioux are now restricted to moral claims under categoric-

(3) and (5) of Sec. 70a, on which interest cannot he awarded

as part of just compensation. The Congress which wiped out

the rations offset could correct this situation al, but we are

without the power to do so. On the ground of dishonorable

dealings under category (5). the record made supports the

Commission’s Order except as to interest, brit including the

pre-taking removal of gold by miners. The canse is remanded

for further proceedings consistent with this opingon

Rate IN

AFFIRMED IN PART,

PART AND REMANDED

Davis, Judge. dissenting in part: eae Soe

I disagree with the court’s holding that the decision in 97

Ct. Cl. 618 (1942), cert. denied. 318 US. 789 (1945), is 7es

ad judicata of the Fifth Amendment taking claim now pre-

sented by the Sioux Nation.’ _

It is not easy to apply the general principles of former

adjudication to this court’s decision in 97 Ct. Cl., and both

sides can readily cite different parts of cag Nm nn

r to support the respective positions. The key. as I s

it. is that he 1949 court oean an Indian Fifth Amend-

ment claim into two distinct parts—the first being whether

there was any “taking” or “misappropriation” at all, and

the other being the amount of compensation to be paid by

the Government for the “taking.” The court thought it had

1I concur in the court's other rulings. including that the United States is

not precluded from raising the defense of res judicata.

power, under the normal jurisdictional act, to determine he

former issue but, in considering whether the constitutional

measure of “just compensation” had been paid for the “tak-

ing”, the court felt that it had no competence to weigh or take

account of the consideration given the Indians by the United

States unless the special jurisdictional act so provided in ex-

plicit terms—which in this instance it did not. On this view.

the court refused to assess at all the money or value given by

the Government in exchange for the Black Hills. It would

hot decide. because it believed it could not, whether or not

this consideration amounted to “just compensation.”

The rule we apply today is quite different. In Indian Fifth

Amendment cases, we now take account of, and assess, the

consideration given by the United States in deciding whether

“just compensation” has been given. Three Affiliated Tribes

of the Fort Rerthold Reservution y. United States. 182 Ct. Cl.

o£}, 390 F. 2d 686 (1968): Alamath and Modoc Tribes vy.

usted States, 19% Ct. Cl. 670, 689 n. 25, 436 F. 2d 1008, 1017

ne 2a. cert. de nied, 404A US. 950 (1971) : Con federated Salish

aud Kootenai Tribes v- United States. 193 Ct. Cl. 801. 805.

IT FP. 2d 458, 459-60 (1971). For purposes of res judicata,

the formal issue thus becomes whether this is simply a change.

since 1942, in the substantive law of just compensation for

Indians or whether it is attributable to a liberalized view of

the authority given the courts by the jurisdictional statutes

consenting to suit against the United States on Indian Fifth

Amendment claims.

This is a difficult question to answer but I prefer the latter

response—the so-called “jurisdictional” response *—mainly

hecanse. in my view. that is the stance taken. on the whole,

hy the 1942 court. The opinion repeatedly ties its refusal to

assess or weigh the consideration (given by the United

States) directly to the particular jurisdictional act. Sce 97

Ct. Cl. at 616 (this forms part of the court’s opinion, as is

made clear by the foreword, on the same page. to the findings

7 If the 1942 decision was based on a lack of jurisdiction in this court, under

the then special jurisdictional act. to take account of the consideration trans-

ferred by the Government. res judicata ts inapplicable because, in that case,

the earlier court would have felt precluded by a lack of jurisdiction from

delving into one of the significant elements of the Fifth Amendment claim.

See A.L.L, Restatement of the Law Second Judgments, Tent. Draft No. 1, § 48.1

(1) (9), § 61.2(1) (e), pp. 45, 123, 127-130 (1973).

of fact), 657-58, G58, 666, 668, 670, 6S1, 651-82, 682-83, 683,

685. The court also spends some time emphasizing the strict

construction to be given to special jurisdictional statutes. Sce

97 Ct. Cl. at 663-65, 682. Implicit in the whole opinion seemis

to be the notion that, except where consent to suit is given

without qualification for suits against Government corpora-

tions (97 Ct. Cl. at 664-65), there is both a general presump-

tion against suability of the United States, and also a spe-

cial presumption against opening up, for judicial serutiny,

Indian claims challenging a congressional policy deemed at

the time to be for the welfare of the Indians (97 Ct. Cl. at

665). The court’s position was that “when Congress has

desired to open up [the latter type of] claims * * ba it has

used language clearly indicating that purpose” (/bid.).

This symbiotic relationship between the terms of the juris-

dictional act and the court's right to inquire into the extent

and adequacy of the consideration is brought ont, I think, by

two sections toward the close of the 1942 opinion. Tn one the

court says (97 Ct. Cl. at 681-82) :

Plaintiff's position in substance is that one party to a

proposed transaction cannot legally fix the terms or con-

sideration and force the other party to accept them, This

is true in transactions between private parties dealing at

arm’s length and on terms of equal authority, but this

legal proposition does not follow in dealings between the

Government and Indian Tribes so as to enable the In-

dians to question in a legal proceeding the policy. wis-

dom, or authority of Congress, unless Congress hus

clearly granted to the Indians the right to do so. [em-

phasis added] In our opinion this has not hwen done for

“the [jurisdictional] act grants a special privilege to the

‘plaintiffs and is to be strictly construed and may not by

implication be extended to cases not plainly within -

terms”—[citing cases]. To hold otherwise, it would be

necessary for us to go back of the acts of August 15, 1876,

and February 28. 1877, and — into the policy as ae

as the judgment and wisdom of Congress. whie \

prompted it to act as it did and, therefore, adjudicate

and render judgment either for or against the Indians

on a moral claim. We cannot find that authority in the

jurisdictional act.

The second excerpt reads as follows (97 Ct. Cl. at 683-84) :

In reaching this conclusion we have kept in mind the

principle of eo that while the government always has

the right to tuke or appropriate any private property for

a public use, if it does so, without claim of title and with-

out compensation, there arises an implied contract under

the Fifth Amendment, and, therefore, a legal claim for

just compensation. * * * But before this general rule is

applicable to Indian cases, consideration must be given to

the question of policy and the extent of the plenary

authority of Congress to legislate in such a way as it

deems proper with reference to the management and con-

trol of the property and affairs of the Indian tribes and

the extent to which consent to be sued has been granted

[emphasis added], as well as to the circumstances and

alilens under which an implied contract will arise

under the Fifth Amendment, The facts must show not

only that there has been a “taking” or “misappropria-

tion” by the Government of land or property of the tribe

under such circumstances as will give rise to an implica-

tion of a promise or undertaking to make “just compen-

sation” [citing cases] but that Congress has, by the

jurisdictional act, which s 8 only of legal claims,

opened up the question of the fairness of what was

or of the adequacy of the consideration paid, and has

authorized the court to determine, adjudicate, and render

judgment accordingly [emphasis added].

True, the opinion speaks, in the first of these excerpts,

of “a moral claim.” But this seems to me to be because the

court automatically equates claims which cannot be vindi-

cated under the jurisdictional act—because that act should

not be read as authorizing an inquiry into fairness of con-

sideration—as necessarily “moral” claims. That does not

mean that, in the court’s eyes, these claims would fail under

the Fifth Amendment if full consent had been given. The

latter part of the second excerpt clearly separates the issue of

a Fifth Amendment “taking” from that of an inquiry into

fairness—and requires that Congress authorize Joth aspects.

“The facts must show not only that there has been a ‘taking’

or ‘misappropriation’ by the Government of land or prop-

erty of the tribe under such circumstances as will give rise

to an implication of a promise or undertaking to make ‘just

compensation’ [citing case], but that Congress has, by the

jurisdictional act, which speaks only of legal claims, opened

up the question of the fairness of what was done or of the

adequacy of the consideration paid, and has authorized the

court to determine, adjudicate, and render judgment accord-

ingly” [emphasis added]. A separate, special authorization

in the jurisdictional act to go into the fairness of the com-

pensation seems to be required, The court, in a word, thouglit

it had the jurisdiction to decide whether there had been a

“taking” but no jurisdiction to determine whether the con-

pensation paid by the (jovernment was “just.” *

In the end, the best 1 can make of the 1942 opinion is that

the terms of the jurisdictional act were so entangled in the

court’s mind with its ultimate determination adverse to the

Indians on the Fifth Amendment claim that the Government

should fail in its current defense of ves judicata. The “juri--

dictional” component seems to me to have been too large

factor in the 1942 holding to preclude the Nation from i-

right to show now that the acquisition of the Black Ill

was a Fifth Amendment taking, without just and adequate

compensation, rather than merely a violation of fair and

honorable dealings. I am not persuaded that in 1942 the

Indians had the opportunity to present their Fifth Amend-

ment claim to a tribunal which deemed itself fully empowered

to decide a!l aspects of that demand on their merits.’

3 The same theme seems to be reflected at the beginning of the opinion wheu

the court sars (97 Ct. Cl. at 657-58) :

“If the lands or other property right of plaintiff were misappropriated or

taken by the United States in violation of the treaty of 1568. and contrar)

to the authority which Congress possexsed under the treaty and the law

governing the rights of the parties, without the payment of com penaation

therefor and under each circumstances ae to give rise to an implied contract

to pay just ~ompenantion for the property taken contemporancously with the

mise ppropriation or taking, plaintiff is entitled to recover. But if. under the

cireumstances disclosed by the record. Congress acted within the limits of its

authority under the law and the treaty in acquiring the land and hunting

rights for which it made compensation, the plaintif! is not in our opinion

entitled under the terms of the jurisdictional act to recover (emphasis added)”

Note that the court separates the case in which Congress pays no “com-

pensation” from that in which it does pay some “compen<ation,” without suz-

gesting that the court can, under this jurisdictional act, decide whether the

“compensation” paid was “just.”

«Since the court does not reach the question of whether. res judicata aside.

the acquisition would be such a “tuking’ without just compensation. I do not

reach or discuss that issue.

BEST cary WMLBLE

[33 Ind. Cl. Comm. 151]

APPENDIX B

BEFORE THE INDIAN CLAIMS COMMISSION

THE SIOUX NATION OF INDIANS, et ai.,

Plaintiffs,

Vv.

THE UNITED STATES OF AMERICA,

Defendant.

Docket No. 74-B .

“

Decided: February 15, 1974

x **

OPINION OF THE COMMISSION

Vance, Commissioner, delivered the opinion of the

‘ Commission.

The plaintiffs have brought this claim under various

clauses of [152] Section 2 of the Indian Claims Commis-

sion Act, 25 U.S.C. §70a (1970), seeking additional com-

pensation for this lands and other interest obtained by the

United States under the Act of February 28, 1877, 19

Stat. 254. The plaintiffs have also amended their petition,

by leave of the Commission, to include a claim for

compensation for minerals removed from plaintiffs’ lands

by nonIndians prior to February 28, 1877.

BACKGROUND OF THE CLAIM AND ISSUES

TO BE DETERMINED

The original petition in Docket 74 was filed by the

plaintiffs on August 15, 1950. On April 5, 1954, after a

trial and the filing of briefs by the parties, the Commis-

sion issued an order dimissing Docket 74. Sioux Tribe of

Indians v. United States, 2 Ind. Cl. Comm. 646. This

determination of the Commission was affirmed by the

Court of Claims on July 7, 1956, 146 F.Supp. 229.

After obtaining new attorneys, the plaintiffs filed

before the Court of Claims motions for a new trial and to

vacate the court’s judgment of affirmance. In support of

their motions, plaintiffs alleged (1) that because of inef-

fective and inadequate counsel their claims had been

decided by the Commission on the basis of an incomplete

record; (2) that the Commission erred in not indepen-

dently investigating their claims; (3) that some of the.

Commission’s findings of fact were not supported by any

evidence; and (4) that plaintiffs’ rights should not be

prejudiced by an erroneous concession of fact by plain-

tiffs’ prior counsel. The court granted the plaintiffs’

motions to the extent it vacated its judgment of affir-

mance and remanded the case to the Commission with

instructions that the Commission [153] determine

(1) whether the claimant Indian tribes are entitled

on the basis of the statements made in support of

the above motions to have the proof in this case

reopened, and (2) if so, to receive the additional

proof sought to be offered and on the basis thereof,

together with the record already made, reconsider

its prior decision in this matter.

Sioux Tribe of Indians v. United States, App. No. 4-55

(Ct. Cl., Nov. 5, 1958).

In accordance with the court’s instructions, on Novem-

ber 19, 1958, the Commission decided to reopen the

proof in Docket 74 and announced that it would recon-

sider its previous decision. Subsequently, on November 4,

1960, the Commission allowed the plaintiffs to amend

their petition, with the result that the claims based on the

Act of February 28, 1877, 19 Stat. 254, were segregated

into Docket 74-B, and the claims based on the Treaty of

April 29, 1868, 15 Stat. 635, remained in Docket 74.

On October 29, 1968, the Commission ordered that

three questions be set for determination in Docket 74-B,

as follows:

1. What land and rights did the United States acquire

from the Sioux by the Act of February 28, 1877, C.

72, 19 Stat. 254, 1 Kappler 168, and what were the

exterior limits (a) of the land so acquired and (b) of

the area subject to the rights so acquired.

2. Was there any consideration for defendant’s

acquisition of land and rights under the 1877 Act

and, if so, what constituted such consideration.

3. If there was no consideration for defendant’s

acquisition of lands and rights under the 1877 Act,

was there any payment for such acquisition?

In response to the first question, plaintiffs submitted a

memorandum asseriing that under the 1877 act the

United States acquired:

[154] (1) The Black Hills portion of the Great Sioux

Reservation containing about 7,345,157 acres, in

which petitioners held recognized title pursuant to

Article 2 of the Treaty of April 29, 1868, supra....

(2) The right of the Sioux under Article 11 of the

1868 Treaty “to hunt on any lands north of the

[sic] North Platte, and on the Republican Fork of

the Smoky Hill River, as long as the buffalo may

range thereon in such numbers as to justify the

chase... .”

(3) The lands, interests in lands and other rights held

by the Sioux north of the North Platte River and

east of the summits of the Big Horn Mountains

pursuant to Article 5 of the 1851 Fort Laramie

Treaty and Article 16 of the 1868 Treaty....

(4) Three rights-of-way for roads through the Great

Sioux Reservation, and the right of free navigation

along the Missouri River through the reservation.

[ Plaintiffs’ Memorandum Defining Lands and Rights

Acquired by the United States Under the Act of

February 28, 1877, pp. 7-9.]

Plaintiffs’ memorandum stated that the extent of the

rights asserted in paragraphs (2) and (3) would be

determined in Docket 74.

In its response to plaintiffs’ memorandum, defendant

acknowledged that it had obtained from plaintiffs the

Black Hills portion of the Great Sioux Reservation, but

denied that it had obtained any other compensable

interest under the 1877 act.

In decisions entered in Docket 74 on July 8, 1970,

Stoux Tribe v. United States, 23 Ind. Cl. Comm. 358, and

in Dockets 74 and 74-B on November 30, 1970, Sioux

Nation v. United States, 24 Ind. Cl. Comm. 98, the

Commission determined that under Articles XI and XVI

of the 1868 treaty the plaintiffs had the right to hunt

over certain territories described in the opinions. The

Commission further determined that the plaintiffs could

recover for the loss of these [155] rights in Docket 74-B

only if they could prove that the right had a great value in

1877 than when the plaintiffs obtained them. On Decem-

ber 29, 1970, plaintiffs notified the Commission that

they did not intend to pursue their claims for loss of

Articles XI and XVI hunting rights, and did not desire

that a trial be set on the question whether any further

compensation was due them for the loss of those rights.

The remaining issue under question 1 of the Commis-

sion’s order of October 29, 1968 —plaintiffs’ claim based

on the alleged acquisition by defendant of rights of way

and the right to free navigation through plaintiffs’ reser-

vation—was not briefed by the parties until they were

instructed to do so by the Commission’s opinions of

September 13, 1972, 28 Ind. Cl. Comm. 425, 430-31,

and November 29, 1972, 29 Ind. Cl. Comm. 180, 184-86.

That issue will be determined in this decision.

In response to questions 2 and 3 of the Commission’s

order of October 29, 1968, plaintiffs’ submitted a

memorandum asserting

(1) that there was no “consideration” for the lands

and rights which the United States acquired under

the Act of February 28, 1877... ; (2) that moneys

expended by the United States under the 1877 Act

were gratuities and were not payments on a pur-

chase price for the lands the United States acquired

pursuant to the 1877 Act... ; and (3) that even if

any new benefits conferred upon petitioners by the

1877 Act were treated as either consideration or

payment for Sioux lands, interests in lands and

other rights, such consideration or payment (as the

case may be) at a maximum consisted of the 1877

capitalized value of the Government’s promises with

respect to subsistence, less the 1877 capitalized

value of the Government’s unfulfilled obligations

under the Treaty of April 29, 1868.... [Plaintiffs’

Memorandum Defining Consideration Paid by the

United States Under the Act of February 28, 1877,

pp. 11-12.]

[156] In its reply to plaintiffs’ memorandum, defendant

asserted that there was consideration for its acquisition of

lands and rights under the 1877 act, which consisted of

all monetary and property interests that passed from the

defendant to the plaintiffs under the terms of the act.

Defendant contended that through June 30, 1951, plain-

tiffs had received $52,139,223.93 in consideration, in

addition to the 900,000 acre tract of land which they

received under the 1877 act.

In its memorandum on the consideration issue, defen-

dant also raised the issue whether the decision of the

Court of Claims in Stoux Tribe v. United States, 97 Ct.

Cl. 613 (1942), cert. dented, 318 U.S. 789 (1943), bars

the plaintiffs from asserting that the 1877 act constituted

a Fifth Amendment taking of their lands. In their reply

memorandum, plaintiffs asserted that the res judicata

issue was raised prematurely, and did not respond to it.

On December 18, 1973, the Commission heard oral

argument on the res judicata issue and the other issues

presented in the parties’ consideration memoranda. We

shall determine all these issues in this decision.

Trial on the 1877 fair market value of the Black Hills

portion of the Great Sioux Reservation was held in two

parts, in November 1969 and May 1970. In this decision

we shall determine the value of plaintiffs’ land. .

By its order of November 29, 1972, 29 Ind. Cl. Comm.

180, 187, the Commission permitted the plaintiffs to

amend their petition to include a [157] claim for compen-

sation for minerals removed from the Great Sioux Reserva-

tion prior to February 28, 1877. In this decision we shall

determine the extent of the liability, if any, of the

United States for minerals removed from plaintiffs’ land

prior to its acquisition by the United States.

THE LAND ACQUIRED BY THE UNITED STATES

UNDER THE ACT OF FEBRUARY 28, 1877

In Article II of the Treaty of April 29, 1868, 15 Stat.

635, 636, the United States confirmed in the Sioux

Nation recognized title to a tract of land which became

known as the Great Sioux Reservation, and which con-

sisted mainly of all of the present State of South Dakota

west of the Missouri River. Under the Act of February

28, 1877, the United States acquired from the Sioux the

Black Hills portion of the Great Sioux Reservation, which

is the subject area of the valuation ‘in this decision. It

contains 7,345,157 acres and may be defined as follows:

Beginning at the intersection of the 103rd

meridian of west longitude with the northern bound-

ary of the State of Nebraska, then north along the

103rd meridian to the south fork of the Cheyenne

River, then down the south fork to its junction with

the north fork (Belle Fourche River), then up the

north fork of the Cheyenne to the 103rd meridian,

then north along the 103rd meridian to the 46th

parallel of north latitude, then west along the 46th

parallel to the 104th meridian, then south along the

104th meridian [158] to the northern boundary of

the State of Nebraska, then east along the northern

boundary of Nebraska to the point of beginning.

* * *

[Omitted description of Black Hills land relates to

value, which was not at issue before the court

below. |

[159] HISTORY

Long before its acquisition from the Sioux by the

United States, the potential value of the subject area was

known to Americans. During the 1850’s and 1860's

official government expeditions and priva‘e explorers and

prospectors portrayed the Black Hills as an excellent

potential agricultural and grazing area, and reported

significant discoveries of gold.

[160] In May of 1877 Lt. Col. George A. Custer com-

manded an exploration expedition into the Black Hills.

Members of the expedition discovered gold in paying

quantities. The extent of the gold field, however, was not

determined. Reports of the gold find were widely circu-

lated and greatly exaggerated by the press. As a result of

these reports, and despite a more pessimistic report by a

later government explorer, large numbers of American

prospectors and miners began to invade the Black Hills.

In addition, pressure began to be asserted against the

Government to open the Black Hills to white settlement.

In 1875 government officials decided that it would be

advisable for the United States to acquire the Black Hills

from the Sioux. In order to determine what would be a

fair price to the Sioux for the Black Hiils, President Grant

ordered that a topographical and geological survey be

conducted. He appointed Walter P. Jenney, a mining

engineer, to head the survey. Jenney was instructed to

report on the mineral, timber, and agricultural resources

of the Black Hills. After completing his explorations,

Jenney reported that he had discovered gold, that the

gold field covered an area of not less than 800 square

miles, that there was sufficient timber and flowing water

for mining operations, that the soil in the area was rich

and fertile, that at least one-twentieth of the Black Hills

area was susceptible of cultivation, and that there were

many other large areas which would afford fine grazing.

In June 1875, the Secretary of the Interior, acting

under instructions from President Grant, appointed a com-

mission to negotiate with the Sioux [161] for the cession

of the Black Hills and for the surrender of certain Sioux

hunting rights. The commission, which became known as

the Allison Commission, met with the Sioux during

September 1875. The government negotiators offered a

lower price for the Black Hills than the Sioux were

willing to accept, and the negotiations ended in failure.

After the failure of the Allison Commission to reach

agreement with the Sioux, the Grant Administration

altered its policy. In November 1875 the President

decided that the United States would no longer fulfill its

obligation under Article II of the 1868 treaty to keep

unauthorized persons out of the Great Sioux Reservation.

He ordered that the Army be removed from the Black

Hills, and that no further opposition be offered to miners

attempting to enter the hills. In addition, President

Grant, and members of his administration, began to assert

pressure against Congress for unilateral action to acquire

the Black Hills.

Without waiting for congressional action, the executive

branch precipitated the Sioux situation into a crisis. On

December 3, 1875, the Secretary of the Interior in-

structed the Commissioner of Indian Affairs to direct

agents at all agencies in Dakota and at Fort Peck to

notify the Sioux in the Yellowstone and Powder River

areas in the unceded Indian territory! that unless they

returned to their reservations by January 31, 1876, they

would be declared hostile and would be treated accord-

ingly by [162] the Army. Most of the Sioux who were in

the unceded territory during the winter of 1875-76 were

hunting with the permission of their agents, as they had a

right to do under Article XVI of the 1868 treaty.

! article XVI of the 1868 treaty provided that the area north

of the North Platte River and east of the Big Hom Mountains

was to be held and considered to be unceded Indian territory.

Furthermore, the severity of the winter made it impos-

sible for them to return to their agencies. Nonetheless, on

February 1, 1876, the Secretary of the Interior notified

the Secretary of War that his order had not been

complied with, and that the Sioux were being turned over

to the Army for appropriate military action.

In the spring of 1876 the Army commenced military

operations against the Sioux. On June 25, 1876, the

Seventh Cavalry, under the command of George A.

Custer, was defeated in a battle with the Sioux, in which

259 soldiers, including Custer, were killed. When news of

the battle reached Washington, Congress was so incensed

that it attached a rider to the appropriation act of August

15, 1876, which provided that the Sioux would receive

no further rations until they ceded the Black Hills to the

United States. Because most of the Sioux had been

disarmed and were thus unable to hunt, the provision

meant that unless the Sioux surrendered the Black Hills

they would be allowed to starve.

Despite the ultimatum contained in the appropriations

act, the commission which was appointed to negotiate

with the Sioux was unable to get more than 10% of the

adult male Sioux to assent to a cession agreement. Article

XII of the 1868 treaty provided that no cession of any

portion of the Great Sioux Reservation would be valid

unless approved by three-fourths [163] of the adult male

Sioux. Although the 1876 agreement did not satisfy the

requirements of this section, Congress effectuated its

_ terms by enacting the Act of February 28, 1877, supra.

VALUATION OF THE SUBJECT AREA

{Remainder of p. 163, pp. 164-94, and a portion of

p. 195 are omitted, since the issue of value was not

raised by respondent before the court below.]

* * *

a lh ES eC aC tae boa

Oe Y nD eee rere

[195] 1942 COURT OF CLAIMS DECISION

Plaintiffs contend that the Act of February 28, 1877,

supra, constituted a taking of the subject tract by the

defendant under the Fifth Amendment without the

payment of just compensation to plaintiffs. Defendant,

on the other hand, argues that plaintiffs’ Fifth Amend-

ment claim is barred by the doctrine of res judicata,

having been decided by the Court of Claims in Sioux

Tribe v. United States, 97 Ct. Cl. 613 (1942), cert.

denied, 318 U.S. 789 (1943). For the reasons indicated

below, we hold that plaintiffs’ Fifth Amendment claim is

not barred by the 1942 Court of Claims decision.

[196] “In order that a judgment may constitute a bar to

another suit, it must be rendered in a proceeding between

the same parties or their privies, and the point of

controversy must be the same in both cases, and must be

determined on its merits.” Hughs v. United States, 71

U.S. (4 Wall.) 232, 237 (1866). As it is clear that the

same parties are now before the Commission as were

before the court in 1942, and that the court was faced

with the same Fifth Amendment taking claim® as is the

Commission, the only question to be answered in deter-

mining whether or not the 1942 decision bars plaintiffs’

. The claim presented in this case by the Sioux Tribe

is for just compensation for the alleged taking for

public purposes or the misappropriation by the defen-

dant, by the act of Congress of February 28, 1877,

19 Stat. 254, of land and rights in land, amounting

to 73,781,826.19 acres, without the payment of com-

pensation therefor and contrary to and in violation

of articles 2, 12, 15, and 17 of the treaty concluded

April 29, 1868, ratified February 16, 1869, and pro-

claimed February 24, 1869, 15 Stat. 635 (finding 3),

and certain provisions of the treaty of September

17, 1851.

Sioux Tribe, supra, at 657.

current claim is whether that case was decided on its

merits.

It is settled that the judgment of a court dismissing a

suit for lack of jurisdiction is not a judgment on the

merits and therefore does not bar a future suit on the

same cause of action. Smith v. McNeal, 109 U.S. 426,

429 (1883); Hughs v. United States, supra; Walden v.

Bodley, 39 U.S. (14 Pet.) 156, 161 (1840); see General

Investment Co. v. Lake Shore & Michigan Southern Ry,

260 U.S. 261, 288 (1922). If, as plaintiffs argue, the

Court of Claims dismissed their claims in 1942 for lack of

[197] jurisdiction plaintiffs are not barred from reassert-

ing that claim.

The land claim in Docket 74-B is being litigated within

the confines of the Amended Petition filed by plaintiffs

on November 1, 1960, and the Answer to the Amended

Petition filed by defendant on June 28, 1966. See

Commission’s Order Designating Separate Docket Num-

bers, entered May 25, 1966. In paragraph 4 of their

Amended Petition plaintiffs allege the following:

The claim set forth herein accrued prior to

August 13, 1946, and has never been adjudicated or

otherwise acted upon by the United States or any

agency thereof except as considered in Sioux Tribe

v. United States, 97 C. Cls. 613 (1942), certiorari

denied 318 U.S. 789 (1943). In that case, the Court

of Claims ruled that it had no jurisdiction to decide

this claim under the special jurisdictional Act of

June 3, 1920, c. 222, 41 Stat. 738.

In paragraph 4 of its answer defendant responded

specifically to plaintiffs’ allegation as follows:

Answering paragraph 4, defendant admits that the

claim set forth in the amended petition accrued

prior to August 13, 1946. Defendant also admits

— a ee

that a special jurisdictional act was passed june 3,

1920, 41 Stat. 738; that an action was brought in

the United States Court of Claims under that Act

but that recovery was denied to the Sioux pett-

tioners in that case because the Court of Claims

ruled that it had no jurisdiction to grant the relief

requested. Defendant admits the correctness of the

citations reported but denies all other allegations of

paragraph 4. |emphasis added. |

It is clear that in its answer defendant has admitted that

in 1942 the [198] Court of Claims dismissed plaintiffs’

claim for lack of jurisdiction.? Therefore the question

® Defendant's only other reference to the 1942 decision in its

answer is in paragraph 30, and reads as follows:

On May 7, 1923, petitioners herein filed a petition

in the Court of Claims against the United States pur-

suant to the jurisdictional act approved by Congress

June 3, 1920, 41 Stat. 738, 4 Kappler 270, entitled

Sioux Tribe v. United States, in which they sought to

recover upon numerous claims, in a single action,

including the claims asserted in the present amended

petition. On May 7, 1934, petitioners severed their

original petition and filed separate and amended peti-

tions setting forth in Cause No. C-531-(7), 97 C.Cls

613 (1942), the same claims here involved. This action

was contested by the United States. The Court of

Claims, after a full hearing upon the claim, made

findings of fact on all matters now presented by the

amended petition although it found that it lacked

jurisdiction to grant the relief requested. There is,

therefore, no genuine issue of fact presented to this

Commission for determination. All matters alleged

were actually litigated and determined in Sioux Tribe

v. United States, 97 C.Cls. 613 (1942) and cannot be

relitigated in the present case. Petitioners are estopped

by the prior factual determinations to the Court of

Claims from relitigating the specific issues and factual

presentations urged in their amended petition.

In this paragraph defendant is alleging that plaintiffs are

collaterally estopped from relitigating any of the facts found by

| footnote continued |

whether plaintiffs’ claim was dismissed on its merits or

for lack of jurisdiction was resolved by the pleadings.

Defendant is precluded from attempting to raise that

issue now.

The Commission’s reliance on defendant’s admission

does not result in any injustice to defendant in this

instance. A close examination of the court’s 1942 deci-

sion reveals that the court did dismiss plaintiffs’ claim

solely on jurisdictional grounds, and did not rule [199]

on the merits of the Fifth Amendment taking claim. =

In stating the issue before it, for example, the court

made it clear that it was concerned primarily with

questions of jurisdiction. Thus in its introductory state-

ment on page 616 it stated,

The question now before the court under Rule

39(a) is whether, as a matter of law, the plaintiff

tribe has a legal or equitable claim under section 1

of the Jurisdictional Act on which it is entitled to

judgment under these treaties or any law of Con-

gress for any amount due from the United States as

for the misappropriation of any lands of said tribe

or for the failure of the United States to pay said

tribe any money for other property due under any

treaties or laws of Congress. [Emphasis added. |

the court in 1942. Nothing in this paragraph is inconsistent with

defendant’s prior admission in paragraph 4.

10 at oral argument, defendant’s counsel asserted that a com-

parison of the jurisdictional act under which the Sioux claim

was brought with other special jurisdictional acts indicated that

the Court of Claims did have jurisdiction over a Fifth Amend-

ment taking claim. However, the issue whether the court in fact

had jurisdiction over such a claim is not material to our deter-

mination. Our only concern in determining defendant’s res judi-

cata defense is whether the court itself believed that it had juris-

diction over plaintiffs’ claim.

In again stating the issue before it on page 658 of its

opinion, the court used the following language:

The facts and circumstances narrow the legal issue

between the parties to the question whether under

the treaties of 1851 and 1868 and the act of

February 28, 1877, the plaintiff tribe has any legal

and enforceable claim within the meaning of section

1 of the jurisdictional act upon which the court has

authority to inquire into the wisdom of the policy

pursued by the Government, pursuant to which the

acts of August 15, 1876, and February 28, 1877,

were enacted, and the adequacy of the consideration

assumed and paid by defendant for the property

acquired under those acts. [Emphasis added. }

The questions before it, therefore, as seen by the

court, were whether plaintiffs’ claim was enforceable

under the jurisdictional act, [200] and whether under the

jurisdictional act the court had the power to question

congressional policy or the adequacy of the compensa-

tion promised by the defendant under the 1877 act.

Also, at the beginning of its opinion the court set out

the requirements for recovery by plaintiffs. It was again

speaking in jurisdictional terms. It stated,

If the lands or other property rights of plaintiff

were misappropriated or taken by the United States

in violation of the treaty of 1868, and contrary to

the authority which Congress possessed under the

treaty and the law governing the nghts of the

parties, without the payment of compensation

therefor and under such circumstances as to give rise

to an implied contract to pay just compensation for

the property taken contemporaneously with the

misappropriation or taking, plaintiff is entitled to

recover. But if, under the circumstances disclosed by

the record, Congress acted within the limits of tts

authority under the law and the treaty in acquiring

the lands and hunting rights for which it made

compensation, the plaintiff is not in our opinion

entitled under the terms of the jurisdictional act to

recover. [p. 657-58, emphasis added. ]

Thus, under the jurisdictional act, plaintiffs could not

recover unless the acquisition of their property under the

1877 act was in violation of the 1868 treaty, and was

outside the scope of congressional authority under the

treaty and the law relating to Congress’ control over

Indian property. If Congress had the legal authority to

acquire plaintiffs’ property under the 1877 act, in the

court’s opinion, the jurisdictional act allowed for no

recovery by plaintiffs.

After thus stating the issues before it, and summarizing

the facts of the case, the court devoted more than two

pages of its decision to discussing the law regarding waiver

of sovereign immunity by Congress. [201] The court:

stated that special jurisdictional acts waiving such im-

munity must be strictly construed. It concluded that a

court’s jurisdiction to hear a claim must be found within

the terms of its jurisdictional act, and that no suit could

be maintained against the United States on a claim not

clearly within the terms of that act.

The court then addressed itself specifically to the

Sioux jurisdictional act.

In the case at bar the jurisdictional act, except so

far as concerned the competency of the Indian tribe

to sue and the Ifmitation on our general jurisdiction

under section 259, title 28, U.S.C., as well as the

statue of limitation, created no new right or claim in

favor of the tribe not otherwise within the limita-

tions of our general jurisdiction. Green v. Meno-

minee Tribe, 233 U.S. 558, 570, 571. Whitney v.

Robertson, 124 U.S. 190, 194, 195. [p. 666.]

The first of the cases cited by the court supports its

conclusion that special jurisdictional acts do not create

new causes of action, but rather merely permit tribes to

sue. The second case it cited, however, Whitney v.

Robertson, does not support this conclusion. Rather it

stands for the proposition that Congress has the exclusive

authority to determine whether the United States will

continue to honor treaty commitments, and that the

courts cannot be used as a vehicle to challenge congres-

sional action on the grounds that that action violates

previous treaties. When read in light of Whitney v.

Robertson, the court’s statement means that it inter-

preted the Sioux jurisdictional act as not giving it the

power to question the judgment of Congress in violating

treaty commitments to the Sioux.

[202] The courts next pronounced its holding in the

case, using the following language:

A study of the facts and circumstances of this

case, the provisions of article 12 of the treaty of

1868, the acts of Congress of August 15, 1876, and

February 28, 1877, and the application thereof to

the provisions of the jurisdictional act in the light of

the established principles governing the rights and

privileges of the Indians and the power and author-

ity of the Government in their dealings with each

other leads us to the conclusion that as a matter of

law the plaintiff tribe is not entitled to recover from

the United States as for a “taking” or “for the

misappropriation of any lands of said tribe.”

[p. 666, emphasis added. ]

It was again talking in terms of the plaintiffs’ right to

recover under the provisions of the jurisdictional act.

In our opinion, the discussion which follows, on pages

667 through 669 of the opinion, is the key to the court’s

decision. The court stated as follows:

In the case at bar the claim made by plaintiff for

compensation as for a taking of its land and hunting

rights is fundamentally predicated upon the provi-

sions of articles 2 and 12 of the treaty of 1868. This

claim is attempted to be sustained on the sole

ground that the action of Congress, with the

approval of the President, in requiring the tribe to

give up a portion of its reservation and hunting

rights to the Government was not in conformity

with the provisions of article 12 of the treaty of

1868 with reference to the consent of three-fourths

of the tribe to a cession. This is necessarily the sole

ground upon which the claim could be made

because there was no law of Congress relating to this

claim granting plaintiff any rights which have not

been faithfully fulfilled. The act of 1877 is not a law

supporting the claim because everything that act

promised has been given, and also because that

statute was the act of the Government which gave

rise to a claim of plaintiff, if it has one, under the

treaty of 1868. [p. 667.]

It is clear from this paragraph that the court inter-

preted the jurisdictional act as giving it power only to

hear legal claims ayainst [203] the United States, which

claims must have been based on violation of legal rights

possessed by the Sioux under treaties or laws of Congress.

The court was saying that plaintiffs’ claim must neces-

sarily be based on Congress’ violation of plaintiffs’ alleged

right, under Article XII of the 1868 treaty, to refuse to

cede their land, because that is the only right, granted by

treaty or act of Congress, which could possibly have been

violated by the 1877 act. It is apparent from this

paragraph that the court did not believe it had jurisdic-

tion to hear a claim based on violation of rights the Sioux

possessed under the Constitution of the United States.

After a brief digression,’* the court continued its

discussion as follows:

[204] As we shall hereinafter attempt to show, we

think there is no difference in principle insofar as any

legal claim of the plaintiff is concerned between the

1! On page 667, the court briefly distinguished the Sioux case

from Shoshone Tribe v. United States, 299 U.S. 476 (1937), and

United States v. Creek Nation, 295 U.S. 103 (1935). The court

stated that in these two cases there was an arbitrary taking by the

Government without payment or the assumption of an obligation

to pay, and under such circumstances as to give rise to an implied

obligation to pay just compensation. On the other hand, according

to the court, in the Sioux case Congress in furtherance of a policy

which it deemed for the best interest of the Sioux forced them

to sell their property to the Government in return for what Con-

gress deemed to be adequate consideration. In the Sioux case,

the court concluded, “‘[t] here is, therefore, no room for the con-

clusion that under the act of 1877 Congress impliedly promised

to pay more than what was specified therein. Baker [sic] .

Harvey, 181 U.S. 481, 492; Blackfeather v. United States, 190

U.S. 368, 373.” ,

Neither of the cases cited by the court directly support its

conclusion. Neither of them involved an alleged implied obligation

to pay just compensation. At the cited page in Barker v. Harvey,

the Supreme Court was discussing the fiduciary obligation owed

by the Government to Indian tribes. The Court stated:

But the obligation is one which rests upon the

political department of the government, and this court

has never assumed in the absence of Congressional

action, to determine what would have been approp-

riate legislation, or to decide the claims of the Indians

as though such legislation had been had. [181 U.S.

at 492.]

In Blackfeather, the Supreme Court stated that moral obligations

of the Government are for Congress to recognize and that courts

have no jurisdiction over them. Reading the statement of the

Court of Claims in light of the cases it cites, it is apparent that

the court was deciding that because Congress specified the com-

pensation to be paid under the 1877 act the court was without

jurisdiction to conclude that there was an implied promise to pay

any greater sum.

power or authority of Congress to do what it did in

this case and our authority to pass upon the justness

and fairness of what it did, and what was done in

other cases without the consent of the Indians and

contrary to the provisions of treaty stipulations. In

other words, if in the case at bar Congress had the

authority legally to do what it did, and if the action

taken and the results of that action were pursuant to

and based upon what Congress deemed in the

circumstances to be for the interest of the Indians,

as the facts clearly show was the case, the Indians

have no legal right to complain, or to maintain

under the terms of the jurisdictional act a claim for

more money, plus the addition of interest from

1877, in addition to the amount which has been and

is being paid, and will continue to be paid until the

Indians, with the assistance of the Government,

become self-supporting. [p. 668, emphasis in the

original. }

The court was saying that the S:oux case is controlled by

decisions in other cases. These cases, according to the

court, establish that with respect to plaintiffs’ legal claim

the jurisdiction of the court to pass on the justness and

fairness of what Congress did in the 1877 act is

determined by the authority of Congress to legislate as it

did. Thus {205}, if Congress had the authority to do what

it did— violate Article XII of the 1868 treaty—the court is

without jurisdiction to question the justness or fairness of

the 1877 act, and the plaintiffs have no legal claim which

the court can adjudicate under the terms of the jurisdic-

tional act.

Relying on United States v. Kagama, 118 U.S. 375

(1886), Lone Wolf v. Hitchcock, 187 U.S. 553 (1903),

and Choate v. Trapp, 224 U.S. 665 (1912), the court

then decided that inherent in the 1868 treaty, as an

implied condition, was the right of Congress to legislate

as it saw fit with respect to the Sioux, even if such action

was in violation of the specific provisions of the treaty.

The court then concluded that “[i]n essence, therefore,

the present claim is moral, rather than legal... .” p. 670.

The court’s reasoning in reaching this conclusion, al-

though not specifically stated, must have been as follows:

A legal claim by plaintiffs could be based only on a right

they allegedly possessed, under Article XII of the 1868

treaty, to refuse to cede their land. However, under the

1868 treaty Congress had the inherent power in effect to

force plaintiffs to cede their land. Therefore plaintiffs did

not have the treaty right to refuse to cede their land, and

the acquisition of their land by the United States without

their permission could not be the basis for a legal claim

under the jurisdictional act.

The court devoted the remainder of its opinion to a

discussion of what it described as plaintiffs’ “‘moral

claim.” It concluded that it had no jurisdiction to hear

this claim. The court’s language, as shown in the

following quotations, clearly establishes that it was ruling

solely on jurisdictional grounds:

[206]In essence, therefore, the present claim is

moral, rather than legal, and before we can adjudicate

and render judgment upon it, we must have from

Congress clear authority to do so, which authority,

we think, under the rule announced in the Price and

Osage cases [Price v. United States and Osage

Indians, 174 U.S. 313], and other cases cited, supra,

was not conferred by the jurisdictional act. We must

presume in the circumstances of this case that

Congress acted in good faith. [p. 670.]

We must presume that Congress acted in perfect

good faith in the dealings with the Indians of which

complaint is made, and that the legislative branch of

the Government exercised its best judgment in the

premises. In any event, as Congress possessed full

power in the matter, the judiciary cannot question

or inquire into the motives which prompted the

enactment of this legislation. If injury was occa-

sioned, which we do not wish to be understood as

implying, by the use made by Congress of its power,

relief must be sought by an appeal to that body for

redress and not to the courts. [p. 673, quoting Lone

Wolf v. Hitchcock, supra, 187 U.S. at 568.]

... but this legal proposition does not follow in

dealings between the Government and Indian Tribes

so as to enable the Indians to question in a legal

proceeding the policy, wisdom, or authority of

Congress, unless Congress has clearly granted to the

Indians the right to do so. In our opinion this has

not been done for “the [jurisdictional] act grants a

special privilege to the plaintiffs and is to be strictly

construed and may not by implication be extended

to cases not plainly within its terms’’ [citations

omitted]. To hold otherwise, it would be necessary

for us to go back of the acts of August 15, 1876,

and February 28, 1877, and inquire into the policy

as well as the judgment and wisdom of Congress

which prompted it to act as it did and, therefore,

adjudicate and render judgment either for or against

the Indians on a moral claim. We cannot find that

authority in the jurisdictional act. [p. 682.]

... But before this general rule is applicable to

Indian cases, consideration must be given to the

question of policy and the extent of the plenary

authority of Congress to legislate in such a way as it

deems proper with reference to the management and

control of the property and affairs [207] of the Indi-

an tribes and the extent to which consent to be sued

has been granted, as well as to the circumstances and

conditions under which an implied contract will

arise under the Fifth Amendment. The facts must

show not only that there has been a “taking” or

“misappropriation” by the Government of land or

property of the tribe under such circumstances as

will give rise to an implication of a promise or

undertaking to make “just compensation” [citation

omitted], but that Congress had, by the jurisdic-

tional act, which speaks only of legal claims, opened

up the question of the fairness of what was done or

of the adequacy of the consideration paid, and has

authorized the court to determine, adjudicate, and

render judgment accordingly. [citation omitted.]

[p. 683-84. ]

The jurisdictional act confers no equitable juris-

diction such as would be applicable to the claim

here presented. . . . In the absence of a clear grant of

authority by Congress, we have no jurisdiction to go

behind the acts of Congress and inquire into any

moral obligation of the Government or to determine

whether what the Congress agreed to pay, and has

paid, was adequate compensation for that which the

Indians were required to surrender. [citation

omitted]. This phase of the claim clearly was not

considered by Congress when the jurisdictional act

was enacted and we cannot consider and adjudicate

it unless and until Congress has unmistakably

indicated its intention that we should do so [p.

685.]

The court concluded its opinion with an analysis of the

legislative history of the jurisdictional act, which it found

sustained its ruling that it was without jurisdiction to

grant plaintiff any relief.

Our conclusion that the court dismissed plaintiffs’

claim for lack of jurisdiction is further supported by an

examination of defendant’s brief before the court,

plaintiffs’ motion for a new trial, and defendant’s brief in

response thereto. In its brief defendant set out the

jurisdictional limitations which faced the court in dealing

with plaintiffs’ [208] claim. It argued that the court was

constrained to assume that Congress acted in good faith

and exercised its best judgment; that the court was

without jurisdiction to question the exercise of legislative

power; and that if plaintiffs were in fact injured by

congressional action it was from Congress rather than the

courts that they must seek relief. Specifically with regard

to plaintiffs’ allegation of inadequate compensation,

defendant stated,

Needless to say, there is no specific or even implied

authorization given in the jurisdictional act which

would enable the plaintiffs to raise the issue of

inadequacy of consideration. The grant of jurisdic-

tion in this case is over claims arising under treaties,

agreements, or laws of Congress, and not over claims

in contravention thereof. [Vol. 922 Court of Claims

Printed Record, Docket C-531-(7) p. 582. Emphasis

in original. ]

It is clear that defendant was urging the court to refuse

jurisdiction over plaintiffs’ claim.

In its motion for new trial, filed July 28, 1942,

plaintiffs asserted only one error of law in the court’s

opinion—the court’s holding that it had no jurisdiction to

grant any relief to plaintiffs. Plaintiffs argued that the

jurisdictional act did give the court jurisdiction to

determine whether plaintiffs had been paid just compen-

sation for their lands. In its brief in response to plaintiffs’

motion defendant argued that the court was correct in

dismissing plaintiffs’ claim for lack of jurisdiction. Thus,

immediately after the court’s decision both parties were

of the belief that the case had been decided on

jurisdictional grounds.

[209] The court itself, only four months after its deci-

sion, stated that the Sioux case had been decided on juris-

dictional grounds. In Winnebago Tribe of Indians v. United

States, 100 Ct. Cl. 1 (1942), a just compensation claim

was brought under a jurisdictional act similar to that

under which plaintiffs had filed their claim. In its

opinion, decided by Judges Whitaker, Madden, Jones,

Littleton, and Chief Justice Whaley—the same five judges

who had decided the Stoux case—the court stated,

... Congress, acting as the guardian of an Indian

Tribe, has the power to take from it one reservation

and to give to it another, if it thinks that this is for

its best interest, and in the absence of express

Congressional authorization this Court has not the

power to determine whether or not just compensa-

tion was paid for the one taken. We went into this

entire question in great detail in an opinion rendered

through Judge Littleton in the case of Stoux Tribe

of Indians v. The United States, No. C-531-(7),

decided June 1, 1942. In that opinion the whole

question was carefully and exhaustively discussed.

The decision in that case is determinative of the case

at bar. (97 C. Cls. 613; certiorari denied, 318 U.S.

789.) [100 Ct. Cls. at 6.]

We conclude that Sioux Tribe v. United States, supra,

(97 Ct. Cl. 613), was not decided on its merits. Plaintiffs’

Fifth Amendment taking claim is therefore not res

judicata and may be asserted here.!?

[210] Having decided that the 1942 Court of Claims de-

cision does not bar plaintiffs’ Fifth Amendment claim, the

Commission must still determine the collateral estoppel

effect, if any, of that decision. Defendant argues that the

Commission is bound by all the factual determinations

made by the Court of Claims and cannot readjudicate

them. Plaintiffs, on the other hand, argue that because

the court did not have jurisdiction over their claim none

of its factual determinations are binding in this litigation.

The Commission concludes that neither of the parties’

contentions is correct.

It is a general principal that a court of competent

jurisdiction always has the power to determine its own

jurisdiction over cases before it. See Stoll v. Gottlieb, 305

U.S. 165, 171 (1938); Texas & Pacific Ry. v. Gulf,

Colorado & Santa Fe Ry., 270 U.S. 266, 274 (1926)

Moore’s Federal Practice | 0.405 [.4-1], at 641 (1965).

It follows that the Court of Claims had the power to

determine the extent of its jurisdiction to grant plaintiffs

12 As an alternative ground for rejecting defendant's res judi-

cata defense, we note that defendant’s sole reference to the 1942

decision in its answer, aside from its admission in paragraph 4,

was in paragraph 39, quoted in footnote 9, supra. In this para-

graph defendant is alleging that plaintiffs are collaterally estopped

from relitigating any of the facts found by the court in 1942.

Defendant is not alleging, in paragraph 39, that plaintiffs’ claim

is res judicata by virtue of the 1942 decision, nor does it make

such allegation elsewhere in its answer. Under sections 11(b) and

11(h) of the Commission’s General Rules of Procedure, promul-

gated July 4, 1947, and which were in effect when defendant

filed its answer in Docket 74B, defendant’s failure to affirma-

tively plead the cefense of res judicata constitutes a waiver of

that defense. Defendant is therefore precluded from asserting

that defense now.

the relief they were seeking. Necessarily, it also had

jurisdiction to make those factual determinations essen-

tial to its jurisdictional decision. Thus, the rule that

determinations of a court lacking jurisdiction are void

and not binding is not controlling here.

On the other hand, it does not follow that all of the

factual determinations made by the court are binding on

the Commission. In order that collateral estoppel apply,

the following requirements must be met: the issue sought

to be determined must be the same as that involved [211]

in the prior litigation; it must have been actually litigated

in the prior litigation; it must have been judicially deter-

mined in the prior litigation; and the determination of the

issue must have been essential to the judgment in the prior

litigation. Moore, supra, 0.443. No factual determina-

tion made by the court in 1942 is binding on the

Commission unless it satisfied all of these requirements.

In adjudicating plaintiffs’ Fifth Amendment claim we

are concerned with three issues: (1) whether in acquiring

plaintiffs’ lands under the 1877 act Congress made a good

faith effort to give the Sioux the full value of their lands

(see Three Affiliated Tribes of the Fort Berthold Reserva-

tion v. United States, 182 Ct. Cl. 543, 390 F.2d 686

(1968), discussed infra); (2) the amount of the compensa-

tion paid by the United States for plaintiffs’ lands; and

(3) whether that payment constitutes just compensation

for plaintiffs lands. We are of the opinion that none of

these issues was conclusively determined by the court’s

decision.

The issue whether Congress made a good faith effort to

give the Sioux full value for their lands was not decided

by the Court of Claims in these exact terms. To

determine whether plaintiffs are nevertheless estopped

from urging that Congress did not make such an effort

the Commission must determine whether such a conten-

tion is necessarily inconsistent with the court’s adjudica-

tion of any material and litigated issue before it. See

Moore, supra, 90.443 [2], at 3903-04. We have been

unable to find any such adjudication.

[212] Initially, we doubt whether the court could have

made any determination inconsistent with plaintiffs’ con-

tention. Under the court’s interpretation of the Sioux

jurisdictional act it lacked the power to question whether

Congress was acting in good faith. At two points in its

opinion the court specifically stated that it must presume

that Congress acted in good faith. See pages 670 and 673

(quoting Lone Wolf v. Hitchcock, supra). Furthermore,

even if the court was not precluded from doing so by its

ruling on its jurisdiction, it in fact made no determination

which would preclude plaintiffs’ theory of recovery.

We have examined the 21 findings of fact entered by.

the court. We have found no factual determination

relating to an effort (or lack thereof) by Congress to give

plaintiffs the value of their land. In examining the court’s

opinion we have found only two recitations that might

possibly relate to this issue. The first is on page 667. The

court said,

In the case at bar, the Congress, in an act enacted

because of the situation encountered and pursuant

to a policy which in its wisdom it deemed to be in

the interest and for the benefit and welfare of the

Indians of the Sioux Tribe, as well as for the

necessities of the Government, required the Indians

to sell or surrender to the Government a portion of

their land and hunting rights on other land in return

for that which the Congress, in its judgment,

deemed to be adequate consideration for what the

Indians were required to give up, which considera-

tion the Government was not otherwise under any

legal obligation to pay.

The crucial words here are “pursuant to a policy which in

its wisdom it deemed to be in the interest and for the

benefit and welfare of the [213] Indians,” and “for that

which the Congress . . . deemed to be adequate considera-

tion for what the Indians were required to give up... .”

The first phrase does not relate to an attempt to give full

value. It means only that Congress believed that restrict-

ing the Sioux to a smaller reservation would aid them in

adapting themselves to farming and herding as means of

subsistence, and that removal of the Black Hills from the

reservation would allow the Sioux to live free from the

costly warfare with white miners. The second phrase

means only that Congress thought the payments it

pledged were adequate compensation for the Sioux lands.

It is not a determination that Congress attempted to

measure these payments against the value of the Sioux

lands. Certainly in both the school land portion of the

Fort Berthold litigation (Three Affiliated Tribes, supra,

182 Ct. Cl. at 558-60), and in the Confederated Salish

case (Confederated Salish and Kootenai Tribes v. United

States, 193 Ct. Cl. 801, 437 F.2d 458 (1971)), Congress

deemed what it paid for the Indian lands to be adequate

consideration. This fact did not preclude the court in

either case from concluding that Congress did not make a

good faith effort to give the Indians what their land was

worth.

The second possibly binding determination is on page

668, There the court stated,

Congress possessed the authority to take the action

of which the plaintiff complains, and since the

record shows that the action taken was pursuant to

a policy which the Congress deemed to be for the

interest of the Indians and just to both parties [214]

there was no misappropriation of the land by the

TTT

Government and the court may not go back of the

acts of 1876 and 1877 and inquire into the motive

which prompted the enactment of this legislation or

the wisdom thereof.

Again, the court’s finding that the 1877 act was pursuant

to a policy which Congress believed to be just and in the

interest of the Sioux is not inconsistent with plaintiffs’

contention that Congress did not in good faith attempt to

pay the Sioux the full value of their land. The court’s

conclusion that there was no misappropriation of plain-

tiffs’ lands, in the context of the paragraph and the entire

opinion, means only that the 1877 act was not an

arbitrary seizure of plaintiffs’ lands.

As the question whether Congress made a good faith

effort to give the Sioux the full value of their lands was

not at issue and was not judicially determined in the

Court of Claims litigation, plaintiffs are not collaterally

estopped from arguing that Congress did not make such

an effort.

Defendant argues that the Court of Claims in its 1942

decision determined the amount of “consideration” that

had been paid under the 1877 act through June 30, 1926,

and that the Commission is bound by that determination.

In its finding of fact 20 the court found as follows:

By article 5 of that act, the Government assumed

an obligation to continue to appropriate and expend

such sums as should be necessary for such subsis-

tence “until the Indians are able to support them-

selves” in return for the Black Hills and hunting

rights acquired, and, also added 900,000 acres of

grazing land to the permanent reservation. The total

of the sums annually appropriated by the Congress

to June 30, 1926, in fulfillment of this purpose, for

subsistence of the Indians of the Sioux Tribe, inclu-

ding [215] the $3,055,450.53 for the fiscal years

1875 and 1876, was $39,993,962.50, for none of

which any legal obligation rested upon the Govern-

ment other than that assumed and provided for in

the act of February 28, 1877. Amounts appro-

priated for subsistence subsequent to 1926 bring

this total to approximately $43,000,000.

As we have stated above, collateral estoppel does not

apply unless the issue sought to be determined was

actually litigated in the prior litigation. As the Sioux

decision was entered under the court’s Rule 39(a), which

limited the issue to the plaintiffs’ right to recover,'* the

questions actually litigated in that stage of the case can

be found in the parties’ briefs and proposed findings. We

have carefully examined the briefs and proposed findings

of fact submitted to the Court of Claims by the parties.

Neither party proposed any finding of fact relating to the

amount of “consideration” that had been paid under the

1877 act. Neither party in their brief made any reference

to the “consideration” paid under the act. We must

conclude that the “‘consideration” issue was [216] not

13 Rule 39(a)

In every Indian case unless otherwise ordered by the

Court or stipulated by the parties, the hearing in the

first instance shall be limited to the issues of fact and

law relating to the right of the plaintiff to recover, and

the Court shall enter its judgment adjudicating that

right. If the Court holds in favor of the plaintiff, the

judgment shall be in the form of an interlocutory

order, reserving the determination of the amount of

the recovery and the amount of offsets, if any, for

further proceedings. After the entry of such an inter-

locutory order, either party may move for a new trial

under the provisions of Rules 91 to 97, inclusive. [This

rule was promulgated by the court on May 1, 1939,

as an amendment to its 1936 Rules.]

litigated before the court and that collateral estoppel does

not apply to the court’s finding on this issue.

On page 685 of its opinion the court stated, “In the

absence of a clear grant of authority by Congress, we

have no jurisdiction ...to determine whether what the

Congress agreed to pay, and has paid, was adequate

compensation for that which the Indians were required to

surrender.” The court accordingly did not determine

whether what Congress agreed to pay under the 1877 act

constituted just compensation for plaintiffs’ lands. The

Commission is therefore free to make its own determina-

tion on this issue.

FIFTH AMENDMENT TAKING

In dealing with Indian property, Congress can act in

either of two capacities. First, it can exercise a guardian-

ship over the property, derived from its constitutional

power over Indian affairs. Secondly, it can exercise its

eminent domain power and take the property, in which

case it must pay just compensation. Klamath and Modoc

Tribes v. United States, 193 Ct. Cl. 670, 684-85, 436

F.2d 1008, 1015 (1971); Three Affiliated Tribes, supra,

182 Ct. Cl. at 552-53. In the Fort Berthold case the court

set out the proper guideline to be used in determining

which of its two powers Congress has used in dealing with

Indian property. If Congress has made a good faith effort

to give the Indians the full value of their land, there has

been no taking. Congress has merely performed the tradi-

tional ficuciary function of transmuting [217] property

into money. If, on the other hand, Congress has failed to

make such an effort, there has been a taking, and the

United States can be liable if just compensation was not

in fact paid. Three Affiliated Tribes, supra, 182 Ct. Cl. at

553. Application of this guideline to the facts of this case

——

leads the Commission to conclude that the 1877 act

constituted a taking of plaintiffs’ property.

An examination of the terms of the 1877 act makes it

clear that Congress made no effort to give the Sioux the

full value of their land. The major obligations undertaken

by the United States under the act are set out in Article

5, which we have quoted in finding of fact 81. In this

article the United States agreed, with some conditions;

(1) “*to provide all necessary aid to assist the said Indians

in the work of civilization;” (2) “to furnish to them

schools and instruction in mechanical and agricultural

arts, as provided by the treaty of 1868;” and (3) “[t]o

provide the said Indians with subsistence... until the

Indians are able to support themselves.”’ The first of these

promises was stated in such general terms that it is

impossible to ascertain its value. The second promise, as

it states, was not a new obligation on the part of the

United States. Rather it was a reaffirmation of an

obligation already owed under the 1868 treaty.

The third promise—to feed the Sioux—is the only

promise that might have some relationship to the value of

the property acquired by the United States from the

Sioux under the act. However, this obligation [218] was

undertaken subject to several conditions. First, no rations

were to be supplied unless the Sioux fulfilled every

obligation thrust upon them by the act. Second, rations

were to be furnished only until the Sioux were consid-

ered able to support themselves. Third, no rations were to

be supplied to children between the ages of 6 and 14

unless they attended school. Fourth, no rations were to

be supplied to any Sioux located on lands suitable for

cultivation unless those Indians also provided labor.

Given these conditions, it was impossible to determine, at

the time the 1877 act was enacted, the extent of the

obligation being undertaken by the United States in

exchange for the Sioux property. In short, the amount of

money, if any, which the United States was obligated to

spend under Article 5 of the act was indefinite and

uncertain. The obligation undertaken by the United

States under Article 5 clearly had no relationship to the

value of the property it was acquiring from the Indians.

Moreover, there is no indication in the record that

Congress attempted to relate it to the value of plaintiffs’

land.

We conclude that Congress did not make a good faith

effort to give the Sioux the full value of their property.

Congress was therefore not acting as guardian for the

Sioux with respect to this property, but was exercising its

power of eminent domain in order to allow Americans to

freely use the subject area. We hold that the Act of

February 28, 1877, supra, constituted a Fifth Amend-

ment taking of plaintiffs’ property.

[219] COMPENSATION

As we have already indicated, the 1876 agreement did

not comply with the terms of the 1868 treaty. It

therefore did not effect a transfer of plaintiffs’ property

to defendant. Rather, defendant acquired plaintiffs’

property by means of a unilateral taking under the 1877

act. As the concept of “consideration” necessitates a

contractual relationship between the parties (see Nez

Perce Tribe v. United States, Docket 175, 24 Ind. Cl.

Comm. 429, 433 (1971), and authorities cited therein), it

follows that no “consideration” has been paid to the

plaintiffs for their lands. Whatever compensation has

been received by plaintiffs must be considered payments

on the claim.

In determining the extent of the compensation re-

ceived by plaintiffs for their property taken under the

1877 act, defendant is entitled to credit, as payments on

the claim, for the value of all property transferred to

plaintiffs under the act, and for all expenditures on

behalf of the Sioux made by the United States in

fulfillment of the new obligations assumed under the act.

Under the Indian Claims Commission Act, the burden

of proof with respect to payments on the claim is on the

defendant. In the context of this case, this burden

requires defendant to establish that all expenditures

which it asserts as payments on the claim were actually

made in compliance with the terms of the 1877 act. De-

fendant will receive no credit, as [220] payments on the

claim, for expenditures not in compliance with the act.

Defendant must also establish the market value of any

property which it claims that it transferred to plaintiffs

under the act.

In meeting its burden of proof, defendant must relate

each expenditure that it claims to a specific obligation

assumed under the act. General designations, such as

“payment in fulfillment of the Act of February 28,

1877,” will be insufficient to entitle defendant to any

credit. Nor can defendant receive credit for any expendi-

ture made in furtherance of obligations assumed under

other treaties or acts of Congress.

Compensation under the 1877 act, with the exception

of property actually transferred to plaintiffs by the act,

was not all paid at the time of taking. Rather, under

Article 5 of the act, payment of compensation was

deferred over time. For the purposes of this case it will be

convenient to consider the compensation as having been

paid on an annual basis. Defendant is entitled to credit

for this compensation as of the time it was paid.

As plaintiffs’ property was taken under the Fifth

Amendment, plaintiffs were entitled to receive just

compensation. Such compensation consists of the fair

market value of plaintiffs’ property on the date of taking,

plus interest on that amount from the date of taking until

it is paid. See United States v. Klamath and Modoc

Tribes, 304 U.S. 119 (1938); Shoshone Tribe v. United

States, 299 U.S. 476 (1937); Seaboard Air Line Ry v.

United States, 261 U.S. 299 (1933); United States v. Rog-

ers, 261 U.S. [221] 299 (1921). The proper rate of inter-

est to be applied in Fifth Amendment taking claims before

the Commission is 5%. Three Affiliated Tribes of the Fort

Berthold Reservation v. United States, Docket 350-F, 28

Ind. Cl. Comm. 264 (1972), appeal docketed, No. 27-72

(Ct. Cl., December 21, 1972).

Interest on the value of plaintiffs’ property (principal),

as part of just compensation, began to accrue on

February 28, 1877, the date of taking. Interest on the

remaining unpaid principal continued to accrue each year

until the time, if it has yet occurred, when the principal

was fully paid. Thus, in making expenditures in fulfill-

ment of the 1877 act, defendant was obligated to pay

both principal and accrued interest.

The proper method for allocating deferred Fifth

Amendment payments between principal and interest was

established by the court in Uintah and White River Bands

v. United States, 139 Ct. Cl. 1, 152 F.Supp. 953 (1957),

and has been followed by the Commission in Ponca Tribe

v. United States, Docket 323, 24 Ind. Cl. Comm. 339,

347-48 (1970), aff'd in part, remanded in part, 197 Ct.

Cl. 1065 (1972), Three Affiliated Tribes, supra, 28 Ind.

Cl. Comm. 264, and Lower Sioux Indian Community v.

United States, Docket 363 (Second Claim, Act of 1904),

33 Ind. Cl. Comm. 51 (1974). This method apportions

payments between principal and interest according to the

following formula:

Unpaid principal + accumulated Amount of deferred

interest = payment

Unpaid principal Portion of payment

allocated to principal

[222] In this case it will be necessary to apply this formula

on a year by year basis to determine how to apportion each

year’s payment between principal and interest. In this

formula as applied to this case, the figure for accumu-

lated interest will include the current year’s interest

accrual plus the remaining unpaid interest from previous

years. If, in applying this formula on a year by year basis,

the point is reached where principal has been completely

paid, interest will cease to accrue, and all further

payments will be charged against previously accrued

interest.

We have briefly examined the accounting reports

submitted by the defendant in the Court of Claims

litigation and those submitted to the Commission, which

reports we assume will be relied on by defendant to

support its assertions of payments on the claim. We are of

the opinion that these reports are not in a form which

would allow the Comm

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.