Opposition Brief — Littlewolf v. Lujan

Supreme Court, U.S.

; FILED

DEC 15 1989

No. 89-538 JOSEPH F. SPANIOL, Jp

In the Supreme Court of the Gnited States

OcTOBER TERM, 1989

he

EDNA EMERSON LITTLEWOLF, ET AL., PETITIONERS

Vv.

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BR'EF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

JOHN G. ROBERTS, JR.

Acting Solicitor General

RICHARD B. STEWART

Assisiant Attorney General

ROBERT L. KLARQUIST

EDWARD J. PASSARELLI

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the White Earth Reservation Land Settlement

Act, 25 U.S.C. 331 note (Supp. V 1987), by limiting the

time in which certain Indian land claims may be made -

against third parties, establishing statutory compensation

for those claims in the alternative, and providing a Tucker

Act remedy for claimants dissatisfied with the statutory

compensation, on its face takes petitioners’ property with-

Out just compensation.

(I)

TABLE OF CONTENTS

Page

EE l

nk ks ap bos ees cise cee eee se |

a ne l

Me Gas bah tale ks oe ans slcleceeeeeess 7

eee ee ee ea 55-5 ae a 13

TABLE OF AUTHORITIES

Cases:

Duke Power Co. v. Carolina Environmental Study

EE, SUPER OUOD . gcc ccc esc ececne 8

Fineday v. United States, Civ. No. 6-88-18 (D.

eee er eeereveves 4

First English Evangelical Lutheran Church vy.

County of Los Angeles, 482 U.S. 304 (1987) .... y

Manypenny v. United States, Civ. No. 4-86-770

(D. Minn. Feb. 16, 1988) .................. 4

Members of the City Council vy. Taxpayers for

Vincent, 466 U.S. 789 (1984) ................. y

Pitcairn v. United States, 547 F.2d 1106 (Ct. Cl.

eran acre. ss w 6. 6.0c.0cdceeeeee's 12

Regional Rail Reorganization Act Cases, 419 U.S.

as 8,9

Ruckelshaus v. Monsanto Co., 467 U.S. 986

ee en else eee ccs 7, 8,9

State v. Zay Zah, 259 N.W.2d 580 (Minn. 1977),

cert. denied, 436 U.S. 917 (1978) .............. 2

United States v. Creek Nation, 295 U.S. 103

ee i oa es pp ks ues cee cesses 12

United States v. Sioux Nation, 448 U.S. 371

I gs gc ccls ok ie havccceececs 12-13

Williamson County Regional Planning Coniun'’n vy.

Hamilton Bank, 473 U.S. 172 (1985)... 000... 8

(III)

lV

Constitution, treaty and statutes: Page

SR ee bh See a ee re 9

Treaty of Mar. 19, 1867, 16 Stat. 719............ 2

Act of Mar: 1, 1907, ch. 2285, 34 Stat. 1034...... 2

Clapp Amendment (Act of June 21, 1906), ch.

PO Pe MN I ae oo Sk Sk 6 dw wide a aK alec 2

Wecwer ct, TOUS... 0A sco ov cin vn vcccce. 4

White Earth Reservation Land Settlement Act of

1985, Pub. L. No. 99-264, 100 Stat. 61 (25

U.S.C. 331 note (Supp. V 1987)):

IR AAUER ER Sp LT delhi anna IR 3

A es eld airy ae RS Face en pS oS 0 tal 12

NE chen ge ae ato eae ee pe 3

| RRS rape penn is hora & Me ieaste 4,9, 11

A Arte PRO NORER IAD, Oi. oe eoeded 3

1 RARER IEA Aare al mamas Pry ee ea eee 3,4

| RRS re re eer Ean PUREE A eke fg Mee

Ee Salone rate as Cre Pen eens Sr aren ee 4

DE COC rt ew aad ee eres Sere 3

Miscellaneous:

131 Cong. Rec. (1985):

EN ca a ee ee 12

DMC yoo Cowen ewece ceed cesta k em eee us 10

132 Cong. Rec. 4215 (1986) .................... 1]

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-538

EDNA EMERSON LITTLEWOLF, ET AL., PETITIONERS

Vv,

MANUEL LUJAN, JR., SECRETARY OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A14)

is reported at 877 F.2d 1058. The opinion of the district

court (Pet. App. A15-A46) is reported at 681 F. Supp.

929.

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 1989. The petition for a writ of certiorari was

filed on September 28, 1989. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners brought this action as a class seeking an in-

junction and order declaring the White Earth Reservation

(1)

2

Land Settlement Act of 1985 (WELSA), Pub. L. No.

99-264, 100 Stat. 61, unconstitutional. WELSA is intend-

ed to resolve fifty-year-old claims to former Indian allot-

ments on the White Earth Reservation by imposing a

Statute of limitations on the filing of suits by Indian claim-

ants for title or damages, retroactively ratifying past trans-

fers of these allotments once the limitations period has ex-

pired, and providing for compensation of all eligible

claimants who have elected not to file suit for title or

damages.

1. Pursuant to the Treaty of March 19, 1867, 16 Stat.

719, the United States established the White Earth Reser-

vation, consisting Of approximately 830,000 acres in

northwestern Minnesota, for the benefit of certain Chip-

pewa Indians. In the late 1800’s and during the first few

years of this century, a large portion of the reservation

land was allotted to individual Indians through restricted

deeds of trust. Pet. App. A3. In 1906, however, Congress

passed the Clapp Amendment (Act of June 21, 1906), ch.

3504, 34 Stat. 353, as amended by the Act of March 1,

1907, ch. 2285, 34 Stat. 1034, semoving restrictions on

allotments held by adult mixed-blood Indians, and

authorizing the granting of fee simple title to adult mixed-

blood and, in certain circumstances, to full-blood Indians.

As a result, many of the allotments passed into non-Indian

possession. Pet. App. A3-A4.

In 1979, the Secretary of the Lnterior, relying in part

upon a decision of the Minnesota Supreme Court, S/ate v.

Zay Zah, 259 N.W.2d 580 (1977), cert. denied, 436 U.S.

917 (1978), which held that the Clapp Amendment could

not unilaterally abrogate the trust status of a White Earth

allotment, determined that the transactions which led to

many of the alleged terminations of the allottees’ interests

had been made in violation of the trust deed restrictions

and that the purported conveyances were, therefore, in-

effective. Pet. App. AS. The effect of Zay Zah and the

Secretary’s determination was to cloud title to more than

100,000 acres, resulting in “social and economic chaos.”

Pet. App. AS-A6.

2. In 1986, Congress acted to settle permanently the

“unresolved legal uncertainties” concerning title to the

allotted reservation lands by enacting WELSA. 25 U.S.C

331 note (Section 2(6)) (Supp. V 1987). The Act limits the

time in which Indian allottees and their heirs may bring

claims: Section 6(c) provides that “any action in any court

to recover tithe or damages” with respect to the alleged in-

valid conveyances “shall be forever barred” unless brought

within 180 days of the date of the enactment of WELSA or

prior to the Secretary’s certificaton of certain described

events, whichever occurs later.' The Secretary’s certifica-

tion occurred on March 21, 1988, approximately two years

after WELSA’s enactment, thus barring further suits

against third parties. See Pet. App. A7.

In the alternative, the Act allows Indian allottees or

their heirs to receive compensation for their claims from

the United States, in an amount to be determined admini-

stratively. Section 8 of the Act, in conjunction with Sec-

tion 7, directs the Secretary to investigate the White Earth

allotments, ascertain which Ones wrongfully passed from

the allottees’ possession, and then determine compensa-

tion based upon the fair market value as of the date of the

alleged invalid transaction, plus interest. The respective

' WELSA required the Secretary to certify, by publication in the

Federal Register, that certain conditions required by Section 10 ol

WELSA had been fulfilled. Those conditions include the donation by

the State of Minnesota of 10,000 acres of land to be held tn trust for

the Chippewa Indians, an appropriation by the State of $500,000 to

assist in the settlement provided for in WELSA, and an appropriation

by the United States of $6,600,000 tor economic development to bene-

fit the White Earth Band of the Chippewa Indians

4

allottee or heirs then have 180 days following written noti-

fication of the Secretary’s determination in which to seek

judicial review of its sufficiency. 25 U.S.C. 331 note (Sec-

tion 8(d)) (Supp. V 1987). The statutory compensation

remedy available under Section 8 is not available to claim-

ants who have timely filed Section 6(d) suits against third

parties. 25 U.S.C. 331 note (Section 6(d)) (Supp. V 1987).

Finally, Section 6(d) provides that a claimant may chai-

lenge the constitutional adequacy of the statutory compen-

sation that the Secretary determines to be due by filing suit

under the Tucker Act, 28 U.S.C. 1491, within 180 days of

receiving notice of the Secretary’s determination.

In summary, then, the Act provides three different

routes by which an allegedly wrongfully dispossessed allot-

tee or heirs may obtain redress. First, each claimant had a

period of approximately two years beyond the passage of

the Act in which to bring actions against third parties. Sec-

ond, a claimant is entitled to an administratively deter-

mined amount of compensation. Finally, the claimant

may reject the administratively determined compensation

and instead make a claim under the Tucker Act, within

180 days of the riotification of the Secretary’s determina-

tion.

3. Petitioners are a class of Indians whose claims to

the land on the White Earth Reservation have been af-

fected by WELSA.? The class brought suit on a number of

grounds, including the claim that WELSA violates due

process because it provided for an inadequate amount of

time to file suit for tithe and damages. Pet. App. A24.

> Included amoung the named petitioners are many who filed

separate suits in district court within the time allowed by WELSA to

test title and seek damages. Those suits were found subject to substan

tial legal defenses resulting in dismissals. Manypenny v. United Siates,

Civ. No. 4-86-770 (D. Minn. Feb. 16, 1088); Fineday v. United States,

Civ. No. 6-88-18 (D. Minn. Jan. 10, 1989)

Petitioners further argued that WELSA effects a taking of

property without just compensation, despite their entitle-

ment to administratively determined compensation and

the availability of a Tucker Act remedy. /bid. Petitioners

sought injunctive relief and, alternatively, a declaration

that the Act is unconstitutional. Pet. App. Al6.

4. The district court entered summary judgment on

behalf of respondents. Pet. App. Al6-A46. Examining

Congress’s action in light of the government’s generalized

trust responsibility towards Native Americans, the ('strict

court ruled that WELSA’s iimitations period for filing suit

comports with due process requirements, noting that it

was “rationally related to the government’s legitimate in-

terest in protecting thousands of Indian claimants from

the need to litigate thousands of expensive, time-consum-

ing individual actions to recover any compensation for

their claims.” Pet. App. A26. Hence, the court reasoned,

the Act properly implements Congress’s valid legislative

goals of encouraging either prompt suit by Indian claim-

ants or their receipt of a monetary settlement so as quickly

to right the wrong done to the White Earth Band and to

clear tithe to the large land area affected.’ Pet. App.

A26-A29.

The court further held that the imposition of a limita-

tions period on the time to bring suit did not effect a “tak-

ing” of the claimants’ right to sue because the Act afforded

the claimants a reasonable opportunity to bring suit. Pet.

_ App. A36. Nor did WELSA unconstitutionally take

claimed interests in land, few of which had been “tested in

court” (ibid.), because Congress expressly provided a

’ The district court noted that petitioners had had, in tact, a halt

century in which to file suit. It explained that the Indians’ trust rela-

uionship with the United States could excuse them trom a detense ot

laches but did not exempt them from the imposition of a time con-

straint on their future ability to bring suit. Pet. App. A.29-A30

6

remedy for the claimants to recover just compensation for

any takings. Pet. App. A37. The Act not only established

a Statutory compensation scheme designed in “good faith

* * * to compensate plaintiffs fairly,” but also explicitly

confirmed the availability of a Tucker Act remedy to chal-

lenge the adequacy of the amount of compensation deter-

mined by the Secretary to be due. Pet. App. A37-A43.

The district court rejected petitioners’ claim that the Act

improperly limited the Tucker Act remedy. The court ob-

served that the six-month limitations period on Tucker Act

Suits is triggered only when a claimant receives the Secre-

tary’s determination of the statutory amount of compensa-

tion he or she is due, on a date almost certainly more than

six years (the normal period allowed for the filing of a

Tucker Act suit) after any taking had occurred. Pet. App.

A42. In any event, the court ruled, it could not fault Con-

gress’s judgment that the six-month limitations period is

reasonable under the circumstances. [bid.

5. The court of appeals affirmed. Pet. App. Al-A14.

The court found it unnecessary to address the issue

whether the time permitted by WELSA for bringing

damages or recovery suits against third parties is so inade-

quate as to offend due process. Assuming that WELSA

does effect a taking of rights to recover against third par-

ties, the court of appeals found the statute constitutional

nonetheless, because it provides adequate remedies for re-

covering just compensation. Pet. App. Al1l-Al2. The

court agreed with the district court’s conclusion that the

Act’s provision for administrative compensation is a good

faith effort to compensate petitioners fairly. Pet. App.

Al3. It further held that, in any event, the alternative

Tucker Act remedy “ensures full compensation in those

particular instances where the statutory payment might

not adequately compensate claimants.” /bid. The court

7

determined in addition that “under the circumstances of

this case,” where Congress by enacting WELSA had

alerted the White Earth Band members that the Secretary

would be investigating claims and determining compensa-

tion over the next several years, and where the Secretary is

to give notice to potential claimants when a compensation

determination has been made, the six-month period for

bringing Tucker Act suits is as meaningful as a six-year

period without such notice would be. Pet. App. A1l3-A14.

ARGUMENT

The court of appeals correctly rvled that WELSA ex-

pressly ensures constitutionally adequate compensation in

the unique factual circumstances presented by petitioners’

uncertain claims for title and damages. The court’s deter-

mination does not conflict with any decision of this Court

or any court of appeals. And, because petitioners have a

fully adequate remedy for recovering just compensation

for any taking arising from the operation of the statute,

this case raises no issue of general importance warranting

review by this Court.

1. At the outset, petitioners would have this Court

review an issue that the court of appeals properly decided

not to resolve. Petitioners contend (Pet. 21-28) that the

lower court was required to determine whether, in each in-

stance, the administrative compensation provided by Sec-

tion 8(a) of WELSA will be adequate to satisfy the nature

of the property interest they contend was taken, irrespec-

tive of the Tucker Act remedy that is also expressly provid-

ed by WELSA.

However, determinations related to takings litigation

are by nature fact specific. “The inquiry into whether a

taking has occurred is essentially an ‘ad hoc, factual’ in-

quiry.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005

8

(1984). Clearly, where a statute, as here, provides for ad-

ministrative compensation for uncertain legal claims, con-

stitutional sufficiency can be determined only after analyz-

ing the factual and legal basis for each claim and compar-

ing it with the compensation provided. As this Court has

repeatedly held, it is inappropriate for a court to render

hypothetical views on whether an uncompensated taking

has occurred before the claimant has pursued administra-

tive and other remedies that may render that holding un-

necessary. See, e.g., Williamson County Regional Plan-

ning Comm’n v. Hamilton Bank, 473 U.S. 172, 186-197

(1985); Ruckelshaus, 467 U.S. at 1013 & n.16, 1019; Duke

Power Co. v. Carolina Environmental Study Group, 438

U.S. 59, 94 n.39 (1978).4

Further, even if it could be assumed that a given claim-

ant might receive less in administrative compensation than

the Constitution demands, it does not follow that WELSA

4 Thus, in the Regional Rail Reorganization Act Cases, 419 U.S.

102, 146 (1974), the Court noted in particular that disputes about

valuation theories require resolution on a developed factual record

that includes evidence of actual figures. As the Court commented

there, a record that provides the “confining circumstances of par-

ticular situations” can best inform constitutional adjudication. /bid.

Here, the most petitioners can offer.is a comparison between a Con-

gressional Budget Office (CBO) estimate and the State of Minnesoia’s

valuation of 10,000 acres to be transferred to the tribe to argue that

evidence suggests that Congress intended less than adequate compen-

sation. See Pet. 23-24. But first, the CBO estimate is only an estimate

and funding is in no way limited by the estimate. Indeed, there was

evidence in the record below that in some instances the compensation

formula would yield more than the current value of the properties in

question. Golden Affidavit, C.A. App. 726-728. Second, petitioners

confuse the.market value of their uncertain claims with the market

value of the land. Third, petitioners assume, without substantiation,

that the properties being transferred by the State of Minnesota are of

equivalent value to the land lost by Indian allottees in the early part of

the century.

CAS EE SO er ee -_

9

is unconstitutional on its face. Rather, the claim that Sec-

tion 8(a) is unconstitutional could be made only as applied

to that factual situation. See Members of the City Council

v. Taxpayers for Vincent, 466 U.S. 789, 797-798 (1984) (“a

holding of facial invalidity expresses the conclusion that

the statute could never be applied in a valid manner”).

2. Even in that case, the claim would fail because

WELSA makes available the “safety net” of a Tucker Act

remedy. As the Court made clear in Ruckelshaus v. Mon-

santo Co., 467 U.S. 986, 1019-1020 (1984), and in the

Regional Rail Reorganization Act Cases, 419 U.S. 102,

155-156 (1974), the availability of a Tucker Act remedy en-

sures that no less than the constitutionally required

amount of compensation is available. The Tucker Act

remedy thus guarantees that there will be no improper

“taking,” even where an alternative statutory compensa-

tion scheme may not suffice to provide just compensa-

tion.> See Monsanto, 467 U.S. at 1018-1019; Regional Rail

Reorganization Act Cases, 419.U.S. at 155-156.

Here, the Act’s express terms and legislative history

make clear that Congress intended to provide adequate

compensation for any taking that might occur by under-

scoring the availability of a Tucker Act remedy. Section

6(d) of WELSA provides:

This section shall not bar an heir, allottee, or any

other person entitled to compensation under this Act

from maintaining an action * * * against the United

States in the Claims Court pursuant to the Tucker

Act, section 1491 of Title 28, United States Code

* * *

> The takings clause of the Fifth Amendment “does not prohibit the

taking of private property, but instead places a condition on the exer-

cise of that power,” the obligation to pay just compensation. Firs/

English Evangelical Lutheran Church v. County of Los Angeles, 482

U.S. 304, 314-315 (1987).

i0

The legislative history of WELSA confirms that the

Tucker Act remedy was included “to remove any risk that

a court might hold it unconstitutional” (131 Cong. Rec.

36,248 (1985)):

S. 1396 has addressed the taking issue by explicitiy

providing * * * a Tucker Act remedy to any person

entitled to just compensation for the loss of his prop-

erty.

Ibid.

Hence, claimants who are dissatisfied with the adminis-

tratively determined compensation can sue the United

States in the Claims Court for just compensation for any

taking that may have occurred.°®

3. Nor is there merit in petitioners’ contention (Pet.

33-37) that WELSA impermissibly restricts the Tucker Act

remedy. The specification of a time period in which

claimants may use the Tucker Act remedy does not under-

mine the implied promise to pay for any taking that may

result from WELSA. Rather, claimants simply must file

their Tucker Act suit six months after an administrative

determination of the compensation due them.

The district court, affirmed by the court of appeals,

properly found this period to be a reasonable one. The

district court recognized that because of the timing of the

administrative determination, petitioners would, in fact,

almost certainly have in excess of six years from the date

of the alleged taking in which to file suit, which is more

than plaintiffs normally have to file other Tucker Act

complaints. Pet. App. A42. Moreover, as the court of ap-

peals found, Congress by enacting WELSA alerted White

6 The fact that petitioners may prefer direct access to the Tucker

Act remedy rather than resort first to the administrative remedy

authorized by the Act does not mean that the Act effects an un-

compensated taking or is otherwise unconstitutional.

11

Earth Band members that the Secretary would be deter-

mining the value of their claims over several years, and the

Secretary is directed by the statute to notify claimants of

that determination before the six-month time .period for

claims is triggered. In this context, the notice provided by

the Secretary makes the six-month period as meaningful as

a longer, six-year period without notice. Pet. App. Al3.

This is particularly true because the availability of a fac-

tual record generated by the administrative process is like-

ly to enable a claimant to bring an action far more swiftly

than a typical Tucker Act claimant. Pet. App. A42-A43.

Accordingly, the courts below properly upheld the statu-

tory period in which petitioners may file a Tucker Act

claim as a reasonable one; that ruling does not warrant

further review by this Court.

Nor does WELSA impermissibly burden the making of

a Tucker-Act claim by requiring forfeiture of administra-

tively determined compensation when a Tucker Act claim

is filed. See Pet. 34-35. The rorfeiture provision prevents

double recovery. Moreover, because those opting for

Claims Court relief retain a full remedy for their taking

claims, the amount forfeited is simply a congressionally

provided gratuity.’

4. In any event, the administratively determined com-

pensation authorized by the statute is fully adequate (in-

deed, more than adequate) for the uncertain causes of ac-

tion at issue in this case. The claims against third parties

that were extinguished if suit was not brought within 23

months after enactment of WELSA were “untested and of

unknown legal value.” 132 Cong. Rec. 4215 (1986). It was

” Nor is the Tucker Act remedy burdened because petitioners are re-

quired to prove a taking claim as it applies to a “particular allotment

or interest.” 25 U.S.C. 331 note (Section 6(d)) (Supp. V 1987). This is

the burden that any plaintiff with a taking claim would have.

12

recognized that they were not “proven entitlements” and

that many of them rested on “questionable legal grounds.”

131 Cong. Rec. 36,233 (1985).

Notwithstanding the speculative nature of the claims

against third parties, Congress authorized compensation

for all allottees and heirs dispossessed by the transactions

described in Section 4(a) of WELSA. It provided for pay-

ment for the value of the lands when a claimant was dis-

possessed, with compound interest from the date the prop-

erty left Indian possession, obviating any consideration of

whether the transaction which led to the dispossession

was, in fact, legally valid. No discounting is to be made for

the litigative risk, expense, or the speculative nature of the

causes of action for property or damages against third par-

ties. In the past, compensatory damages for a lost allot-

ment have been viewed as providing the full monetary

equivalent, when an award rests on the land’s value at the

time it was lost with interest at a reasonable rate. See

United States v. Creek Nation, 295 U.S. 103, 109-111

(1935). Here, the ailottees or their heirs will receive com-

pensation for the lost property, plus the loss of use value

of the monetary equivalent in interest.®

In sum, given the complex and doubtful nature of the

claims, Congress’s judgment to provide for administra-

tively determined compensation must—on its face—be

deemed a valid effort to provide just compensation. See,

e.g., United States v. Sioux Nation, 448 U.S. 371, 416-417

§ Claimants receive 5% compound interest. 25 U.S.C. 331 note

(Section 8(a)) (Supp. V 1987). The same interest rate without com-

pounding has been used in other Indian claims (see United States v.

Creek Nation, 295 U.S. 103, 111-112 (1935)), and it is certainly a fair

equivalent interest rate since the rates of interest even in the 1960's

were often below 5%. See, e.g., Pitcairn v. United States, 547 F.2d

1106, 1120-1121 (Ct. Cl. 1976).

~ nen arene mane sete

13

(1980). That effort is underscored by the availability of a

Tucker Act remedy. The Constitution requires no more.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General*

RICHARD B. STEWART

Assistant Attorney General

ROBERT L. KLARQUIST

EDWARD J. PASSARELLI

Attorneys

DECEMBER 1989

* The Solicitor General is disqualified in this case.

vy US. GOVERNMENT PRINTING OFFICE: 1989—262-203/00661