# Petition — Harbolt v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 985

## Text

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imi is = aK JR., CLERK

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

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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 perc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1117%3A1. Public record. Not legal advice.