Petition — Harbolt v. United States

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EN a A REN ED | eR

In the Supreme Court of the United States |

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

S10UX NATION OF INDIANS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

Louis F. CLAIBORNE

Deputy Solicitor General

WILLIAM ALSUP

Assistant to the Solicitor General

DirK D. SNEL

JUDITH WELCH WEGNER

Attorneys

Department of Justice

Washington, D.C. 20530

Page

2 apc ee, OTE eae al 1

TU cl 1

Question presented 2... ence eeoeeeecnene 2

Statutory provision involved 2

Se 3

Reasons for granting the petition... 8

oN ERR oe ae: ee 15

ee ee ee la

Ap ee T1la

CITATIONS

Cases:

Lane v. Pueblo of Santa Rosa, 249 U.S.

LB SINS Eo Se ee 10

Lone Wolf v. Hitchcock, 187 U.S. 553 __.. 5, 8,9

Miami Tribe of Oklahoma v. United

mates, 1 Foes. 12

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

sig, OORT STE SY oR 11

Sioux Tribe v. United States, 500 F.2d —

OP mabe ol 5

Sioux Tribe of Indians v. United States,

97 Ct. Cl. 618, cert. denied, 318 U.S.

Fer aaa ES Yt to 4,5, 10

Tee-Hit-Ton Indians v. United States, 348

CU Cee ie 13

II

Cases—Continued Page

Uintah & White River Bands of Ute In-

dians v. United States, 152 F. Supp.

nh tale REDD PPP, Mig IC Aa CSN NTRP 12

United States v. Creek Nation, 295 U.S.

pS ET a REPRE EI CLERC | ED ST 11

United States v. Klamath & Moadoc

TPE, Oe a BO lids. i 11

United States v. Sioux Nation, 518 F.2d

1298, cert. denied, 423 U.S. 1016 .......... 6

United States v. Tillamooks, 341 U.S. 48.. 13

Yankton Sioux Tribe v. United States,

ee Wits I ieee te a 11

Constitution, treaty and statutes:

United States Constitution, Fifth Amend-

ment (Just Compensation Clause) ........ 2, 3, 5,

| 6, 7, 8, 9, 11, 12

Treaty of April 29, 1868, 15 Stat. 635 -.... 4

pi St) eens 4

Act of March 3, 18638, ch. 92, 12 Stat.

767 ‘ 7

Act of February 28, 1877, ch. 72, 19 Stat.

BET sistent tig tins sali an Sis cima dinaalenmgeaeonies 2,4

y= |.” i RaeRiecelnae ram tem doabbiuaihacend 2

Apilele Bn ... 3

Act of June 3, 1920, ch. 222, 41 Stat.

TO i sccincs : ASH nee 5

Act of October 27, 1974, Pub. L. No. 93-

494, 88 Stat. 1499 _.......... 7

Act of March 13, 1978, Pub. L. No. 95-

243, 92 Stat. 158 .... 6, 14

-e-——--=— eee —

Ill

Constitution, treaty and statutes—Continued Page

Indian Claims Commission Act of 1946,

ch. 959, 60 Stat. 1049, 25 U.S.C. 70

I eleeiocadaia hts sicatene Aschsnasitinencsussadnes 5, 7

section 2, 26 U.S.C. 70a .................... eS

Section 20(b), 25 U.S.C. 70s(b) ...... 6

28 U.S.C. 1505, as added by Section 89 (a)

of the Act of May 24, 1949, ch. 139, 63

UIE ibcckocdcahntbenSaice ti 7

Miscellaneous:

H.R. Rep. No. 1466, 79th Cong., 1st Sess.

<< _ | RRR ieee Sembee oe Ree Ora aE Pe 7

Hoyt, Jurisdiction of the Court of Claims,

BED Me Ooty Re RY occa oi ceceesccsetsccceee 7

. a

6

In the Supreme Court of the United States

OCTOBER TERM, 1979

No.

UNITED STATES OF AMERICA, PETITIONER

v.

S10UX NATION OF INDIANS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Claims in

this case.

OPINION BELOW

The opinion of the Court of Claims (App. A, infra,

la-70a) is reported at 601 F.2d 1157 (1979).

JURISDICTION

The opinion of the Court of Claims, determining

liability against the United States, wus filed on June

13, 1979 (App. A, infra, 1a-70a). On July 31, 1979, a

(1)

2

final judgment against the United States was entered

(App. B, infra, 71a-73a). On September 11, 1979, the

Chief Justice extended the time for filing a petition

for a writ of certiorari to and including October 29,

1979. The jurisdiction of this Court is invoked under

28 U.S.C. 1255(1).

QUESTION PRESENTED

Whether legislation which divests an Indian tribe

of a portion of its lands in consideration of an under-’

taking to provide material assistance and food rations

as long as needed amounts to a “taking” under the

Just Compensation Clause of the Fifth Amendment

so as to entitle the tribe to interest on a later award

for the value of the lands.

STATUTORY PROVISION INVOLVED

The Act of February 28, 1877, ch. 72, 19 Stat.

254, provides in pertinent part:

That a certain agreement * * * is hereby ratified

and confirmed * * *,

Article 1. The said parties hereby agree that

the northern and western boundaries of the

reservation defined by article 2 of the treaty be-

tween the United States and different tribes of

Sioux Indians, concluded April 29, 1868, and

proclaimed February 24, 1869, shall be as fol-

lows * * * and the said Indians do hereby re-

linquish and cede to the United States all the

territory lying outside the said reservation, as

herein modified and described, including all

——————

a

-

~

3

privileges of hunting; and article 16 of said

treaty is hereby abrogated.

* * * * *

Article 5. In consideration of the foregoing

cession of territory and rights, and upon full com-

pliance with each and every obligation assumed

by the said Indians, the United States does agree

to provide all necessary aid to assist the said

Indians in the work of civilization; to furnish to

them schools and instruction in mechanical and

agricultural arts, as provided for by the treaty

of 1868. Also to provide the said Indians with

subsistence consisting of a ration for each in-

dividual * * *. Such rations, or so much thereof

as may be necessary, shall be continued until the

Indians are able to support themselves, * * * The

Government will aid said Indians as far as possi-

ble in finding a market for their surplus produc-

tions, and in finding employment, and will pur-

chase such surplus, as far as may be required,

for supplying food to those Indians, parties to

this agreement, who are unable to sustain them-

selves; and will also employ Indians, so far as

practicable, in the performance of Government

work upon their reservation.

STATEMENT

1. Respondents, several tribes included within the

Sioux Nation of Indians, seek to recover just com-

pensation, together with interest from 1877, for an

alleged Fifth Amendment taking by the United

States, when, in that year, Congress removed ap-

proximately seven million acres (including the gold-

rich Black Hills) from the Great Sioux Reservation.

4

By virtue of the Treaty of April 29, 1868, with the

Sioux Indians, 15 Stat. 635, 636, the United States

had assured that this Reservation, including the land

removed from it in 1877, would be “for the absolute

and undisturbed use and occupation of the Indians.”

The Act of February 28, 1877, ch. 72, 19 Stat. 254,

256, which removed the seven million acres in ques-

tion,’ promised to provide the Sioux with specified

rations “until the Indians are able to support them-

selves.” *? Subsequently, rations valued at approxi-

mately $43 million were provided (App. A, infra,

9a, 13a).

The removal of the Black Hills from the Sioux

Reservation has been the subject of litigation in the

* In addition, the Act redefined the boundaries of the Great

Sioux Reservation, giving the Indians approximately 900,000

acres of land they had not previously had (see App. A, infra,

13a n.3). By virtue of this 1877 Act, the United States also

acquired three rights-of-way for wagon roads through the

Reservation and abrogated Sioux hunting rights outside the

Reservation. Although the 1877 Act is phrased as an agree-

ment, that agreement was never ratified by the requisite num-

ber of Sioux, as provided in Article XII of the Treaty of

April 29, 1868, 15 Stat. 639.

*The removal of the Black Hills from the Great Sioux

Reservation by the United States followed upon a period of

increasing friction in the area between Indians and non-

Indians during which time non-Indian miners repeatedly

entered upon these lands in hopes of extracting gold reported

to exist in the vicinity, and Lt. Colonel George Custer was

defeated at the Battle of the Little Big Horn. These historical

events are more fully described in the opinion of the Court of

Claims in this case (App. A, infra, 5a-7a), and in its 1942

decision which initially rejected the Sioux Nation’s claim,

Sioux Tribe of Indians v. United States, 97 Ct. Cl. 618 (1942),

cert. denied, 318 U.S. 789 (1943).

5

Court of Claims on a number of occasions in the past

37 years. The claim that this removal constituted a

Fifth Amendment taking of tribal land was first

raised in that court pursuant to a special jurisdic-

tional act * in 1942. The Court of Claims held at that

time that, under the doctrine of Lone Wolf v. Hitch-

cock, 187 U.S. 553 (1903), no Fifth Amendment tak-

ing had occurred. Sioux Tribe of Indians v. United

States, 97 Ct. Cl. 618 (1942), cert. denied, 318 U.S.

789 (1943).

Following enactment of the Indian Claims Com-

mission Act of 1946, ch. 959, 60 Stat. 1049, 25 U.S.C.

70 et seq., a second round of litigation was commenced

by respondents before the Indian Claims Commission.‘

The Indian Claims Commission ultimately held that

the 1877 Act had effected a Fifth Amendment taking,

and awarded as just compensation more than $17 mil-

lion, indicating that accrued interest at the rate of

57% per annum would also be charged against the

United States. 33 Ind. Cl. Comm. 151, 221, 362-363

3 Act of June 3, 1920, ch. 222, 41 Stat. 788.

* The Indian Claims Commission initially held that no claim

for dishonorable dealings or unconscionable conduct had been

proved. 2 Ind. Cl. Comm. 646 (1954). The Court of Claims

affirmed. 146 F. Supp. 229 (1956). In 1957, the Sioux moved

for a new trial, claiming inadequacy of prior counsel, and

requested that the Court of Claims vacate its 1956 judgment

of affirmance and remand for reconsideration based on both

the existing record and such additional proof as might be

offered. In 1958, the Court of Claims granted the motion in

part, remanding to the Indian Claims Commission for a

determination whether the record should be reopened. See

182 Ct. Cl. 912 (1968). See also Sioux Tribe v. United States,

500 F.2d 458, 475-477 (Ct. Cl. 1974). It was.

6

(1974). The Court of Claims held that the Commis-

sion’s finding of a Fifth Amendment taking was

barred by the Court of Claims’ 1942 decision as res

judicata. Nevertheless, it held that the Sioux were

entitled to recover the principal amount of the Com-

mission’s award without interest. United States v.

Stoux Nation, 518 F.2d 1298 (Ct. Cl.), cert. denied,

423 U.S. 1016 (1975). ori:

In 1978, however, Congress amended Section 20(b)

of the Indian Claims Commission Act of 1946, 25

U.S.C. 70s(b), so as to direct the Court of Claims

to review the merits of the 1974 Indian Claims Com-

mission decision without regard to the defense of

res judicata or collateral estoppel. Act of March 13,

1978, Pub. L. No. 95-248, 92 Stat. 153.5 The judgment

now presented to this Court results from that review.

The Court of Claims, sitting en banc, held, over

two dissents, that the United States was liable for a

Fifth Amendment taking in connection with the re-

moval of the Black Hills portion from the Great Sioux

Reservation. This was exactly opposite to the con-

clusion reached by the court in its 1942 decision on

the same record and on the same Supreme Court

precedents. In reaching this new conclusion, the

Court of Claims reasoned that Congress had not

acted in good faith to give the Indians the full value

5 Final judgment was not entered following the 1975 de-

cision of the Court of Claims pending further proceedings

before the Indian Claims Commission. The Act of March 13,

1978, then intervened, opening the question whether a taking

_ had been effected necessitating the payment of interest. No

payment pursuant to the court’s 1975 decision has been made.

7

of their land (App. A, infra, 25a-28a).° It stated that

Lone Wolf v. Hitchcock, supra, was not controlling

precedent because this Court, in that case, had not

reached the question whether enactment of legislation

appropriating Indian lands in return for specified

compensation constituted a taking for purposes of the

Fifth Amendment (App. A, infra, 28a-38a).’ Hav-

* Although the Black Hills portion of the Reservation was

valued at approximately $17 million and approximately $43

million had been expended to provide the promised rations

(App. A, infra, 2a, 18a), Congress specifically provided in

1974 that no offset could be claimed for these expenditures.

Indian Claims Commission Act of 1946, 25 U.S.C. 70a, as

amended by Act of October 27, 1974, Pub. L. No. 93-494, 88

Stat. 1499. The Court of Claims held, contrary to respond-

ents’ contentions, that the 1974 legislation did not bar judicial

consideration of these federal expenditures for purposes of

making the threshold determination of whether the Sioux

were entitled to recover for a Fifth Amendment taking (App.

A, infra, 14a-15a n.4).

* Judge Nichols, concurring, joined on this point by Judges

Bennett and Kunzig, dissenting, questioned this analysis,

reasoning that although the Indian plaintiffs in Lone Wolf

had stated a claim under the Fifth Amendment, they had

sought only declaratory and injunctive relief, rather than

compensation, because of t!» limits on jurisdiction over

claims by Indians in effect at the time (App. A, infra, 40a-

44a, 49a-54a). See Act of March 3, 1863, ch. 92, 12 Stat. 767 :

H.R. Rep. No. 1466, 79th Cong., 1st Sess. 2 (1945) 7 Hoyt,

Jurisdiction of the Court of Claims, 115 Ct. Cl. xxi, xxvii

(1950). While the Sioux and certain other tribes were at

times allowed to sue by virtue of special legislation granting

jurisdiction over particular claims of those tribes, it was not

until more than 40 years after the decision in Lone Wolf that

Congress enacted legislation providing more generally for re-

covery on Indian claims. See Indian Claims Commission Act

of 1946, 25 U.S.C. 70 et seq.; 28 U.S.C. 1505, as added by

Section 89(a) of the Act of May 24, 1949, ch. 139, 63 Stat.

102.

|

8

ing found that a Fifth Amendment taking had oc-

curred, the Court of Claims held that the United

States would be liable, not only for the value of the

property taken, but also for interest from the date

of taking, February 28, 1877 (App. A, infra, 2a,

33a, 39a).

A final judgment in the amount of $17,553,484,

plus interest at 5% per annum on the sum of $17,-

103,484 of said amount, was accordingly entered

(App. B, infra, 73a).° The present petition chal-

lenges only the award of interest.

REASONS FOR GRANTING THE PETITION

The decision of the Court of Claims is inconsistent

with this Court’s ruling in Lone Wolf v. Hitchcock,

187 U.S. 553 (1903), disregards its own precedents,

and unduly restricts congressional power to manage

Indian property. The result is an award of more than

$105 million which represents a substantial and un-

warranted charge against the public fisc and invites

like awards in other pending cases.

1. It has long been settled that, under certain

conditions, Congress unilaterally may divest an In-

dian tribe of a part of its lands, even in derogation

of an earlier treaty, without exercising the power of

8 The Court of Claims reversed the decision of the Indian

Claims Commission insofar as the Commission had held that

the United States was liable for a Fifth Amendment taking

in connection with the removal by miners of gold valued at

$450,000 from the Black Hills prior to the enactment of the

1877 legislation. Accordingly, the Court of Claims determined

that interest at the rate of 5% per annum would be payable

only on the sum of $17,103,484 (App. B, infra, 73a).

“ Se ee -

9

eminent domain. In such circumstances, if inadequate

consideration was paid for the lands, the Indian

Claims Commission Act of 1946 (25 U.S.C. 70a)

permits the Tribe to recover the net deficiency, but

without interest. On the other hand, it is equally

well settled that some appropriations of Indian land

amount to a “taking” within the meaning of the

Just Compensation Clause of the Fifth Amendment,

in which event the Tribe is entitled to recover the

value of the property at the time of taking plus

interest to the date of payment. The question pre-

sented in this case is how we determine which is

which.

a. Until the present decision, it was generally

accepted that the definitive answer had been given by

this Court in Lone Wolf v. Hitchcock, supra. It was

there held that whenever the operative statute “pur-

port[s] to give an adequate consideration” for the

lands appropriated, the courts “must presume that

Congress acted in perfect good faith * * * exer-

cis[ing] its best judgment” in effecting “a mere

change in the form of investment of Indian tribal

property,” and that, in those circumstances, “the

judiciary cannot question or inquire into the motives

which prompted the enactment of [the] legislation.”

187 U.S. at 568. If that standard had been followed

here, it seems obvious the Tribe’s “taking” claim must

have been rejected. For, on its face, the Act of 1877

(supra, pages 2-3) purports to ratify a consensual

“agreement” which expressly recites governmental

undertakings to provide various forms of assistance,

10

including a specific promise of “subsistence” rations

[t]n consideration of the [previously described] ae

sion of territory and rights.” Indeed, this is precisely

the rationale of the 1942 decision of the Court of

Claims, denying the very claim asserted here. Sioux

Tribe of Indians vy. United States, 97 Ct. Cl. 613

670 (1942), cert. denied, 318 U.S. 789 (19438).

On this occasion, the Court of Claims sought to

avoid the controlling precedent of Lone Wolf by giv-

ing that decision an artificially narrow reading. In

effect, the majority construed Lone Wolf as irrelevant

to a claim for just compensation (App. A, infra, 28a-

33a). Yet, as the court itself noted (id. at 31a n.6)

the Indians in that case “were arguing that the Court

should prevent actions which, [they] believed, would

result in an unconstitutional taking if not promptly

enjoined.” Since the Indians then had no remedy at

law to obtain just compensation, the Court, it seems to

us, had to conclude that the challenged statute would

work no unconstitutional taking, else an injunction

would have issued. See Lane v. Pueblo o f Santa Rosa

249 U.S. 110 (1919). In this respect, we believe

Judge Nichols, concurring (App. A, infra, 39a-48a)

and Judges Bennett and Kunzig, dissenting (id. at

48a-53a), have the better of the argument.

6. But even if Lone Wolf be laid aside as inap-

plicable, the decision below would encounter other

obstacles. The Court of Claims has now reversed the

presumption, attributing bad faith to Congress sim-

ply because it failed expressly to say that it was

giving fair value for the lands appropriated—albeit

11

it never suggested that it was not doing so, and, as

it turned out, was in fact overgenerous. See App. A,

infra, 18a, 25a-28a.° With one questionable exception,

this is unprecedented in the jurisprudence of both this

Court and the Court of Claims.

In this Court, the only decisions concluding that

there had been-a Fifth Amendment “taking” of In-

dian lands are instances in which no payment, or

only a derisory payment, had been made. E.g., United :

States v. Creek Nation, 295 U.S. 108 (1935); Sho-

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

United States v. Klamath & Moadoc Tribes, 304 U.S.

119 (1938).*° See also Yankton Sioux Tribe v. United

States, 272 U.S. 351 (1926)." And the pattern in

the Court of Claims has been the same. To be sure,

® The linchpin of the holding below is the court’s conclusion

that “[t]here is no reason to believe” and “no indication that

Congress believed” its commitment to provide rations was

equivalent to full value for the Black Hills (App. A, infra,

22a, 26a-272a).

10 The majority here (App. A, infra, 32a n.7) invokes the

Klamath case as an instance of a Fifth Amendment “taking”

where some compensation was paid. The dissenting opinion

argues (id. at 55a-57a) that the payment was an after-

thought. At all events, the sum was less than 4% of the true

value of the lands. See id. at 32a n.7.

11In Three Affiliated Tribes of the Fort Berthold Reserva-

tion v. United States, 390 F.2d 686 (Ct. Cl. 1968), the court

cited three precedents for the proposition that “the Govern-

ment has frequently been held liable for just compensation

under the Fifth Amendment, despite payment on its part to

the Indians for the land taken.” 390 F.2d at 695. The first is

the Klamath case, already noted. The other cases are in no

sense precedents, bothing involving takings without any pay-

12

the ruling so much relied on here, Three A ffiliated

Tribes of the Fort Berthold Reservation v. United

States, 390 F.2d 686 (Ct. Cl. 1968), did treat as a

“taking” an appropriation of school sections for which

substantial—albeit grossly inadequate—payment had

been made. But that was on the ground that the

measure of compensation was arbitrary on its face

and could not therefore be assumed a good effort to

pay full value. 390 F.2d at 694-695. Even that con-

clusion was later criticized. See 204 Ct. Cl. 831, 834-

835 (1974). At all events, the case bears no resem-

blance to this one.

We question also whether the approach followed

here is consistent with the intent of Congress in the

framing of the Indian Claims Commission Act, un-

der which the case arises. Insofar as it applies to

“recognized” title, the statute permits Indian tribes

to recover both for constitutional “taking[s]” and in

respect of transactions vitiated by fraud, duress,

mistake or “unconscionable consideration.” 25 U.S.C.

70a. But it was presumably contemplated that most

ment, but inadequate congressional appropriations 26 and 32

years later. See Uintah & White River Bands of Ute Indians

v. United States, 152 F. Supp. 958 (Ct. Cl. 1957) ; Miami

i of Oklahoma vy. United States, 281 F.2d 202 (Ct. Cl.

12 We put to one side cases under the “fair and honorable

dealings” clause of the Act which, by definition, do not in-

volve claims under the Fifth Amendment. For the most part,

these are instances in which the United States appropriated

aboriginal Indian lands, the tribal “title” to which had never

been recognized, and the appropriation of which, absent spe-

cial legislation, gives rise to no claim for compensation,

ee ee

aon cee hana alin armas

13

claims based on “recognized” title would fall in the

latter class, involving inadequate consideration paid

for Indian lands, whether ceded by the Tribe or ap-

propriated unilaterally. The present holding, if gen-

erally followed, would defeat that expectation. For,

if divesting a Tribe of a portion of its lands in return

for an undertaking that in fact provides more than

a fair equivalent be deemed a “taking,” carrying

interest, so must, it would seem, instances in which a

Tribe yielded up lands wanted by the government for

less than full value.

2. The monetary consequence of the decision below

is substantial. In this instance, it multiplies the basic

award six-fold, to reach a total of some $105 million,

the largest judgment, we are informed, ever entered

by the Court of Claims. Nor does this case stand

alone. At least a dozen cases still pending in the Court

of Claims may be governed by the rule announced

here, with like effect. There is, moreover, a considera-

tion of evenhanded treatment. To date, all successful

claims based on inadequate consideration—as opposed

to no payment at all—have been awarded without in-

terest, with only the relatively insignificant exception

of the school lands in the Fort Berthold case, supra.

What is more, in many cases, offsets have substantial-

ly reduced the recovery. It may not be seen as equal

justice if the present claimants, who received benefits

far exceeding the value of the lands involved but were

exceptionally excused from offsets, are allowed to

much less interest on the award. See Tee-Hit-Ton Indians

v. United States, 348 U.S. 272 (1955); United States v.

Tillamooks, 341 U.S. 48 (1951).

14

recover by way of interest many times the value of

what they lost.

It may be that the court below was influenced to

make this unprecedented ruling because Congress had

taken the unusual step of re-opening a case otherwise

barred by res judicata and had indicated its acqui-

esence in an award carrying interest. See App. A,

infra, 38a-39a. But the Act of March 13, 1978,

Pub. L. No. 95-243, 92 Stat. 153 (App. A, infra, 4a-

5a), did no more than waive the jurisdictional bar,

The controlling legal principles were not changed. No

doubt, Congress is free to make as generous a pay-

ment for the Black Hills as it chooses. But neither

the Court of Claims nor this Court properly can be

asked to bend the rules when the Legislative Branch

throws out a hint as to the result it hopes for, while,

at the same time, directing the Judicial Branch to

determine a constitutional question on the merits.

In our submission, the Court of Claims should have

adhered to its correct decision of 1942 insofar as it

then concluded that there had been no “taking * * *

in violation of the fifth amendment.” Whatever the

explanation for the different course followed here, the

present decision creates a precedent that may well

embarrass future litigation, at very substantial cost

to the national treasury. It ought not stand unre-

viewed.

a ee ew PS

rt ie my pee wt hl aly om my

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

OCTOBER 1979

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LouISsS F. CLAIBORNE

Deputy Solicitor General

WILLIAM ALSUP

Assistant to the Solicitor General

DirK D. SNEL

JUDITH WELCH WEGNER

Attorneys

ee

ee She So ne cele el a ee

oe —e

la

APPENDIX A

IN THE

UNITED STATES COURT OF CLAIMS

No. 148-78

(Decided June 13, 1979)

S10UX NATION OF INDIANS, ET AL.

Vv.

THE UNITED STATES

Arthur Lazarus, Jr., attorney of record, for plain-

tiff. Marvin J. Sonosky, Sonosky, Chambers &

Sachse, and William Howard Payne, of counsel.

Craig A. Decker, with whom was Assistant At-

torney General James W. Moorman, for defendant.

Before FRIEDMAN, Chief Judge, CowEN, Senior

Judge, DAvIs, NICHOLS, KUNZzIG, BENNETT, and

SMITH, Judges, en bane.

_ OPINION

FRIEDMAN, Chief Judge, delivered the opinion

of the court:

2a

The issue in this case, here on appeal from the

Indian Claims Commission under a special jurisdic-

tional statute described below, is whether the Com-

mission correctly held that an 1877 statute under

which the United States acquired certain lands from

the Sioux Indians constituted a taking of those lands

for which the United States was required to pay just

compensation under the fifth amendment. The Com-

mission found the fair market value of the land and

other interests in it that the government thus ac-

quired was $17,553,484... The government has not

challenged that determination or contested its obli-

gation to pay that amount.

The sole question before us is whether that acquisi-

tion constituted a taking in violation of the fifth

amendment. The significance of that issue is that if

it were such a taking, the government would be

liable not only for the value of the property taken but

also for interest from the date of taking. Shoshone

Tribe of Indians v. United States, 299 U.S. 476, 497

(1937) ; United States v. Klamath and Moadoc Tribes

of Indians, 304 U.S. 119, 123 (1938). Because the

acquisition in this case occurred a century ago, the

amount of such interest would be many times the

value of the property taken. The total interest the

plaintiffs would recover if a taking occurred has been

estimated at between $90 million and $115 million.

1 This amount consisted of $17,100,000 for the land itself,

$3,484 for rights-of-way across other Sioux land, and $450,000

for gold that miners took from the land before the 1877

statute.

3a

For the reasons given below, we conclude that the

1877 Act was a taking of the Black Hills portion of

the Sioux Reservation and of rights-of-way across

other Sioux land, but that the United States did not

take the gold the miners removed from the Black

Hills prior to the 1877 statute.

I.

This is the third time this case has been before

the court on the question whether the United States’

acquisition of the particular property in 1877 consti-

tuted a taking. Under a special jurisdictional Act,

Pub. L. No. 237, 41 Stat. 738 (1920), the Sioux filed

in this court a petition seeking just compensation for

the alleged taking in 1877 of their lands and rights

therein. In 1942 the court held that under that Act

the Sioux were “not entitled to recover from the

United States as for a ‘taking’ or ‘for the misappro-

priations of any lands of said tribe.’ ” Sioux Tribe of

Indians v. United States, 97 Ct. Cl. 618, 666 (1942),

cert. denied, 318 U.S. 789 (1948).

Following the enactment of the Indian Claims

Commission Act in 1946 (25 U.S.C. § 70 et seq.),

the Sioux submitted the same claim to the Commis-

sion. Initially the Indians contended only that the

government’s acquisition of their property was made

for an unconscionable consideration and did not con-

stitute fair and honorable dealings—grounds upon

which the Commission could award damages under

25 U.S.C. § 70a(3) and (5). The Sioux, with our

- authorization, amended their petition to reassert the

4a

fifth amendment taking. See Sioux Tribe of Indians

v. United States, 182 Ct. Cl. 912 (1968) (summary

of proceedings).

After extensive proceedings, the Indian Claims

Commission, in the decision now under review, held

in 1974 that the government’s acquisition of the Sioux

lands and interest therein constituted a taking for

which the Sioux were entitled to just compensation,

including simple interest at 5 percent. Sioux Nation

v. United States, 33 Ind. Cl. Comm. 151, 362-63

(1974). On appeal, this court affirmed the award of

$17,553,484 under the dishonorable dealings provision

of the Indian Claims Commission Act, but reversed

the Commission’s finding of a taking. The court held

that its 1942 decision was res judicuta on the taking

question. United States v. Sioux Nation, 207 Ct. Cl.

234, 518 F.2d 1298 (1975), cert. denied, 423 U.S.

1016.

Congress then enacted Pub. L. No. 95-243, 92 Stat.

153 (1978), which directed that this court, upon

filing of a timely application, should

review on the merits, without regard to the

defense of res judicata or collateral estoppel,

that portion of the determination of the Indian

Claims Commission entered February 15, 1974,

adjudging that the Act of February 28, 1877

(19 Stat. 254), effected a taking of the Black

' Hills portion of the Great Sioux Reservation in

violation of the fifth amendment, and shall enter

judgment accordingly. In conducting such re-

view, the Court shall receive and consider any

additional evidence, including oral testimony,

oe Be hued awe A le

5a

that either party may wish to provide on the

issue of a fifth amendment taking and shall

determine that issue de novo.

The Sioux Nation filed an appropriate application for

review pursuant to that statute. Neither party has

submitted any additional evidence, so we decide the

case on the record in our 1942 case and the record

before the Commission in this proceeding.

Il.

The factual background for this issue begins with

the Treaty of April 29, 1868 between the United

States and the Sioux Indians (15 Stat. 635). In that

treaty the United States, among other things, (1)

established “for the absolute and undisturbed use and

occupation of the Indians” certain land in South

Dakota, including more than 7 million acres in the

Black Hills area (article II); (2) agreed that no

unauthorized persons “shall ever be permitted to pass

over, settle upon, or reside in [that] territory” (1d.) ;

(3) undertook to supply for 4 years certain food to

all Indians who settled permanently on the reserva-

tion and complied with the treaty (article X); and

(4) gave the Indians hunting rights in designated

areas outside the reservation (articles XI and XV).

The treaty further provided that no cession of any

reservation lands of the Sioux “shall be of any

validity or force” unless executed and signed by at

least three-fourths of the adult male Indians occupy-

ing or interested in those lands (article XII).

6a

In accordance with the treaty obligation, the.

United States appropriated more than $5 million to

supply food to the Indians for the 4 years following

the treaty. Although the government’s treaty obli-

gation was discharged by the appropriation for fiscal

year 1874, the government continued to make food

appropriations for the fiscal years 1875 and 1876,

which totaled $2,350,000.

Both before and when the treaty was executed, the

Indians knew that the Black Hills contained gold, but

the government had no reason to think that the

amount located there was sufficient to be valuable.

In the summer of 1874, however, an expedition com-

manded by Lt. Col. Custer explored the Black Hills

portion of the reservation, and discovered gold there

in paying quantity. News of this discovery was made

public in late August of that year. A large number

of prospectors, miners, and settlers then entered the

area without the consent of the Indians, and public

pressure to open the Black Hills developed and in-

creased.

United States military forces in the area attempted

to exclude and remove these unauthorized persons

from the area, but their endeavors were largely un-

successful. In November 1875, President Grant sec-

retly ordered the Army to stop attempting to prevent

the miners from entering the area. Although Presi-

dent Grant did not rescind prior orders forbidding

the miners from occupying the Black Hills area, those

earlier orders ceased to be effective. The government

apparently believed that the Sioux’s needs for the

Lannie mcr nah

ee

Ta

rations the government had been supplying them

would prevent the Indians from making trouble.

By 1875 the government apparently had concluded

that the only permanent solution to the hostilities that

had developed between the Indians and the settlers

in the Black Hills and among the settlers themselves

was for the government to acquire the Black Hills

portion of the reservation and for the Indians to

give up their hunting rights outside the reservation.

Preliminary attempts to induce the Indians to take

those steps through negotiations with the Sioux that

were held both in Washington and in the reservation

area were unsuccessful. In December 1875, the gov-

ernment ordered all Sioux to return to the reserva-

tion by January 31, 1876, or be treated as hostile.

The Indians who were outside the reservation were

hunting with the permission of their agents and could

not return by the deadline. The Army then com-

menced military operations against them. The climax

of the campaign against the Sioux was the famous

defeat of General Cluster at the Little Big Horn on

June 25, 1876.

Congress responded by attaching a rider to the

Indian Appropriations Act of 1876 which cut off all

rations for the Sioux until they terminated hostilities

and ceded the Black Hills to the United States. The

rider also provided that no further appropriations

for the Sioux would be made until the Indians had

entered into an agreement with the President “which

is calculated and designed to enable said Indians to

eee eee ee ee ee

Fes ONCE Tae, ET,

Sa

become self-supporting.” Act of Aug. 15, 1876, 19

Stat. 176, 192.

In August 1876, at the request of Congress, the

President appointed another commission (1876 Com-

mission) to negotiate with the Sioux for the cession

of the Black Hills and the termination of the Indians’

off-reservation hunting rights.

The 1876 Commission negotiated an agreement

with the chiefs and head men of the Sioux tribes.

The agreement stated it was made “pursuant to” the

1876 Appropriations Act. In the agreement, the

Sioux ceded to the United States the Black Hills por-

tion of their reservation and rights-of-way over

other reservation lands for access to the Black Hills.

In return, the United States agreed (1) “to provide

all necessary aid to assist the said Indians in the

work of civilization’; (2) to furnish the Indians

“schools and instructions in mechanical and agricul-

tural arts, es provided for by the treaty of 1868”;

and (3) to provide them with specified rations “until

the Indians are able to support themselves.” Where

government schools were provided, rations would not

be issued for children between the ages of 6 and 14

unless they regularly attended school. Rations would

be issued to Indians located upon land suitable for

cultivation only to those persons (other than the aged,

sick, and infirm) “who labor[ed].” See Act of Feb.

28, 1877, 19 Stat. 254, 255-56.

Less than 10 percent of the male Sioux population

aged 21 years or older approved the agreement. The

agreement, therefore, did not satisfy the requirement

9a

of the 1868 treaty that no cession of territory could

be made without the written approval of three-fourths

of the adult males. Congress then “resolved the im-

passe by enacting into law the unratified agreement”

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

States v. Sioux Nation, 207 Ct. Cl. at 238, 518 F.2d

at 1300. As a result of that Act, which “ratified and

confirmed” the agreement, the United States acquired

all of the Sioux lands in the Black Hills, and termi-

nated the Indians’ off-reservation hunting rights.

Subsequent to the Act of 1877, the United States

expended substantial amounts in furnishing rations

to the Sioux. The parties disagree over the precise

amount of those expenditures. According to the de-

fendant the United States spent approximately $43

million on rations for the Sioux from 1877 to 1942.

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

Cl. at 656, 662.

III.

A. Ordinarily, when the United States appro-

priates property interests of others, that constitutes

a taking under the fifth amendment, for which the

United States is obligated to pay just compensation.

But,

[w]hen Congress deals with the Indian property

it can act in one of two capacities. First, Con-

gress can exercise a guardianship over Indian

property, derived from its plenary power recog-

nized in the Constitution to control tribal Indian

affairs. Or it may exercise its fundamental

10a

power of eminent domain and take Indian prop-

erty, for which it must pay just compensation.

Klamath and Modoc Tribes v. United States, 193 Ct.

Cl. 670, 684-85, 436 F.2d 1008, 1015 (1971) (foot-

note omitted).

In Three Affiliated Tribes of Fort Berthold Reser-

vation v. United States, 182 Ct. Cl. 543, 390 F.2d 686

(1968), the court announced the following “guide-

line” for “identify[ing] in which capacity Congress

is acting”:

Where Congress makes a good faith effort to give

the Indians the full value of the land and thus

merely transmutes the property from land to

money, there is no taking. This is a mere sub-

stitution of assets or change of form and is a

traditional function of a trustee.

182 Ct. Cl. at 553, 390, F.2d at 691.

The court reiterated and applied that standard in

subsequent cases presenting the question whether Con-

gress’ appropriation of Indian property constituted a

taking. Klamath and Modoc Tribes v. United States,

193 Ct. Cl. at 685, 486 F.2d at 1015; Confederated

Salish & Kootenai Tribes v. United States, 193 Ct. Cl.

801, 805, 437 F.2d 458, 459 (1971).

Apparently there has been some misconception that

the “good faith effort” guideline in Fort Berthold

requires or permits an inquiry into the sub-

jective understanding and intent of Congress. See

order of March 29, 1974, in Appeal No. 17-72, The

ca aca ADR Lain LTP A tt ls. Klatt) 2

sano hewy

lla

Three Affiliated Tribes of the Fort Berthold Reserva-

tion, et al., Nichols, J., concurring, 204 Ct. Cl. 831,

833. The Fort Berthold guideline contemplated only

an objective inquiry into the nature and purpose of

the congressional action, not an attempt to determine

the subjective motive of the legislature in taking that

action. In determining whether Congress has made

a good faith effort to give the Indians the full value

of their lands when the government acquired it, we

therefore look to the objective facts as revealed by

Acts of Congress, congressional committee reports,

statements submitted to Congress by government of-

ficials, reports of special commissions appointed by

Congress to treat with the Indians, and similar evi-

dence relating to the acquisition. As hereinafter

shown, this is the kind of evidence upon which we

have relied in reaching our conclusion in this case.

The “good faith effort” and “transmutation of

property” concepts referred to in Fort Berthold are

opposite sides of the same coin. They reflect the

traditional rule that a trustee may change the form

of trust assets, as long as he fairly (or in good faith)

attempts to provide his ward with property of equiv-

alent value. If he does that, he cannot be faulted if

hindsight should demonstrate a lack of precise equiva-

lence. On the other hand, if a trustee (or the govern-

ment in its dealings with the Indians) does not

attempt to give the ward the fair equivalent of what

he acquires from him, the trustee to that extent has

taken rather than transmuted the property of the

ward. In other words, an essential element of the

PY PREP mw

12a

inquiry under the Fort Berthold guideline is deter-

mining the adequacy of the consideration the govern-

ment gave for the Indian lands it acquired. That

inquiry cannot be avoided by the government’s simple

assertion that it acted in good faith in its dealings

with the Indians.

The question in this case, therefore, is whether, in

appropriating the Black Hills portion of the Sioux

Reservation in the Act of 1877, Congress made “a

good faith effort to give the Indians the full value of

the land.” 182 Ct. Cl. at 553, 390 F.2d at 691.’

2In Klamath and Modoc Tribes v. United States, the court

noted that the government had not contested that certain

Indian lands had been “taken, in the strict eminent-domain

sense” when they were transferred to the government in 1961

pursuant to an earlier statute terminating federal control

over the Indians. 193 Ct. Cl. 670, 689, 436 F.2d 1008, 1017

(1971). In a footnote to that statement the court stated,

“The concession by the Government that there was a taking

is quite correct . . . . The ‘good faith’ principle of Fort

Berthold does not apply to acquisition of Indian land by the

Federal Government itself.” Jd. n. 25. The plaintiff argues

that under that qualification there is no need here to consider

“good faith,” since the fact that the United States acquired

the Black Hills for its own use without more established a

taking.

As noted in the text, the rationale of the “good faith” prin-

ciple is that there is no taking of Indian property if Congress

“has made a good faith effort to realize its full value for the

Indians, .. . [where] it has in effect performed the trustee’s

traditional function of transmuting property into money.”

Id. at 685, 436 F.2d at 1015. Thus, “Congress makes a good

faith effort to obtain full value for Indian land, to be sold to

others, when it establishes and uses an adequate, competent

and impartial appraisal system to value the property.” Id.

at 687, 486 F.2d at 1016. Conversely, there is no occasion to

el tr Se SNE statist

13a

The defendant asserts that in this case a good faith

effort is shown (1) in the government’s undertaking

to provide rations for the Sioux “until the Indians

are able to support themselves” and (2) in its subse-

quent expenditure of at least $43 million on such

food. According to the government, the assumption

of this substantial financial obligation and its dis-

charge at great expense gave the Sioux the full value

of the land the government took from them, so that

the appropriation did not constitute a fifth amend-

ment taking.’

The answer to the question requires a more detailed

examination of the circumstances surrounding the

consider “good faith” where the United States appropriates

Indian lands for itself without attempting to give the Indians

the fair equivalent of what it acquires. Where, however, the

government contends that it has not taken Indian land in

the eminent-domain sense because, although it acquired the

land for itself, it nevertheless gave the Indians the fair value

of the property, the taking vel yon depends upon whether the

government meets the “good faith” standard of Three Affili-

ated Tribes of Fort Berthold Reservation v. United States,

182 Ct. Cl. 548, 390 F.2d 686 (1968). Moreover, in this case

the lands were taken for ultimate disposition to settlers

rather than, as in Klamath and Modoc, for the government’s

own continued use.

’The 1877 Act effected the appropriation of the Black

Hills by redefining the boundaries of the Sioux Reservation.

That redefinition gave the Indians approximately 900,000

acres of land they had not theretofore had. The defendant

does not contend, however, that the transfer of this additional

land was a significant element of the consideration the

United States gave for the Black Hilis.

14a

action of Congress in appropriating the Sioux land

in 1877.*

4In 1974 Congress amended section 2 of the Indian Claims

Commission Act, 25 U.S.C. § 70a, to provide that “expendi-

tures for food, rations, or provisions sha}! not be deemed pay-

ments on the claim.” Pub.L.No. 93-494, 88 Stat. 1499, 1500

(1974). The plaintiff argues that the 1974 amendment "i

quires this court to decide the taking claim without regar

to either the provision for food rations in the 1877 treaty or

the value of the rations actually provided. According to the

plaintiff, the 1974 amendment established the general its

that provisions for Indian subsistence cannot be consider

on. ora

ae. Gane history of the 1974 amendment indicates

that the amendment was intended to apply to the calculation

of offsets following an award, and not to the initial determi-

nation whether the plaintiff is entitled to recover an award in

a fifth amendment taking claim. The Senate Report on the

1974 amendment states that the amendment was | designed

to correct an inequity in connection with the claim of the

Sioux tribes of North and South Dakot ”” §. Rep. No. 93-

868, 93d Cong., 2d Sess. 2, reprinted in [1974] U.S. CODE

Conc. & Ap. News, 6111, 6112. The report quoted —,

ingly a statement provided by the Sioux Tribes that a

though couched in general terms, this amendment is age

to... expediting . . . disposition of the famous Black Hills

siete

par ee the House Subcommittee on Indian Affairs’ hearing

on the amendment, Representative Meeds, chairman of the

subcommittee, stated:

In February of this year, the Indians Claims Commis-

sion determined that the United States had, in violation

of the fifth amendment to the Constitution, unilaterally

taken over 7 million acres of Sioux land which they de-

termined had an 1877 value of $17,100,000. In addition

to the value of certain gold taken from the hills area

between 1868 and 1877, the total value was set at

$17,550,000 upon which the United States was required

to pay 5 percent simple interest from the time of taking.

l5a

B. In June 1875, more than 9 months after the

Custer expedition had discovered gold in paying

quantities in the Black Hills, a delegation of Sioux

Indians met with the President in Washington for a

preliminary discussion of the cession by the Indians

* [Continued]

Under the provisions of the Claims Commission Act,

the Commission determined that the United States could

offset food, rations, and other provisions supplied to the

Sioux under the 1877 agreement. If so applied, they

would almost totally, or totally wipe out any award the

Sioux would try to recover.

It is from this result that the Sioux appeal, and the

subject, this bill would remedy.

Amending the Indian Claims Commission Act: Hearing on

H.R. 16170 Before the Subcommittee on Indian Affairs of

the House Committee on Interior and Insular Affairs, 93d

Cong., 2d Sess. 4 (1974) (remarks of Representative Meeds).

Underlying the House Subcommittee hearing was a deep

concern for the fate of the Commission’s $17 million award

to the Sioux Indians. The subcommittee focused upon the

question whether the value of the rations provided to the

Sioux should be offset against the Commission’s award with

the resulting substantial diminution or possible elimination

of the award. There is no indication that, in providing that

expenditures for rations were not to be deemed “payments

on the claim,” Congress intended to bar consideration of a

government commitment to provide subsistence in determin-

ing whether the government’s application of the Sioux’s

Black Hills lands in 1877 constituted a fifth amendment

taking.

The location of the amendment in the paragraph of sec-

tion 70a dealing with “determining the quantum of relief”

(emphasis supplied) further supports our conclusion. The

determination whether there has been a taking normally in-

volves the question of liability rather than the quantum of

damages.

16a

of the Black Hills and their off-reservation hunting

rights. The President pointed out to the Sioux that

“there will be trouble in keeping white people from

going there for gold, if it should be discovered . . .

it is possible that strong efforts might not be made

to keep them out.” The President also told the Sioux

that if the United States should purchase the Black

Hills, “I would try to see you get a full equivalent

in value” and that he was “very anxious that the

Government of the United States should pay them in

a way that will be of most benefit to them, a full

equivalent for all that they have given up... Mog

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

at 630-32.

In September 1875, the Allison Commission, which

the Secretary of the Interior had appointed upon in-

structions from President Grant to negotiate with

the Sioux for the cession of the Black Hills and the

surrender of hunting rights, met with the Indians on

the reservation in a Grand Council. The commission

urged the Indians to sell the Black Hills

because 1—they were unable to support them-

selves and ought to bow to the wishes of the

Government which fed them, 2—the Army was

unable to keep settlers out of the hills and armed

conflict between whites and Indians was inevita-

ble, and 3—gold was useless to the Sioux.

Sioux Nation v. United States, 33 Ind. Cl. Comm. at

252, finding 5. The Sioux offered to sell the Black

Hills for $70 million. The commission offered $6

million, or alternatively, $400,000 a year for the right

17a

to mine, grow livestock, and cultivate the soil in the

Black Hills, and $500,000 (paid over 10 years) for

the surrender of the Sioux’s off-reservation hunting

rights. No agreement was reached.

In its report on the unratified 1876 agreement that

Congress adopted in the 1877 statute, the 1876 Com-

mission stated that the Allison Commission had failed

to obtain an agreement “because they had no auth-

ority to offer them [the Indians] any sum which

would be a just equivalent for their right in the

Black Hills, or which gave to the Indians hopes for

the future.” S. Exec. Doc. No. 9, 44th Cong., 2d

Sess. 12 (1876).

Following the failure of the 1875 negotiations, the

government changed its prior policy of using the

Army to exclude miners and settlers from the Black

Hills (see p. 5 supra). In November 1875 the Army

began to withdraw from the area.

In his annual report to Congress for.1875, the

Secretary of the Interior, after noting the failure of

the Allison Commission to negotiate an agreement,

pointed out that for 2 years the United States had

appropriated more than a million dollars annually

for the subsistence of the Sioux. He stated that this

was “a gratuity that the Government is under no

obligations to give them, and for which it receives

no compensating advantage.” Sioux Tribe Indians v.

United States, 97 Ct. Cl. at 647. He suggested that

Congress consider “whether it would not be justifiable

and proper to make future appropriations for sup-

plies to this people, contingent on the relinquishment

18a

of t 2 gold fields in the Black Hills and the right-of-

way thereto.” Id.

As noted, the acquisition of the Black Hills was

made by the Act of 1877. In that Act Congress

adopted the unratified agreement which the 1976

Commission had negotiated with the Sioux chiefs and

head men. Since it was the rider to the Appropria-

tions Act of 1876 that provided for the appointment

of the 1876 Commission and defined its authority in

negotiating with the Sioux, the legislative history of

that Act is highly significant in ascertaining the

intention and theory of Congress in acquiring that

land.

The antecedent of the 1876 Appropriations Act was

S. 590, 44th Cong., 1st Sess., which was a bill “pro-*

viding for an agreement with the Sioux Nation in

regard to a portion of their reservation and for other

purposes.” 4 CoNnG. REC. 1662 (1876). As reported

by the Committee on Indian Affairs on March 15,

1876, the bill provided for a commission to negotiate

with the Sioux for cession of the Black Hills, in re-

turn for which the United States would provide the

Indians with subsistence for not more than 10 years.

The bill further provided that subsistence would be

terminated on July 1, 1877 (more than a year later)

unless by then the Sioux had agreed to cede the Black

Hills. After extensive debate (7d. at 1796-1801, 1829-

30, 2177, 3530-39), the bill was amended to eliminate

the provision for termination of subsistence; it pro-

vided for a commission to negotiate with the Sioux

“for the cession to the United States” of parts of the

19a

reservation and adjacent territory “or otherwise for

the preservation of peace.” Jd. at 3539. The Senate

passed it in that form.

In the House, S. 590 was reported with an amend-

ment which permitted the proposed commission to

negotiate for the acquisition of the Black Hills (id.

at 3817), but the bill was recommitted and died in

committee (id. at 4470, 4520). The House then

passed H.R. 3478, the Appropriations Bill for the

Indian Department, which stated that no portion of

the appropriation of $1 million for feeding the Sioux

would be available unless the Indians first agreed to

abandon all claims to lands -outside the reservation.

Id. at 3498, 3503-08, 3639.

Senate modified H.R. 3478 to provide that one-

half of the appropriation for Sioux subsistence would

be suspended until the Indians agreed to cede the

Black Hills and to relinquish their off-reservation

hunting rights. Jd. at 3902. The House refused to

accede to this change (id. at 4043), and successive

conference committees were appointed. Id. at 4043,

4057, 4824, 4568, 5463, 5539.

On June 25, 1876, General Custer was defeated at

Little Big Horn. Less than 2 months later, on August

15, 1876, Congress enacted the 1876 Appropriations

Act, with its rider (1) cutting off rations for the

Sioux unless they terminated hostilities and ceded the

Black Hills, and (2) providing for a commission to

carry those provisions into effect.

Pursuant to this provision, the President appointed

the 1876 Commission that negotiated with the Sioux

20a

the unratified agreement ceding the Black Hills. In

transmitting the report of the commission to the

Secretary of the Interior, the Commissioner of Indian

Affairs described the commission as one “to obtain

certain concessions from the Sioux, in accordance with

provision contained in the Indian appropriation act

for the current fiscal year.” S. Exec. Doc. No. 9 at

2. In transmitting that report to the Congress, Presi-

dent Grant used almost identical language in de-

scribing the commission. Jd. at 1.

The instructions to the commission, referring to

the rider to the Appropriations Act, stated that “the

Indians should be made to understand distinctly that

they can hope for continued appropriations only by

full submission to the authority and wishes of the

Government and upon full evidence of their disposi-

tion to undertake in earnest measures for their own

advancement and support.” Id. at 4. In its meeting

with the Sioux the 1876 Commission “submitted to

the Indians the conditions required by Congress, and

stated that we had no authority to change them in

any particular.” S. Exec. Doc. No. 9 at 6. The

Indians were left with no doubt that if they refused

to cede the Black Hills they would receive no fur-

ther rations from the government. Since the Army

had taken from the Sioux their weapons and horses,

the alternative to capitulation to the government’s

demands was starvation, because the Indians no

longer had the weapons for hunting, and as hunters

_ they did not know how to farm and raise their own

food.

En 20-

21a

The “consideration” stated in the 1876 agreement

for the Sioux’s “cession of territory and rights” and

“compliance with each and every obligation assumed

by the said Indians” was that the United States

agreed: (1) to provide the Sioux with “all neces-

Sary aid to assist the said Indians in the work of

civilization,” (2) to furnish to them “schools and

instructions in mechanical and agricultural arts, as

provided for by the treaty of 1868,” and (3) to

supply them with specified rations “until the Indians

are able to support themselves.” See 19 Stat. 254,

256. The first item of consideration—the provision

of “all necessary aid” to assist the Sioux in becom-

ing civilized—entailed no specific benefits or obliga-

tions and was so vague that it cannot be considered

as constituting a meaningful or significant element

of payment by the United States. In the second item

the government merely undertook to perform its obli-

gations under the 1868 treaty; this provision gave

the Sioux nothing to which they were not already

entitled.

The only item of “consideration” that possibly

could be viewed as showing an attempt by Congress

to give the Sioux the “full value” of the land the

government took from them was the requirement to

furnish them with rations until they became self-

sufficient. Indeed, this is the only “payment” upon

which the defendant significantly relies to show that

there was no fifth amendment taking.

After the commission returned to Washington with

the executed but unapproved agreement, it submitted

22a

in December 1876 a lengthy report describing its

negotiations with the Sioux. SEN. Exec. Doc. No.

9 at 5-90. President Grant transmitted the report to

Congress. Jd. at 1. The report stated that the com-

mission had “accepted the trust confided to them un-

der the grave responsibility that if they failed in their

mission the twenty thousand friendly Indians at the

_ agencies must either starve or join the hostile In-

dians.” Id. at 6. The report described at length

the many separate discussions the commission held

with the various Indian groups (id. at 29-86) and

sharply criticized the government’s policy toward, and

treatment of, the Sioux. Jd. at 9-18. The report

stated that “The least we can do is to repay these

friendly Indians honestly for the full value of the

property which was taken” (id. at 16) and that the

commission was “confident that this agreement con-

tains provisions which, if faithfully carried out, will

save these Indians and redress some of the wrongs

which furnish the darkest page of our history.” Id.

at 17-18. The report also noted that, at the first

meeting with the Indians, the commission told them

that it had full authority from Congress and the

President “to devise a plan to save their people from

death and lead them to civilization,” and it described

the first element of the plan as “to provide ample

rations for their subsistence until able to support

themselves... .” Jd. at 6.

Nowhere in the report, however, does the commis-

sion indicate that it believed the provisions for ra-

tions constituted a fair equivalent for the value of

23a

the Black Hills lands the Indians were surrendering.

On June 26, 1877, the Senate Committee on In-

dian Affairs reported a bill to “ratify and confirm”

the agreement. 5 CoNnG. REC. 983 (1877). The Sen-

ate passed the bill the next day. The debate in that

chamber dealt almost entirely with the possible move-

ment of the Sioux from their reservation to Indian

territory (id. at 1055-58)—a provision which was

included in the agreement although agreed to by

only two of the bands and which the Senate com-

mittee deleted. Jd. at 1055. The sole reference to

the Black Hills was Senator Allison’s statement that

[i]t is an imperative necessity that so much of

this agreement as provides for the relinquish-

ment of that vast area of territory which lies

west of this boundary should be at once placed

in the possession and under the control of the

Government of the United States, and that can

only be done by giving the force and effect of our

sanction to this bill.

Id. at 1057.

The House passed the bill almost 3 weeks later on

February 15, 1877. Jd. at 1617. There, as in the

Senate, the debate dealt almost entirely with the

possible removal of the Sioux to Indian territory.

Id. at 1615-17. Representative Boone described the

bill as one of “great importance” that should be

passed. He explained:

The Black Hills country is to the people of the

United States a valuable country. This agree-

ment concedes the Black Hills territory to the

24a

Government of the United States, in considera-

tion of which we make provision for feeding

these Indians upon the Missouri River at points

contiguous to the means of transportation, so

that there will be a saving to the Government

in feeding the Indians, in addition to the trans-

fer of this valuable country to the United

States.

Besides this, the Indians by this bill are to be

placed on a part of the reservation which they

now hold which js Susceptible of cultivation :

and if we are ever to Succeed in teaching them

the arts of agriculture and civilization they will

be in a position where we can carry forward

those great enterprises which have succeeded so

well in the Indian Territory with much greater

facility than can possibly be done in the present

Scattered and inaccessible condition of these

Indians.

Id. at 1615.

Similarly, Representative Crounse stated: “It is

of the greatest importance that this bil] pass and

that the Black Hills country be opened up at once.”

Id. at 1616.

The lack of any discussion of whether the “con-

Sideration” provided by the United States was ade-

quate consideration for the lands surrendered may

have reflected the belief which Senator Allison stated,

that the agreement “has already been agreed to by

all these bands.” Jd. at 1056.. Senator Allison did

not note that the cession of the Black Hills was not

approved by three-quarters of the adult male In-

dians, as the 1868 treaty required.

25a

C. The foregoing history of congressional con-

sideration of obtaining the Black Hills and of the

negotiations with the Sioux about the cession of those

lands demonstrates that in the Act of 187 7 Congress

did not make “a good faith effort to give the Indians

the full value of the land.” Fort Berthold Reserva-

tion v. United States, 182 Ct. Cl. at 558, 390 F.2d

at 691. The terms upon which Congress acquired =

Black Hills were not the product of any esha ye

negotiation or arm’s-length bargaining, and did no

reflect or show any considered judgment by aeintill

that it was paying a fair price. In the a

tions” the United States gave the Indians the Ho

son’s choice of ceding the Black Hills or starving.

Not surprisingly, the nap ai and head men

he former rather than the latter. oe

sa earlier attempt by the Allison ine aie

negotiate an agreement for the sale of Black a

foundered because of the gross disparity between ma

$70 million the Indians asked and the $6 aig :

government offered. Since the treaty of —_ a

given the Sioux “the absolute and undisturbe -~

and occupancy” of the Black Hills, the oo

under no legal compulsion to sell. They were in on

to yield these valuable lands to the governmen oe

cause of the threatened cutoff of their rations, w

i their existence.

ete reget for cession of the Black ae

failed to gain the written approval of three-qua sale

of the adult male Sioux as the 1868 treaty ges =

for a cession to have “any validity or force,” Co

26a

gress merely “ratified and confirmed” the unapproved

agreement and thereby acquired the Black Hills.’

There is no indication that Congress believed that,

or even considered whether, the obligation it as-

sumed to furnish the Sioux with rations until they

could support themselves, constituted the fair equiva-

lent of the value of the lands the United States was

acquiring from them.

In return for obtaining the Black Hills, the gov-

ernment did not even unqualifiedly undertake to pro-

vide all the Sioux with food. The right of the In-

dians to receive rations was qualified by the provi-

sions that rations would be furnished for children

between the ages of 6 and 14 only if they attended

government schools, and for non-infirm Indians _lo-

cated upon land suitable for cultivation only if they

performed “labor.” Indians who did not meet these

conditions would receive no food, irrespective of any

rights they may have had with respect to the prop-

erty the United States acquired. These conditions

further show that the government’s undertaking to

furnish rations to the Indians until they could sup-

port themselves did not reflect a congressional deci-

sion that the value of the rations was the equivalent

of the land the Indians were giving up, but instead

5 The only significant change the 1877 Act made in the

agreement was the elimination of the provision, which the

Indians considered particularly objectionable, that the Sioux

would move from their reservation to other lands the United

States would provide in Indian territory. That change did

not alter or affect the consideration the United States gave

for the Black Hills.

27a

was an attempt to coerce the Sioux into capitulating

ressional demands.

“a 2 years following termination of its obliga-

tion under the treaty of 1868 to furnish rations for

4 years, the government gratitously had appropri-

ated $2,350,000 to feed the Sioux. In the 1876 Ap-

propriations Act Congress appropriated $1 pe

for “subsistence” for the Sioux and “for purpose 0

their civilization.” The bill (S. 590 supra, p. 12)

from which the cutoff rider of the 1876 Appropria-

tions Act was derived, provided that if the Sioux

ceded the Black Hills, the United States would fur-

nish subsistence to the tribe ‘from year to year for

a period not exceeding ten years... in such man-

ner as Congress may by law provide” (emphasis pro-

pros hoped and anticipated that in a spice

short time the Sioux would learn the ways of ange

society and become self-sufficient. In the treaty 0

1868 the United States had undertaken to do yl

ous things which it hoped would accomplish those 0

jectives, such as building schools, giving oe

in farming, providing blacksmiths, ete. 15 Stat. 635,

637-38. There is no reason to believe that Congress

anticipated (1) that it would be required to con-

tinue to supply rations for more than a apart

or (2) that its fulfillment of the obligation to a

the Sioux would entail the large expenditures it ulti-

de.

we i that over the years Congress may have

spent substantially more in furnishing rations than

28a

the fair market value of the Black Hills in 1877

does not establish that when Congress undertook to

supply the rations it “was attempting to give the In-

dians the full value of the land.” Fort Berthold Res-

ervation v. United States, 182 Ct. Cl. at 555, 390

F.2d at 692. The critical inquiry is what Congress

did—and how it viewed the obligation it was assum-

ing—at the time it acquired the land, and not how

much it ultimately cost the United States to fulfill

the obligation. If the legislative action when taken

did not reflect “the exercise by Congress of its plen-

ary authority to manage the property of its Indian

wards for their benefit’ (td. at 557, 390 F.2d at

693), the subsequent payment to those wards of

amounts that in hindsight appear to equal or even

exceed the fair value of the property does not make

the initial acquisition any the less a fifth amend-

ment taking. As this court stated in the Fort Berth-

old opinion, where the government argued that its

acquisition of certain Indian lands in 1917 by Presi-

dential proclamation was not a taking because the

government paid an adequate amount for the lands in

1920, “[a] unilateral] appropriation of money sev-

eral years later does not affect the character of the

original taking.” Jd. at 564, 390 F.2d at 698.

D. The defendant argues, however, that Lone

Wolf v. Hitchcock, 197 U.S. 553 (1903), controls

this case and establishes that the acquisition of the

Black Hills by the 1877 Act did not constitute a

taking.

29a

The underlying facts in that case were somewhat

similar to those here, but the legal issue was quite

different. An 1867 treaty with certain Indian tribes

established a reservation for them and provided that

no treaty for the cession of reservation lands would

be “of any validity or force” unless executed and -

signed by three-quarters of the adult males. In 1892

the Indians agreed to cede the reservation to the

United States, in return for allotments out of those

lands and the payment to and setting aside for the

Indians of $2 million. Although it appeared that the

requisite three-quarters of the Indians had signed the

agreement, it subsequently developed that the requi-

site number had not signed. In 1900 Congress en-

acted a statute which in effect adopted the 1891

agreement. The Indians then filed a bill in equity to

enjoin the government from carrying out the stat-

ute which, they asserted, violated the 1892 treaty

requirement of consent by three-quarters of the adult

male Indians.

The Supreme Court upheld the lower courts’ dis-

missal of the suit. It ruled that the plenary power

of Congress “to administer the property of the In-

dians” authorized it “to abrogate the provisions of

an Indian treaty” (id. at 565-66); that the power

“has always been deemed a. political one, not sub-

ject to be controlled by the judicial department of

the government” (id. at 565); that the 1900 statute

“purported to give an adequate consideration for the

surplus lands not allotted among the Indians or re-

30a

served for their benefit” (id. at 568); that the Court

“must presume that Congress acted in perfect good

faith in the dealings with the Indians of which com-

plaint is made, and that the legislative branch of the

government exercised its best judgment in the pre-

mises” (id.); and that “[i]n any event, as Congress

possessed full power in the matter, the judiciary can-

not question or inquire into the motives which

prompted the enactment of this legislation. If injury

was occasioned, which we do not wish to be under-

stood 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. The legisla-

tion in question was constitutional, and the demurrer

to the bill was therefore rightly sustained” (id.).

In the Lone Wolf case, the Supreme Court was not

required to, and did not, decide the legal issue wheth-

er, as a result of the 1900 statute, the Indians were

entitled to recover just compensation for a fifth

amendment taking. The claim made by the Indians

was that, if the statute were enforced, their rights

under the Treaty would be violated and Congress

“would deprive said Indians of their lands without

due process of law.” 187 U.S. at 561. By proceed-

ing in equity, the Indians necessarily raised the

threshold issue whether the governmental action in

question could or should be enjoined. The Court con-

cluded that Congress had the power to proceed with

its plan for appropriation of Indian lands, and that

it was not within the province of the judiciary to stay

8la

the hand of Congress. The Indians recognized that

they had no remedy at law, and the Court ruled that

they were not entitled to equitable relief. Under the

circumstances, the Court inescapably concluded that,

if Congress caused some injury by the exercise of its

power, “relief must be sought by an appeal to that

body” and not through the judicial process. 187 U.S.

at 568.°

There is broad language in the Lone Wolf opinion

that could be read as suggesting that the couris will

not inquire into the propriety of congressional action

concerning Indian property or consider the adequacy

of the consideration Congress gave for the lands it

appropriated from the Indians. The Supreme Court,

however, frequently has cautioned against uncritically

applying language used in a particular context in

®In the Lone Wolf case, the bill of complaint before the

lower court recited that the plaintiff and other tribal mem-

bers were “wholly without remedy at law,” and stated that

they would suffer great property loss if the court were to

deny injunctive relief. Supreme Court Record on Appeal

No. 275 (October Term, 1902) at 15. In their appeal of the

lower court’s denial of equitable relief, the appellants argued

before the Court that several acts remained to be done before

the challenged statute would be fully implemented. Reply

Brief of Appellants at 2. Thus, in asserting that “[t]he

property of Appellants cannot be taken from them for public

use without just compensation,” the appellants were arguing

that the Court should prevent actions which, appellants be-

lieved, would result in an unconstitutional taking if not

promptly enjoined. Brief and Argument of Appellants at 37.

As a result of its determination that equitable relief was not

available, the Court did not have to reach the ultimate, legal

question of entitlement to just compensation.

82a

dealing with different situations. Armour & Co. v.

Wantock, 323 U.S. 126, 182-88 (1944) (“[w]ords of

our opinions are to be read in the light of the facts

of the case under discussion. . . . General expressions

transposed to other facts are often misleading.’’) ;

White v. Aronson, 302 U.S. 16, 21 (1937); Puerto

Rico v. Shell Co., 302 U.S. 258, 269 (1987); Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

The statements in Lone Wolf upon which the de-

fendant relies were all made in determining whether

courts should enjoin the enforcement of a statute

which, by appropriating Indian property, was incon-

sistent with an Indian treaty. The question in this

case, however, is a quite different one: whether a

statute by which Congress appropriated Indian lands

constituted a fifth amendment taking for which the

United States is required to pay just compensation.

Since Lone Wolf, in which no consent had been

given to sue the United States for just compensation,

the Supreme Court has recognized that if the United

States takes Indian property for its own use or to

give to others, it must pay just compensation. This

has been done where no compensation was originally

paid and where the initial compensation was grossly

inadequate.” These are cases in which consent to sue

7™In United States v. Klamath and Moadoe Tribes of In-

dians, 304 U.S. 119 (1938), the United States paid $108,750

in related parts of a single transaction (see Klamath and

Moadoc Tribes v. United States, 85 Ct. Cl. 451, 457-58

(1937) ) for Indian land which this court later found to have

been worth $2,980,000. The Supreme Court held that there

was a constitutional taking for which just compensation had

to be paid, including interest. 304 U.S. at 122, 123-25.

83a

for such compensation was authorized by special ju-

risdictional acts and include United States v. Creek

Nation, 295 U.S. 108 (1985), and United States v.

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

A significant element of the Lone Wolf decision ap-

parently was the principle that the courts would not

examine the consideration that Congress had given

for Indian lands it had taken. However, we think

the entitlement of plaintiffs to recover in this case

should be determined in accordance with the princi-

ples laid down in post-Lone Wolf decisions, in which

the consideration paid the Indians is taken into ac-

count in determining whether just compensation has

been given. 304 U.S. at 125. See also, United States

v. Sioux Nation, 207 Ct. Cl. at 250, 518 F.2d at 1307

(dissenting opinion of Davis, J.).

IV.

The Indian Claims Commission also held that the

acquisition by the United States in the 1877 Act of

rights-of-way across other Sioux lands constituted a

taking for which the Indians are entitled to just com-

pensation. It valued those rights-of-way at $3,484.

The defendant concedes that the rights-of-way claims

“Fall Into The Same Category As The Black Hills

Transfer.” Defendant’s Answering Brief at 118. In

view of our ruling that the government’s acquisition

of the Black Hills constituted a taking, we also affirm

the Commission’s ruling that the government’s acqui-

34a

sition of the rights-of-way was a taking for which

just compensation must be paid.

¥,

Prior to the 1877 Act, miners had entered the

Black Hills area and removed from it gold which the

Commission valued at $450,000. The Commission

held that this removal of gold was a taking by the

United States. It noted the provision in the 1868

treaty by which the United States agreed that un-

authorized persons would not be permitted to enter

the reservation. The Commission held that the act

of taking was the order of President Grant that “the

Army withdraw from the Black Hills and stop inter-

fering with miners attempting to enter therein” (33

Ind. Cl. Comm. at 224), and that the date of taking

was November 17, 1875, when the Army began to

withdraw from the Black Hills. Jd. at 227. The Com-

mission’s rationale was that the removal of the gold

from the Sioux reservation was the “direct and natu-

ral consequence of President Grant’s order” (id. at

227) and that “[t]o constitute a taking, it is only

necessary that the claimant’s loss of its property be

the natural and probable consequence of an inten-

tional governmental act” (id. at 225).

In its previous decision in this case, the court rec-

ognized that the Commission’s award of $450,000 for

the gold was sustainable under the “fair and honor-

able dealings” section of the Indian Claims Commis-

sion Act, 25 U.S.C. § 70a(5) (United States v. Sioux

35a

Nation, 207 Ct. Cl. at 240-41, 518 F.2d at 1301),

and the government has not challenged that award.

Cf. Temoak Band of Western Shoshone Indians v.

United States, slip op. Appeal No. 1-78, decided Feb-

ruary 21, 1979; United States v. Goshute Tribe, 206

Ct. Cl. 401, 512 F.2d 1398 (1975). It is quite an-

other matter, however, to conclude that the action of

the miners in illegally removing gold from the In-

dians’ land constituted a taking of that gold by the

United States for which just compensation must be

paid. We reverse the Commission’s ruling on this

issue.

The plaintiff contends that the Act of 1877 consti-

tuted congressional ratification of President Grant’s

order terminating the Army’s efforts to keep the

miners out—an order the effect of which was to

permit the miners to remove gold from the Black

Hills. Although the statute ratified the agreement

the commission had entered into with the chiefs and

head men of the Sioux for the cession of the Black

Hills, Congress neither ratified nor approved the re-

moval of the gold by the trespassing miners. To the

contrary, during congressional consideration of the

1876 Appropriations Act ration cutoff rider, Sena-

tors repeatedly condemned the illegal acts of the

miners and criticized the government for not having

prevented them. 4 ConG. REc. 1796 (Senator Bogy),

1797 (Senator Hamilton), 1798 (Senator Allison,

Senator Edmunds), 1799 (Senator Edmunds), 3531

(Senator Edmunds), 3534 (Senator Bogy), 3949

36a

(Senator Morton). Nothing in either that legislation

or the 1877 Act indicates or even suggests that Con-

gress was approving the removal of the gold or the

actions of the executive branch that facilitated the

removal, or itself was attempting to gain the benefits

thereof. Indeed, there is no indication that in 1876

or 1877 Congress was even aware either of President

Grant’s order or of the commencement of the with-

drawal of the Army from the Black Hills in Novem-

ber 1875.

This case is unlike Shoshone Tribe v. United States,

supra, upon which the plaintiff heavily relies. There

the government in 1868 had established a reservation

for the “absolute and undisturbed use and occupation

of the Shoshone Indians” and provided that no person

should ever be permitted to settle or reside in that

territory. 299 U.S. at 485-86. Ten years later a

band of Northern Arapahoes was brought to the

reservation under military escort and settled there.

Although the Shoshones were informed that the

Arapahoes were there only temporarily, the Indian

Commissioner responsible for the arrival had other

views. The Arapahoes gradually took over an ever-

increasing portion of the reservation so that ulti-

mately they had the entire eastern section. In subse-

quent legislation Congress treated “the two tribes as

lawful occupants and equals.” Jd. at 490.

The Supreme Court held that the United States

had taken the Shoshone land in 1878. It stated

—— —_—_________-

87a

that from the outset the occupancy of the Reser-

vation was intended to be permanent; that, how-

ever tor/ious in its origin, it has been permanent

in fact; and that the Government of the United

States through the action and inaction of its

executive and legislative departments for half a

century of time, has ratified the wrong, adopting

the de facto appropriation by relation as of the

date of its beginning.

Id. at 495.

In the Shoshone case the government itself placed

the Arapahoes on the Shoshones’ land, encouraged

and aided them to remain there and then recognized

and treated them as the owners. The government

thus gave the Shoshones’ tribal lands to others, and

that constituted a taking for which just compensa-

tion was required. Id. at 497-98; United States v.

Creek Nation, 295 U.S. at 110. In the present case,

by contrast, the government neither brought the

miners onto the Black Hills land nor encouraged

them to settle there. On the contrary, the govern-

ment originally attempted to exclude them, and Con-

gress repeatedly criticized the miners’ trespassing

onto the land.

The plaintiff’s claim that the removal of the gold

was a taking rests upon the government’s failure to

keep the miners out and the alleged congressional

ratification of that action. As we have already noted,

there is no showing of congressional ratification or

approval. The extent and significance of the govern-

ment’s involvement in the miners’ removal of the

38a

gold is a matter of degree, and its involvement here

was significantly less than in the Shoshone case. We

cannot say that what the government did or failed to

do with respect to the removal of gold constituted a

taking for which the government was required to

pay just compensation.

VI.

We understand that the award in this case is the

largest the Indian Claims Commission ever made.

Congress, however, was aware of the the size of

the recovery that would result if the court held

that the appropriation of the Black Hills by the 1877

Act constituted a taking. In the section of the

House Report on the special jurisdictional statute

under which we have heard this case dealing with

the potential cost of the legislation, the committee

stated that if “the court determines in favor of the

claimants,” the United States would be liable for in-

terest totalling approximately $85 million. H.R. REp.

No. 95-529, 95th Cong., 2d Sess. 6, reprinted in U.S.

CoDE ConG & AD. NEws 767, 772 (Apr. 1978). Simi-

larly, during debate on the legislation, Representative

Udall referred to the estimated cost of $85 million

if the Sioux were to prevail. 124 Conc. Rec. H900

(daily ed. Feb. 9, 1978) (remarks of Representative

Udall).

Congress concluded that, despite the substantial

amount the government would be required to pay if

the Indians should prevail on the merits of their tak-

ing claim, the Indians should receive from this court

39a

a de novo determination of the merits of that ques-

tion. Pursuant to that direction we have decided the

case. In so doing, we have carried out the obligation

Congress imposed upon us in the 1978 jurisdictional

statute.

CONCLUSION

The order of the Indian Claims Commission of Feb-

ruary 15, 1974 (1) is affirmed insofar as it held that

the Act of February 28, 1877 constituted a taking

of (a) the Sioux land in the Black Hills and (b) the

rights-of-way acquired thereunder, but (2) is re-

versed insofar as it held that the removal of gold

from the Great Sioux Reservation prior to February

28, 1877 constituted a taking.

NICHOLS, Judge, concurring:

I concur in the result and in all of the court’s

opinion except part III D, which discusses Lone Wolf

v. Hitchcock, 187 U.S. 553 (1908). With all respect,

that part mistakes the holding in Lone Wolf and

ignores a fundamental proposition in the law of em-

inent domain. I agree that defendant’s reliance on

Lone Wolf is also mistaken and that it does not es-

tablish that the acquisition of the Black Hills by the

1877 Act did not constitute a taking, But the reasons

why this is so are quite other than those the court

states.

40a

Lone Wolf is of vital importance in respect to the

claim before us. It was cited, and, as this court then

thought, faithfully followed in Sioux Tribe of In-

dians v. United States, 97 Ct. Cl. 618, 670 (1942),

cert. denied, 318 U.S. 789 (1948), where the discus-

sion of it covers most of four pages. In United States

v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d 1298, cert.

denied, 423 U.S. 1016 (1975), defendant relied on

the earlier decision as res judicata. We concluded

that the interpretation of Lone Wolf there involved

was fundamental to the decision and under the doc-

trine of res judicata, could not be challenged by

us. We carefully left open the question whether, if

untrammelled by res judicata, we would have con-

strued Lone Wolf the same way. I myself, would

not have, and would be happy, now, to join in

giving it a different and more sustainable construc-

tion, as the Congress now leaves us free to do. If,

however, Lone Wolf holds what the 1942 Court of

Claims thought it held, it still stands as an insuper-

able bar to the claim. To dispose of it, the Congress

would have to excuse us from the duty of following

Supreme Court decisions, which it has not yet done.

The day Lone Wolf was handed down, January 5,

1903, might be called one of the blackest days in the

history of the American Indian, the Indians’ Dred

Seott decision. To the practical statesman, it ap-

peared to say the Indian tribes had acquired no rights

by treaty which the Congress was bound to respect.

Certainly no U.S. Supreme Court post 1938 would

make such a decision, and many decisions, both earlier

ee

4la

and later, give Indian treaties an entirely different

degree of respect. But the case must be carefully

read to avoid making it worse than it is. It has never

been expressly overruled. We and other constitu-

tionally “inferior” courts are not allowed to overrule

Supreme Court decisions the Supreme Court has not

itself expressly overruled. United States v. Mason,

412 U.S. 391 (1973). We are not required to praise

them, nor to extend them beyond their precise

holdings.

We must turn to Lone Wolf, therefore, as the 1942

Court of Claims did and the present court purport-

edly does (though to opposite results) and see what

Lone Wolf really holds. Incidentally, since this court

is deciding that the 1942 court was in error in its

application of Lone Wolf, one might have expected

some discussion of the 1942 decision and how it fell

into the error it did. The 1942 decision clearly

treated Lone Wolf as fully applicable as a precedent

to a fifth amendment claim for just compensation,

and imputed to that case a holding that in managing

Indian property, Congress might exchange lands for

money at any rate it chose, without its being an in-

stance of uncompensated expropriation.

Many takers, including the United States, have

sovereign immunity to unconsented suits. Naganab

v. Hitchcock, 202 U.S. 473 (1906). Thus the owner

of property taken by the United States has no remedy

by suit at law for just compensation, except for the

consents it has given. These include the 40 U.S.C.

42a

§ 257 procedure for condemnation of land, and the

Tucker Act, now 28 U.S.C. § 1491. Where some such

consent is not applicable, the landowner has no rem-

edy except to resort to equity to enjoin the taking

until just compensation, or a means of adjudicating

just compensation, is provided. Such suits are not so

common now but in the days when consents by our

states and our nation were not so sweeping as they

now are, they were very common. Lane v. Pueblo of

Santa Rosa, 249 U.S. 110 (1919), is an example of

a successful injunction suit by Indians against un-

compensated expropriation of their lands. See II

NICHOLS, EMINENT DoMAIN (2d ed. 1921) § 472, In-

junction Against Unlawful Taking or Damage Under

Color of Eminent Domain. Furley v. Kinkaid, 285

U.S. 95 (1932) may be taken as an example of an

injunction suit where the government threatened to

take but failed to provide just compensation, and

that landowner lost in the Supreme Court because,

unlike the Indians, he had a remedy at law under

the Tucker Act.

When we realize that the Tucker Act as it then

was, 24 Stat. 505, did not consent to suits by Indian

tribes “founded on the Constitution” we will see that

plaintiff Lone Wolf and co-plaintiffs were in precisely -

the situation for which the injunctive remedy was

the only one available. They alleged that an Act of

Congress infringed their property interests, but made

no provision for just compensation, and general legis-

lation such as the Tucker Act at that time made none.

43a

Thus it was irrelevant whether plaintiffs would have

preferred the status quo, or just compensation for

the altering of it: in either case their sole remedy

was in equity. They clearly did invoke the fifth

amendment, and they clearly did assert the govern-

ment was taking, or threatened to take, their prop-

erty. They did not assert any other ground why

the challenged statute was unconstitutional. That

they said the statute would deprive them of their

lands “without due process of law” instead of “with-

out just compensation,” is a semantic variation that

will not suffice to alter the entire nature of the Lone

Wolf proceeding in the manner this court would like.

They were not asserting a procedural error; in those

days due process had substantive applications. Short-

ly before Lone Wolf, the Supreme Court held that the

due process clause of the fourteenth amendment im-

posed on the states an obligation to pay just com-

pensation in taking cases, despite its not including

any specific just compensation clause. Chicago, Bur-

lington and Quincy R.R. v. Chicago, 166 U.S. 226

(1897). This case overruled Davidson v. New Or-

leans, 96 U.S. 97, 105 (1877), which had limited the

application of the fourteenth amendment to pro-

cedural due process, so far as concerned state emi-

nent domain. We must understand these matters to

understand Lone Wolf.

Lone Wolf is purely and simply a holding that the

fifth amendment does not require just compensation

to the Indians in the situation then before the Court.

Thus our 1942 court was correct in viewing Lone

44a

Wolf as a precedent fully as applicable in a con-

sented suit for just compensation, such as they had

before them, as it would be in an injunction suit

in the absence of the necessary consent. Lone Wolf

was also viewed as an applicable precedent as to a

just compensation claim as late as Three Affiliated

Tribes of the Fort Berthold Reservation v. United

States, 182 Ct. Cl. 548, 390 F.2d 686 (1968), so far

as applied to instances where the government made

a “good faith effort” to give the Indians the full

value of their land, though it was not judicially ascer-

tained as the fifth amendment, if applicable, would

have required. In such a case there was no taking

even if the compensation was insufficient. In in-

stances where we could see no “good faith effort,”

Lone Wolf was not viewed as a governing precedent,

but no such reason for distinguishing it was sug-

gested, as is now asserted. We quoted Lone Wolf

to the effect that a mere change in the form of in-

vestment of Indian tribal property from land to

money was not a taking. If Lone Wolf was not ap-

plicable to just compensation claims at all, much

cerebral effort was wasted on it in the Fort Berth-

old case.

Lone Wolf did undoubtedly say that when Con-

gress “purported” (the Court’s word, at p. 568) to

give an adequate consideration in any such exchange,

it was not permissible to go behind its fact finding

to ask if the consideration really was adequate, nor

could the Court inquire into the evil motives that

might be secretly lurking in congressional breasts.

45a

The latter proposition has not changed in recent

times. Thus in United States v. O’Brien, 391 USS.

367 (1968), it was held that when it is necessary

for construction of legislation to determine its in-

tent and purpose, that is to be done by resort to

sources such as committee reports, where the Con-

gress makes its purpose manifest. It is not per-

missible to strike down legislation “on the basis of

an alleged illicit legislative motive.” Jd. at 383, cit-

ing cases. In that case the alleged illicit motive was

assertedly proved from member’s speeches on the

floor, which the Court held could not be imputed to

the whole body. Plaintiff O’Brien did not even as-

sert that it might be done by their off-the-record re-

marks.

The meaning both of Lone Wolf and of O’Brien is

that if the Congress spreads evidence on the public

record, i.e., “purports” to act in a fair and consti-

tutional manner, this may not be refuted by unsup-

ported inference, by gossip, or by hearsay.

As a matter of history, it may be noted that the

Indians in Fort Berthold, supra, took this court’s

“good faith effort” standard as an invitation to im-

pugn the good faith of Congress in further remanded

stages of the same case. The Indians Claims Com-

mission rejected such evidence, 28 Ind. Cl. Comm.

264 (1972), as did we on appeal. Three Affiliated

Tribes of the Fort Berthold Reservation v. United

States, 204 Ct. Cl. 831, cert. denied, 419 U.S. 901

(1974). So the “good faith effort” standard must

be applied with respect to the legislative record as

46a

publicly disclosed in the statutory language, com-

mittee reports, etc. The “good faith effort” standard

is met in Lone Wolf, where the record shows that

the Indians’ complaints were considered by Congress

and that an effort was made to meet them half way,

the deal originally proposed for the Indians being

materially improved in the final act. In long subse-

quent Indian Claims Commission proceedings it was

held that under the legislation the government ac-

quired at 93.3 cents an acre land worth $2 an acre.

Kiowa, Comanche and Apache Tribes v. United

States, 143 Ct. Cl. 534, 163 F.2d 603 (1958) cert.

denied, 359 U.S. 934 (1959). However, in Fort

Berthold, supra, there was likewise a gap between

what the United States paid and the Commission

determined; a greater one than in Lone Wolf. so

it is clear the occurrence of a “good faith effort” is

not to be tested by the congruence of the amount

paid with the amount subsequently found by hind-

sight as what should have been paid.

In Lane v. Pueblo of Santa Rosa, supra, at 113,

the Supreme Court said:

The defendants assert with much earnestness

that the Indians of this pueblo are wards of the

United States—recognized as such by the legis-

lative and executive departments—and that in

consequence the disposal of their lands is not

within their own control, but subject to such

regulations as Congress may prescribe for their

benefit and protection. Assuming, without so de-

ciding, that this is all true, we think it has no

real bearing on the point we are considering.

47a

Certainly it would not justify the defendants in

treating the lands of these Indians—to which,

according to the bill, they have a complete and

perfect titl——as public lands of the United

States and disposing of the same under the pub-

lic land laws. That would not be an exercise of

guardianship, but an act of confiscation. * * *

[Footnote omitted, cites Lone Wolf v. Hitchcock,

with other cases. ]

In a consented suit, before Lone Wolf, the Supreme

Court held the government accountable for selling

to homesteaders land granted by treaty to Indians.

New York Indians v. United States, 170 U.S. 1

(1898); 173 U.S. 464 (1899). Lone Wolf is not

and never was to be read as sanctioning any arbi-

trary move the Congress may choose to make with

respect to property rights of Indians created by an

Indian treaty. It sanctions, as not violative of the

fifth amendment, only such moves as are “purported”

(i.e., shown by the published record) to provide an

“adequate consideration” in any exchange of lands

for anything else. I think this court in 1942 failed

to note this limitation on the scope of the Lone Wolf

holding and thus it committed error. The error does

not bind us by res judicata, and I think the new

analysis we now make, in the parts of the opinion I

join, reveals a situation where Congress did not

“purport” to provide “adequate consideration,” nor

was there any meaningful negotiation or arm’s-length

bargaining, nor did Congress consider it was paying

a fair price. The case is not one we can say the

48a

Lone Wolf Court would deem no violation of the

fifth amendment. It was never before the Court and

we cannot tell how it would have viewed the case.

The congressional decision fails the “good faith ef-

fort” test that we enunciated as explanavory of Lone

Wolf.

BENNETT, Judge, with whom KUNZIG, Judge,

joins, dissenting:

This court today has adjudged that the acquisition

of the Black Hills from the Sioux Indians by the

United States, pursuant to the Act of February 28,

1877, 19 Stat. 254, was a taking under the fifth

amendment of the Constitution of the United States.

By doing so, the court has concluded that the unani-

mous decision of the entire court in Sioux Tribe of

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

denied, 318 U.S. 789 (1943), which held that the

acquisition in question did not constitute a fifth

amendment taking and that the Indians had already

been paid, was incorrectly decided, although this re-

sult was later twice affirmed. Sioux Tribe of In-

dians v. United States, 146 F.Supp. 229 (Ct. Cl.

1956), vacated and remanded for further proof (see

182 Ct. Cl. 912 (1968); United States v. Sioux Na-

tion, 207 Ct. Cl. 284, 518 F.2d 1298 (1975), cert.

denied, 423 U.S. 1016 (1975). In reaching this re-

sult, I believe that the majority has misconstrued

the law as laid down by decisions of the United States

Supreme Court.

49a

The majority has placed its principal reliance on

this court’s decision in Three Affiliated Tribes of Fort

Berthold Reservation v. United States, 182 Ct. Cl.

543, 390 F.2d 686 (1968), which held that the sole

factor in determining whether Congress had taken

Indian tribal land in violation of the fifth amend-

ment was whether Congress had or had not made

“a good faith effort to give the Indians the full value

of the land.” Fort Berthold, supra, 182 Ct. Cl. at

553, 390 F.2d at 691. Upon the basis of the history

of the acquisition as depicted in the congressional

records, the majority has found that Congress had

not made such a good faith effort when it acquired

the Black Hills from the Sioux. Further, the ma-

jority, in following Fort Berthold’s test, contends

that the Supreme Court’s decision in Lone Wolf v.

Hitchcock, 187 U.S. 553 (1903), has no relevance to

the question of a fifth amendment taking of Indian

tribal land. I respectfully disagree.

Decision of this case requires a careful examina-

tion of the scope of the pertinent Supreme Court

precedents in this area. The first is Lone Wolf v.

Hitchcock, supra, and, initially, I note my agreement

with the view expressed in Judge Nichols’ concurring

opinion, contrary to the reasoning of the court’s opin-

ion, that Lone Wolf *= a precedent applicable to a suit

brought for just compensation for an alleged taking

of Indian tribal property and that Congress has not

excused us from following it. The underlying facts

of that case, which the majority admits “were some-

50a

what similar to those here,” were as follows. The

Indian tribes’ rights in certain lands, set apart for

them in a reservation, had been recognized in a

treaty with the United States. The treaty provided

that these lands could not be disposed of without the

consent of three-fourths of the tribes’ members. Con-

gress negotiated an agreement with the tribes for the

allotment of land to individual Indians and the sale

of unallotted or surplus lands to settlers. Congress

became aware that the requisite number of Indians

had not signed the agreement. The Indians protested

to Congress that their agreement had been obtained

by fraudulent misrepresentations and false promises

and that they had been promised much more for the

surplus lands by the agents of the Government than

the agreement allowed. The agreement, however,

with several modifications, but without any change

in the amount of compensation for the surplus lands,

was enacted by Congress into law.

The Indians immediately went to court seeking an

injunction restraining the Government from carrying

out an unconstitutional deprivation of property rights.

The Indians alleged that the value the statute as-

signed to the surplus lands was far below the land’s

actual value and that the statute, if carried out, would

result in an unconstitutional taking of their property

rights and would deprive the Indians of their prop-

erty rights without due process of law.

The Court sustained the constitutionality of the

statute under Congress’ plenary authority over In-

5la

dian affairs.. The Court held that the exercise of

plenary authority was deemed political, not subject

to control by the judiciary. Thus, the Court would

not and could not examine the charges that Congress

had wrongfully exercised its power.

I believe that Judge Nichols, in his concurring

opinion, has properly stressed the importance of plac-

ing old cases within their historical perspective in

order to understand just what in fact they held so

that their implications can be properly assessed. Lone

Wolf’s ruling on due process has substantive aspects

which directly relate to the “taking” clause of the

fifth amendment as it relates to Indian tribal land.

The due process clause, “nor [shall any person] be

deprived of life, liberty, or property, without due

process of law,” is broader than the eminent domain

clause of the fifth amendment, “nor shall private

property be taken for public use, without just com-

pensation,” and necessarily includes the more specific

part. I NICHOLS, EMINENT DOMAIN § 4.3 (3d ed.

1976). A holding that a statute does not violate due

1 The only provision in the Constitution specifically dealing

with Indians is found in U.S. CONST. art I, § 8, cl. 3, which

grants Congress the power:

“To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.”

In United States v. Kagama, 118 U.S. 375 (1886), however,

the Court recognized that the Federal Government’s power

over Indian affairs is broader than this provision, being

derived from the inherent duty to protect and foster these

dependent people.

52a

process implicitly includes the holding that the emi-

nent domain clause has not been violated.

A difference between the eminent domain and due

process protections of significance here is that the

eminent domain clause is a restriction on govern-

ment’s inherent power to take property for public

use; whereas due process is also a prohibition on the

Government from taking property for private use of

third parties. I NICHOLS, supra § 4.7. This may very

well explain why plaintiffs in Lone Wolf grounded

their claim on the due process clause, for the purpose

of the appropriation, sale of the tribal land to set-

tlers, might well be considered a private use. Both

under eminent domain and due process, however,

when the illegal act is already accomplished and can-

not be prevented, the plaintiff is entitled to just com-

pensation which includes interest.

There was, however, no discussion in Lone Wolf

of the relation between due process and Congress’

plenary power over Indian affairs. The Court simply

concluded that the statute was supported by Congress’

plenary power which “has always been deemed a

political one, not subject to be controlled by the judi-

cial department of the government.” Lone Wolf v.

Hitchcock, supra, 187 U.S. at 565. The Court “must

presume that Congress acted in perfect good faith

** *. In any event, as Congress possessed full power

in the matter, the judiciary cannot question or in-

quire into the motives which prompted the enactment

of this legislation.” [Emphasis added.] Id. at 568.

53a

The sense of the opinion seems to be that Indian tribal

property is simply not protected by the fifth amend-

ment. It may be that the thought then was that due

process protects only “persons” and “private prop-

erty” and that Indian tribes were not “persons” and

Indian tribal property, owned communally, was not

private property. See Choate v. Trapp, 224 U.S. 665

(1912), and Cherokee Nation v. Hitchcock, 187 U.S.

294 (1902), for the relevance of the distinction be-

tween individual Indian land versus Indian tribal

land as it relates to due process. What the majority

fails tc consider is that Lone Wolf held that it was

within Congress’ constitutional power to dispose of

tribal property without regard to good faith or the

amount of compensation.

Subsequent to Lone Wolf, the Supreme Court did

recognize that the power of Congress to dispose of

Indian tribal property was subject to the fifth amend-

ment. See United States v. Klamath & Moadoc

Tribes, 304 U.S. 119 (1938); Shoshone Tribe v.

United States, 299 U.S. 476 (1937); United States

v. Creek Nation, 295 U.S. 108 (1935); Lane v. Pue-

blo of Santa Rosa, 249 U.S. 110 (1919). In Pueblo

of Santa Rosa, the Indians sought an injunction to

prevent the Secretary of the Interior from selling

certain lands as public lands to settlers, which lands

were claimed by the Indians under title recognized

by the United States. The Court ruled that there

would be a threatened unconstitutional taking and

that the Indians would be entitled to an injunction

54a

if Congress had recognized the Indians’ title to the

lands in question, and the Court remanded the case

for a determination of that issue.? In Creek Nation,

certain tribal lands were classified as public lands by

an erroneous survey and were sold by the United

States to settlers. With full knowledge of the facts,

the United States refused to cancel the sales and re-

tained all the benefits it had received from the sales.

In Shoshone Tribe, Government agents gave tribal

lands to other Indians. Congress later ratified this

tortious act and recognized the other Indians’ title.

In Klamath and Moadoc Tribes, the United States

gave individual Indian lands to a state government

for roads. Realizing its mistake, the United States

transferred Indian tribal lands to the state in ex-

change for the individual Indian lands. Several years

later, the United States paid the tribes some money

for the release of their claim. Two cases with similar

facts can be added to this collection—Uintah and

White River Bands of Ute Indians v. United States,

139 Ct. Cl. 1, 152 F.Supp. 958 (1957), and Seminole

Nation v. United States, 102 Ct. Cl. 565 (1944),

cert. denied, 326 U.S. 719 (1945). Thus, a similar

fact pattern emerges in every case: at the time In-

dian tribal land was appropriated (or appropriation

was threatened) by the United States, tribal land

2 It is well settled that Indians have a protected property

interest only in lands held under title recognized by the

United States and not for lands held under aboriginal title.

See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272

(1955).

55a

was treated as if it had been the United States’ own

and no compensation of any form was rendered or

even contemplated. The majority, in attempting to

support its position, denies this fact by claiming that

the Supreme Court has found a taking in one case

where some compensation was paid at the time of

the acquisition. The majority states:

This has been done where no compensation was

originally paid and where the initial compensa-

tion was grossly inadequate.’

7In United States v. Klamath and Moadoc Tribes of

Indians, 304 U.S. 119 (1938), the United States paid

$108,750 in related parts of a single transaction (see

Klamath and Moadoc Tribes v. United States, 85 Ct. Cl.

451, 457-58 (1937) for Indian land which this court

later found to have been worth $2,980,000. The Su-

preme Court held that there was a constitutional taking

for which just compensation had to be paid, including

interest. See 304 U.S. at 122, 123-25.

The statement is correct where it says ‘ iat the

Supreme Court has found a taking “where no con-

sideration was originally paid” at the time of the

appropriation of land.

The second proposition stated, that the Supreme

Court has required payment for a taking “where the

initial compensation was grossly inadequate,” is

bolstered by the cites to United States v. Klamath

and Moadoc Tribes of Indians, 304 U.S. 119 (1938),

and Klamath and Moadoc Tribes v. United States,

85 Ct. Cl. 451, 457-58 (1937), and the statement

that “the United States paid $108,750 in related

parts of a single transaction * * * for Indian land.”

56a

In other words, the taking and payment are sug-

gested to have been just one big transaction and that

the United States paid the tribes some compensation

at the time of the acquisition.

The facts as found by the Court of Claims do not

bear out this conclusion at all. Klamath and Moadoc

Tribes v. United States, 85 Ct. Cl. 451, 457-58

(1937). On June 21, 1906, Congress authorized the

Secretary of the Interior to give Indian tribal lands

in exchange for individual Indian lands it had im-

properly sold to third parties many years before.

The Secretary did convey these lands on August 22,

1906 (the date of taking). “This was done without

the knowledge or consent of the plaintiffs and without

making compensation.” [Emphasis added.] Id. at

457. Thereafter, on November 2, 1907, the Secre-

tary recommended that $108,750 be appropriated

“to compensate them for the lands taken.’” Jd. at

457. Prodded by this recommendation the Congress

on April 30, 1908, did appropriate that sum “ ‘or

so much thereof as may be necessary, to pay the In-

dians * * * for the lands.’” Such payment was con-

ditioned, however, upon an execution by the Indians

of “‘a release of any claims and demands of every

kind against the United States for the land _ in-

volved.’”’ Id. at 458; 35 Stat. 70, 92 (1908).

As summarized by the Supreme Court, “[t]hat

transfer [the transfer of the tribal lands] was made

without the knowledge or consent of plaintiffs and

without giving them any compensation for the lands

so taken from their reservation. Later, however, the

57a

United States paid them $108,750 for which they

released their claim.” [Emphasis added.] United

States v. Klamath and Moadoc Tribes, supra, 304

USS. at 122.

The actions of Congress were thus not a single

transaction but discrete, separate acts, evidenced by

separate statutes and developments mentioned in the

findings. Compensation was neither rendered nor was

any obligation to render any compensation assumed

when Congress gave the land in question to others.

Therefore, the precedents given do not support the

proposition for which they are used. The cases simply

stand for the reasonable rule that Congress cannot

prevent the legal consequences of its acts by render-

ing compensation well after the fact, if that payment

is not just compensation.

In each of these cases, the courts held that the

Government was required to pay just compensation

for the taking of Indian tribal property, which was

held by recognized title. The Supreme Court did not

deny that Congress had plenary authority over In-

dian tribal property, but found that the exercise of

this power was subject to constitutional restraints.

The fullest exposition of this doctrine is found in

United States v. Creek Nation, supra, 295 U.S. at

109-10, where it said:

* * * The tribe was a dependent Indian com-

munity under the guardianship of the United

States, and therefore its property and affairs

were subject to the control and management of

that government. But this power to control and

58a

manage was not absolute. While extending to all

appropriate measures for protecting and advanc-

ing the tribe, it was subject to limitations in-

hering in such a guardianship and to pertinent

constitutional restrictions. It did not enable the

United States to give the tribal lands to others,

or to appropriate them to its own purposes, with-

out rendering, or assuming an obligation to ren-

der, just compensation for them; for that “would

not be an exercise of guardianship, but an act of

confiscation.” Lane v. Pueblo of Santa Rosa, 249

U.S. 110, 118; Cherokee Nation v. Hitchcock,

187 U.S. 294, 307-308.

It is within the framework of these opinions that

this court decided Three Affiliated Tribes of the Fort

Berthold Reservation v. United States, supra, which

is the basis of the majority’s decision that the ac-

quisition of the Black Hills was a compensable tak-

ing under the fifth amendment. Fort Berthold at-

tempted the difficult task of reconciling the various

precedents in the area. The court concluded that the

question to be determined was whether Congress, in

disposing of tribal property, was exercising its power

of eminent domain or its plenary power.

It is obvious that Congress cannot simultan-

eously (1) act as trustee for the benefit of the

Indians, exercising its plenary powers over the

Indians and their property, as it thinks is in

their best interests, and (2) exercise its sover-

eign power of eminent domain, taking the In-

dians’ property within the meaning of the Fifth

Amendment to the Constitution. In any given

situation in which Congress has acted with re-

59a

gard to Indian people, it must have acted either

in one capacity or the other. Congress can own

two hats, but it cannot wear them both at the

same time. [182 Ct. Cl. at 558, 390 F.2d at

691.]

The court examined the pertinent precedents to ©

find a clue to a standard by which the court could

determine which “hat” Congress was wearing. Look-

ing at the factual situation presented in Lone Wolf,

the court found that Congress had made a good faith

effort to give the Indians fair value for their lands.

Thus, the court concluded that it must be the pres-

ence of this effort that made the disposition an exer-

cise of plenary power and not a taking. Looking at

the factual situations presented in the precedents that

had found a taking, the court noted the absence of a

good faith effort to give the Indians fair value for their

lands. Concomitantly, the court decided that the ab-

sence of this effort indicates an exercise of the power

of eminent domain. In essence, the court concluded

that the elusive presence of this good faith effort as

found on the facts of Lone Wolf, showed that Con-

gress was acting as a guardian of Indian affairs.

The absence of facts similar to those of Lone Wolf

demonstrated that Congress was acting as a taker.

The factual situations presented in Pueblo of Santa

Rosa and its progeny, however, are poles apart from

that of Lone Wolf, and the good faith effort standard

does not adequately deal with the disparity of the

facts nor with the legal distinctions present therein.

60a

The cases which actually held that there had been

a taking must be examined both for the Court’s legal

approach and its relation to the facts before the

Court. In Creek Nation, the Court simply stated that

the exercise of plenary power is subject to constitu-

tional restrictions. Such could be read very expan-

sively, i.e., that Congress can never deprive Indian

tribes of their property without rendering or assum-

ing the obligation to render just compensation. In

light of the fact that the Court never overruled,

limited, or distinguished Lone Wolf, however, such a

broad interpretation is clearly unwarranted. View-

ing the specific facts of the cases, we know only that

an unconstitutional taking occurs when the land is

treated as if it were the property of the United

States without any regard or recognition of the prop-

erty rights of the Indian tribes.

Once the United States recognizes that certain

property belongs to Indian tribes, and that the United

States must acquire it from those tribes and provide

the tribes with something in return, as was the case

in Fort Berthold and in our instant case, Pueblo of

Santa Rosa and its progeny simply do not answer

the question of whether there has been a taking.

Fort Berthold postulates that a court may examine

the good faith of Congress in acquiring the property

to determine if a taking has occurred. Application

of such a standard is at odds with Lone Wolf, which

clearly provided that though there was a moral ob-

ligation to act in good faith, since “Congress pos-

sessed full power in the matter, the judiciary cannot

6la

question or inquire into the motives which prompted

the enactment of this legislation.” Lone Wolf v.

Hitchcock, supra, 187 U.S. at 568. Fort Berthold

adopts a standard of review that would overrule

Lone Wolf, and this cannot be done by a lower court.

The majority, however, solves this problem by

simply contending that Lone Wolf has nothing to do

with the taking clause. The majority is the first

court to do this. Illogically, however, the majority

has adopted the Fort Berthold standard which was

derived from a review of pertinent taking prece-

dents, of which Lone Wolf was one. Further, I be-

lieve that the majority has shown its awareness of

the hazards attendant to delving into the good faith

and decision-making process of a past Congress by

stressing, in its evaluation of the question of Con-

gress’ good faith in acquiring the Black Hills, the

pronouncements of official legislative records. Carried

to its logical extreme, if Congress “purports” in

official records to give fair value, good faith is es-

tablished no matter how insufficient the compensa-

tion was that Congress paid for the land.

The test laid down by Fort Berthold contradicts

itself by its own terms. The court there provided:

* * * Where Congress makes a good faith ef-

fort to give the Indians the full value of the land

and thus merely transmutes the property from

land to money, there is no taking. This is a

mere substitution of assets or change of form

and is a traditional function of a trustee. * * *

[182 Ct. Cl. at 553, 390 F.2d at 691.]

62a

How can it be said that Congress is simply per-

forming the traditional function of a trustee when

it disposes of Indian tribal property for a grossly

inadequate amount? This was the standard applied

and found to be satisfied in Fort Berthold when Con-

gress exchanged Indian tribal land for approximately

40 percent of its fair market value. Under Fort

Berthold’s analysis, good faith was found in Lone

Wolf where in the follow-up case, Kiowa, Comanche

and Apache Tribes v. United States, 148 Ct. Cl. 534,

166 F.Supp. 939 (1958), cert. denied, 359 U.S. 934

(1959), the amount paid in exchange was less than

50 percent ef the land’s fair market value. The

standard makes a mockery out of the fifth amend-

ment protections it purports to extend to the tribes,

making its effectiveness dependent on an abstract,

insubstantial finding.

Nor has Fort Berthold’s liberalized standard had

much significance in forming the basis for judgments

in favor of Indians up until this case. In Fort

Berthold itself, the standard justified judgment for

the Indians only on one claim out of many alleged.

This was for land (school land) purchased by the

United States at a fixed price per acre to be given

to state governments for educational purposes. A

member of Fort Berthold’s majority in a later re-

view of that case suggested that this holding was

wrong. Three Affiliated Tribes of Fort Berthold v.

United States, 204 Ct. Cl. 831, 833-34, cert. denied,

419 U.S. 961 (1974). In Confederated Salish and

Kootenai Tribes v. United States, 193 Ct. Cl. 801,

63a

437 F.2d 458 (1971), a similar holding on school

lands was rendered on the basis of Fort Berthold.

Also, a taking was found when the United States

acquired land for a national bison range, had an

independent appraisal of the land, and paid the full

appraised value. I simply cannot see how this failed

Fort Berthold’s good faith test. In Klamath and

Modoc Tribes v. United States, 193 Ct. Cl. 486 F.2d

1008, cert. denied sub nom. Anderson v. United

States, 404 U.S. 950 (1971), the defendant con-

ceded that land acquired by the United States had

been taken in violation of the Constitution. The court

commented that the concession was correct because

when the United States acquires for its own benefit |

it is always a taking. This dicta has been repudiated

by the majority today and we agree. For, whether

the United States acquires for itself or for third

parties, it is the power of the United States that has

made possible the unconsented appropriation. Thus,

if we were to analyze Klamath and Modoc Tribes to-

day as the majority would have us do, we would ar-

rive at the startling result that when land is ap-

praised and sold to third parties at the appraised

value, good faith is demonstrated, while if the United

States pays that same appraised value, good faith is

lacking.

The law the Supreme Court has laid down govern-

ing the legal rights of Indian tribes guaranteed by

the fifth amendment is at best ambiguous. I believe

that courts must be careful in construing ambiguous

binding precedents where the results of liberal con-

64a

struction are enormous judgments against the United

States. Cf. United States v. Zazove, 334 U.S. 602,

617 (1948) ; Pine Hill Coal Co. v. United States, 259

U.S. 191, 196 (1922); Schellfeffer v. United States,

179 Ct. Cl. 178, 348 F.2d 936 (1965). Though it is

quite possible current popular attitudes concerning

the relationship between due process and Congress’

plenary power over Indian tribal property have

changed in favor of the extension of the constitutional

protections, it is not this court’s function to advance

these attitudes when such an approach cannot be im-

plied without emasculation of Supreme Court prece-

dents.* Further, Fort Berthold is an example of the

unsatisfactory or illogical results that are reached

when trying to liberalize ambiguous precedent, for

the good faith test itself does not achieve a proper

approach to the delicate relationship between due

process and plenary power. Thus, Fort Berthold is

not a proper statement of the law and should be over-

ruled.

The law we should apply is that once Congress

has, through negotiation or statute, recognized the

Indian tribes’ rights in the property, has disposed of

it, and has given value to the Indians for it, that is

3 The extreme to which the court goes in undoing the Su-

preme Court’s decision in Lone Wolf is illustrated by its need

to rely on a dissenting opinion of the Court of Claims where

this issue was not even presented as authority to modify the

Lone Wolf principle that courts cannot examine the adequacy

of the consideration Congress gives for Indian lands taken.

Uniied States v. Sioux Nation, supra, 207 Ct. Cl. at 250, 518

F.2d at 1307.

65a

the end of the matter. Courts should not and cannot

investigate and rule on the good faith of Congress in

enacting legislation, as the majority opinion does

here. The separation-of-powers doctrine, bedrock of

our Constitution, is offended by so doing. It would be

the same if Congress questioned the good faith of

this court’s decisions. Of course, it will be contended

that unless we can review the good faith of Congress

in what it does we will be allowing it absolute power

to ride roughshod over the Constitution. Constitu-

tionai questions, however, are not properly resolved

by the fuzzy test of good faith. In this instance,

Congress exercised its own oversight and recognized

a breach of its moral obligations in 1877. Since

1946, when Congress established the Indian Claims

Commission, it has made available a remedy to right

moral wrongs to Indians. The Sioux Nation availed

itself of that remedy to recover $17,553,484 for

breach of the moral duty of Congress to them in this

particular instance. We have affirmed that judgment.

United States v. Sioux Nation, 207 Ct. Cl. 234, 518

F.2d 1298, cert. denied, 423 U.S. 1016 (1975).

The conclusion of the majority is that the disposi-

tion of the Black Hills in exchange for 900,000 acres

of land and a promise to supply rations “until the

Indians are able to support themselves,” could not be

an exercise of Congress’ plenary power over Indian

affairs to foster and protect these people because the

official pronouncements of Congress do not: explicitly

demonstrate that it equated the value of the consider-

66a

ation with the value of the land. Thus, the court pre-

sumed utmost bad faith and indifference to the best

interests of the Indians. The majority retreats some-

what from its sole reliance on official records as dis-

positive of Congress’ good faith effort in asserting

that “an essential element of the inquiry under the

Fort Berthold guideline is determining the adequacy

of the consideration the government gave for the

Indian lands it acquired.” Neither the Supreme Court

nor the Court of Claims has ever examined the ade-

quacy of the consideration given in exchange in order

to determine if there has been a taking and this is

directly contrary to Fort Berthold’s holding. In any

event, turning from official pronouncements to what

Congress actually did, a much different picture

emerges. Prior to the acquisition of the Black Hills,

Congress had obligated itself by the treaty of 1868

to supply food to the Sioux for 4 years. The expendi-

ture for these rations was over $5 million. Once this

treaty obligation had ended, Congress continued gra-

tuitously to supply food for fiscal years 1874 and

1875 at the cost of $2,350,000. In 1875, the Secre-

tary of the Interior suggested that Congress might

continue the rations in the future in consideration of

certain property concessions by the tribes. It is sig-

nificant that the report of the Committee on Indian

Affairs of March 15, 1876, accompanied a bill which

provided for the Allison Commission to negotiate

with the Sioux for cession of the Black Hills in re-

* See note 8 supra.

67a

turn for which the United States would provide the

Indians with subsistence for not more than 10 years.

Based on prior experience, at a cost of one and one-

quarter million dollars a year, certainly the Senate

committee contemplated a substantial consideration

of around $12 million which could be committed to

the Indians by the Allison Commission. This $12

million is not so far off from the value of the Black

Hills found by the Indian Claims Commission in 1976.

Congress, therefore, was well aware of the past

cost of the obligation to feed the Sioux and it is obvi-

ous that this cost was reasonable evidence to Con-

gress of the magnitude of the obligation to supply

rations. Congress, however, went far beyond the

Senate committee’s recommendation to supply food

for 10 years and assumed an open-ended obligation

in exchange for the Black Hills in the 1877 Act. The

majority’s view that the rations were not considera-

tion for the Black Hills is untenable. What else was

the money for? Such an obligation by the United

States Government, though it might be difficult to

value in terms of the marketplace at that time, has

been of inestimable value to the Indians. Perform-

ance of this promise spanned several generations and

in dollar terms was many times the Indian Claims

Commission’s valuation of the lands acquired by the

United States. The court has admitted as much.

5 An 8-volume report by the General Accounting Office,

numbering over 4,300 pages, accounts for over $109 million

disbursed to the Sioux up to June 30, 1925. Of this amount,

$36,930,367 represented charges against the 1877 Act and,

68a,

Congress added to the Sioux reservation 900,000

acres of land as well, in exchange for the Black Hills.

Where is there evidence showing that Congress did

not believe, based on its judgment, that this exchange

of land for food, rations, provisions, and other land

was in the best interests of the Sioux? And yet, the

majority determines that Congress was not properly

exercising its plenary powers to foster and protect

the Sioux in this instance, while it was in Fort Bert-

hold and Kiowa, Comanche and Apache Tribes, where

it exchanged tribal land for less than half of its fair

market value!

The large judgment previously rendered in favor

of the Sioux under the “fair and honorable” dealings

section of the Indian Claims Commission Act, 25

U.S.C. §§ 70-70w, was for the full value of the Black

Hills and other claims. Congress, by legislation, 88

Stat. 1499, 1500 (1974), 92 Stat. 153 (1978), has

provided that the value of the food, rations, and pro-

visions, which are otherwise properly an offset to

this judgment, will not be taken into consideration as

payment on the claims. The court goes another step

and quite properly declares that, while there can be

no such offset, the same statutes do not bar the cost

of food, rations, and provisions from being treated as

consideration for the land, though it improperly, I

in addition, there was almost $16 million in gratuities. The

record before us does not bring these costs up to date. The

majority opinion states that the Government has expended

$43 million on rations and provisions for the Sioux but does

not state for what period. Defendant uses a figure of $57

million.

69a

think, concludes that these millions were not consid-

eration. Thus, under statutory authority, the Sioux

tribes are entitled to, and will receive, $17,553,484,

which was the amount granted by the 1976 judgment

of the commission affirmed by this court. However,

Congress has never permitted the awzrd of interest

on such statutory or moral claims, though it certain-

ly could have. Therefore, this court is only author-

ized to grant interest on the claim upon a finding

of a constitutional violation under decisional law.

The court now holds, based on very ambiguous prece-

dent, that the Indians are entitled to extra compensa-

tion in the form of simple interest at the rate of 5

percent for over 102 years for a “taking.” This re-

sults in a staggering judgment of approximately

$105,000,000. Such a judgment is the product of a

distorted conception of the precedents, as I have

shown.

A proper result reached by strict application of

the Supreme Court’s decisions, which would deter-

mine that the claim is solely statutory, would not

prevent these Indians from receiving a major judg-

ment for a moral claim. This is not a case where

the court must stretch in order that plaintiffs can

recover at all. The circumstance which demonstrates

a clear wrong in terms of today’s perceptions of what

is moral, fair, and honorable, presented here a claim

under the Indian Claims Commission Act on which

the Indians have prevailed. If Congress thinks that

plaintiffs are entitled to more money for the wrong

their ancesters suffered, it can make such an award

70a

as a gratuity. This would be in further hindsight

redress of its behavior 102 years ago in exercise of

its plenary powers to bring peace to the Black Hills

under difficult circumstances we can today hardly

appreciate. But, there is just no clear and reliable

precedent for the court to find a taking, which would

provide plaintiffs approximately $90 million addi-

tional in interest, as a matter of law. The court has

said before, in well-considered opinions which the

Supreme Court declined to review, that there was no

taking here. The facts have not changed. We have

been offered no new evidence. There is no justifica-

tion for appearing to yield now to pressure in this

matter to cloak an award with the trappings of ju-

dicial authority that does not clearly exist. The sep-

aration of powers militates against it. I reject the

court’s holding that its result is legally mandated.

Plaintiffs have been paid twice on their claim: first,

by the 1876-77 Congress and its successors in pro-

viding the huge subsistence payments and, second,

by being given full value for their rights in a judg-

ment by the Indian Claims Commission, which we

have affirmed, and the defendant does not now con-

test.

For all of these reasons, I respectfully dissent from

the opinion and judgment of the court, except for

part V of the opinion which rejects plaintiff’s claim

that removal of gold by trespassing miners was a

taking by, or ratified by, the United States.

Tla

APPENDIX B

IN THE UNITED STATES COURT OF CLAIMS

No. 148-78

Sioux NATION OF INDIANS, ET AL.*

Vv.

THE UNITED STATES

July 31, 1979

ORDER

This case came before the court on appeal from

the Indian Claims Commission under a special ju-

risdictional statute on the issue of whether the Com-

mission had correctly held that an 1877 statute un-

der which the United States acquired certain lands

from the Sioux Indians constituted a taking of those

lands for which the United States was required to

pay just compensation under the fifth amendment

and that the fair market value of the land and other

interests in it that the government thus acquired

* Cheyenne River Sioux Tribe, Sioux Tribe of the Fort

Peck Reservation Montana, Pine Ridge Sioux Tribe, Rosebud

Sioux Tribe, Crow Creek Sioux Tribe, Lower Brule Sioux

Tribe, Santee Sioux Tribe and Standing Rock Sioux Tribe.

72a

was $17,553,484, which included the sum of $450,000

for gold that miners took from the land before the

1877 statute. Establishment of a taking by the

government would not only create its liability for

the value of the property taken but also for inter-

est from the date of taking.

On June 13, 1979, the court entered its decision

affirming the order of the Indian Claims Commission

on February 15, 1974 insofar as it held that the Act

of February 28, 1877 constituted a taking of the

Sioux land in the Black Hills and the rights-of-way

acquired thereunder, but reversing said order inso-

far as it held that the removal of gold from the

Great Sioux Reservation prior to February 28, 1877

constituted a taking.

The case now comes before the court on plaintiffs’

motion, filed July 3, 1979, moving the court “for the

entry of judgment pursuant to the opinion and de-

cision of the court of June 13, 1979, in the sum of

$17,553,484, plus interest as a measure of just com-

pensation at the rate of 5 percent per annum on the

sum of $17,103,484 of said sum of $17,553,484, from

February 28, 1877 to the date of payment.” On July

20, 1979, defendant filed a response stating “that

it has no objection to the entry of judgment as pro-

posed by plaintiffs’ motion cf July 3, 1979” with the

understanding “that the judgment will encompass

all claims in No. 148-78 and in iis predecessor case,

Docket No. 74-B, before the Indian Claiins Commis-

sion and that the judgment will be subject to the

parties’ right to seek review from the court’s de-

73a

termination of June 13, 1979.” On July 24, 1979,

plaintiffs filed a reply confirming agreement to de-

fendant’s said understanding. Upon consideration

thereof, without oral argument,

IT IS CONCLUDED AND ORDERED, on the ba-

sis of the above and the decision of this court of

June 13, 1979, that plaintiffs’ said motion for entry

of judgment be and the same is granted to the ex-

tent that judgment is entered for plaintiffs for seven-

teen million five hundred fifty-three thousand four

hundred eighty-four dollars ($17,553,484) plus in-

terest as a measure of just compensation at the rate

of 5 percent per annum on the sum of $17,103,484 of

said sum of $17,553,484 from February 28, 1877,

to the date of payment.

This judgment will encompass all claims in No.

148-78 and in its predecessor case, Docket No. 74-B,

before the Indian Claims Commission and it will be

subject to the parties’ right to seek review from the

court’s determinations on June 13, 1979.

By THE COURT

/s/ Oscar H. Davis

Oscar H. DAVIS

Acting Chief Judge

W U. 8. GOVERNMENT PRINTING OFFICE; 1979 302970 104