Petition for Writ of Certiorari — Sisseton-Wahpeton Sioux Tribe v. United States

Gapreme Gourt, Us

fy \ FILED

,

\/ 96 589 CT 15 19%

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

.

SISSETON-WAHPETON SIOUX TRIBE, of the Lake

Traverse Indian Reservation, North Dakota and South

Dakota; DEVILS LAKE SIOUX TRIBE, of the Devils

Lake Sioux Indian Reservation, North Dakota;

SISSETON-WAHPETON SIOUX COUNCIL, of the

Assiniboine and Sioux Tribes of the

Fort Peck Indian Reservation, Montana,

Petitioners,

UNITED STATES OF AMERICA; MANUEL LUJAN,

JR., individually and in his capacity as Secretary of

the Interior; NICHOLAS BRADY, individually and in

his capacity as Secretary of the Treasury,

Respondents.

.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

PETITION FOR WRIT OF CERTIORARI

°

BERTRAM E. Hirscw

81-33 258 Street

Floral Park, New York 11004

(718) 347-3022

Counsel for Petitioners

October 14, 1996

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Secretary of the Interior,

having made a commitment to the Congress

to employ a particular standard in

determining eligibility to share in a

judgment fund awarded to the petitioners,

may change the eligibility standard after

Congress, in reliance on the Secretary's

commitment, has enacted a judgment fund

distribution plan under which 96.7% of

those eligible to share pursuant to the

Secretary's post-enactment standard are

not eligible distributees.

Does the Secretary’s change of the

eligibility standard and enlargement of

the class of beneficiaries violate the

distribution Act, petitioners’ right to

the due process of the law, and the

Secretary’s trust responsibility to the

petitioners.

ii

TABLE OF CONTENTS

Page

Opinions BOsOe s.c.6 os 5 40S HERS CEHEK RE 1

SUP LOGLCCLOs 6.65 baa RE CEOs 1

Constitutional and Statutory

Provisions Involved.............. 1

Statement OF CHO CABG. cise cuvdevvess 1

Reasons for Granting the Writ..... 4

The case raises important

questions of federal law......... 4

I. The court of appeals’ decision

expands the discretion of the

Secretary of the Interior in

conflict with the express

terms of the 1972 Act and an

applicable decision of this

COUEC. 6's s4K545 2598s Rte ce 4

II. The court of appeals’ decision

ratifies the Secretary of the

Interior’s implementation of

the 1972 Act, an implementa-

tion that violates petitioners’

right to the due process of

Che 200 0 ib si vise keke eer eae 8

CORGCILVOLORs Ao sh woe ee eee kh 12

Appendix

Opinion of the United States

Court of Appeals for the

Biwtt CLtGRiS: b oikaietay eeu APP. 1

iii

Opinion of the United States

District Court for the District

INN 2 elk ak inks ts bre Ohh Glo ec APP. 8

Constitutional provisions and

SCASUCES SVGLGOE « oc c.nce t oewace APP. 21

TABLE OF AUTHORITIES

CASES:

Chippewa Indians v. United States,

2 OL SN ge 0S > 2 RR eae

Delaware Tribal Business Committee

v. Weeks, 430 U.S. 73 (1977).....

Littlewolf v. Lujan,

877 F.2d 1058 (D.C. Cir. 1989)..9

Morrison v. Work,

Meee Uae EE CRUE, os cco veasecse

Morton v. Ruiz,

ae CROPE Es a os en we be cas

Seminole Nation v. United States,

MM Oe ee errr

Sisseton and Wahpeton Bands or

Tribes v. United States,

18 Ind.Cl.Comm. 526-a (1967).....

Sisseton-Wahpeton Sioux Tribe

v. United States, 686 F.Supp.

831 (D.Mont. 1988), aff'd.,

895 F.2d 588 (9th Cir. 1990),

cert. den., 498 U.S. 824 (1990).

Page

ll

iv

Sisseton-Wahpeton Sioux Tribe |

v. United States, 895 F.2d 588

(9th Cir. 1990), cert. den.,

3 ee ee ee oe. ee ee re oa =

Sisseton-Wahpeton Sioux Tribe

v. United States, 90 F.3d 351

CeCe: Ge CE 4 ck bass wae hes » WE

United States v. Dann,

G7Fe Was. ae Tees 6a eee Kea eee ee 9

CONSTITUTION AND STATUTES:

United States Constitution

FLECR AMOMEORE . 6 bcd bene he es : Sh ae

Act of June 19, 1968,

OS BEAR « . AOe cia teks alee ets bk oe 2

Sisseton and Wahpeton Mississippi

Sioux Tribe Distribution of

Judgment Fund Act of October 25,

3974, BS Blatt. LEGG E70. 6 ise aes 1

25 U.S.C. §1300d-3(b)

ee es Vee a, 8, By 4 oe ee aes 48

25 U.S.C. §$13000-<d€(a) ....2.. 2, id

2S U.5.0. -BiSRO(h) «vce 6a caw cess 1

46 U.S.0. $13SR ceive Seater’. 1

26 U.5.C. §$2366(G) (2)... oes 1

ae VU.G.C.. $LEGEs ecw an eres 1

RO Uses. FARRER Cee ie eek ca Che 1

MISCELLANEOUS :

H.Rep.No.

2d Sess.

S.Rep.No.

2d Sess.

S.Rep.No.

lst Sess.

91-1150, 91st Cong.

fees es PT a a ee kk

91-1339, 91st Cong.

(Vetoner 13,3970)... 6.6%

92-144, 92nd Cong.

BE ae ys 3 Sa

118 Cong. Rec. 36040

PRONG Ss oP Se a oo

F. Cohen, Handbook of Federal

BnGtem Lee 11902 66, }. uo sk. nc.

1

OPINIONS BELOW

The opinion of the court of appeals

(APP. 1-7) is reported at 90 F.3d 351. The

opinion of the district court (APP. 8-20)

is unreported.

JURISDICTION

The judgment of the court of appeals

was entered on July 15, 1996. The

jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. United States Constitution, Fifth

Amendment, Due Process Clause.

2. 25 U.S.C. § 1300d et seq.

(selected provisions)

Due to their length, the constitutional

and statutory provisions involved are set

out in the Appendix (APP. 21-23).

STATEMENT OF THE CASE

Jurisdiction in the district court was

based on 28 U.S.C. §§ 1331, 1346(a)(2),

1361 and 1362.

In this case, three Indian tribes seek

to block the distribution of more than $13

million of judgment funds awarded to them,

2

to persons whom petitioners claim have no

statutory, constitutional or other legal

entitlement to the monies.

Based on a settlement agreement

between the petitioners and the United

States, the Indian Claims Commission, in

1967, entered judgment against the United

States and in favor of the petitioners for

nearly $6 million in additional

compensation for the taking of some 27

million acres of land in an 1830 and an

1851 treaty. Sisseton and Wahpeton Bands

or Tribes, et al. v. United States, 18

I.C.C. 526-a (1967). See also, Sisseton-

Wahpeton Sioux Tribe, et al. v. United

States, et al., 686 F.Supp. 831, 833 (D.

Mont. 1988), aff'd., 895 F.2d 588 (9th

Cit. 1996), cert. - Gem... £298: 2.6.--626

(1990). In 1968, Congress appropriated

money to satisfy this judgment. Act of

June 19, 1968, 82 Stat. 239.

In 1972, Congress apportioned 25.0225%

of the monies awarded to petitioners "to

Sisseton and Wahpeton Mississippi Sioux

Tribe lineal descendants, i.e., persons

who are not eligible for membership in any

of the plaintiff tribes, but who can trace

their lineal ancestry to someone who once

was a tribal member. 25 U.S.C. §§ 1300d-

3(b), 1300d-4(a)." Sisseton-Wahpeton Sioux

Tribe, et al. v. United States, et al.,

Supra, 686 F.Supp. at 833. The "lineal

descendants’" portion of the petitioners’

judgment is undistributed and remains in

3

the United States Treasury. With

accumulated interest, this portion is now

more than $13 million.

50... £987, the tribes brought’ this

action to challenge that part of the 1972

distribution Act which directs 4

distribution to lineal descendants. In

affirming the dismissal of petitioners’

claims on statute of limitation grounds,

the court of appeals noted that "only if

the number of lineal descendants were

exceptionally small might the Tribes claim

that the distribution plan ultimately is

irrational" and "unfair" in violation of

the Due Process Clause of the Fifth

Amendment. Sisseton-Wahpeton Sioux Tribe,

et al. v. United States, et al., 895 F.2d

588, 594 (9th Cir. 1990), cert. den., 498

U.S. 824 (1990).

On remand, petitioners amended their

complaint to allege that the statutory

distribution plan is irrational because it

allocated 25% of the judgment to an

"exceptionally small" group.

Petitioners maintained that the 1972

distribution Act required persons claiming

Sisseton and Wahpeton Mississippi Sioux

Tribe ancestry to trace their ancestry to

a lineal ancestor who was a member of that

aboriginal tribe, an entity that ceased to

ONGC... 30 i862. 90 Fisa: at: 354. it ie

undisputed, that no more than 65 of the

1,969 persons approved by the Secretary of

4

the Interior as “lineal descendants"

identified such an ancestor. Most of the

others traced ancestry to a person born in

the twentieth century.

The court of appeals rejected

petitioners’ argument, concluding that the

Secretary of the Interior had reasonably

exercised his discretion under the 1972

distribution Act to approve as lineal

descendants anyone “whose names or the

name of a lineal ancestor appears on any

available records and rolls acceptable to

the Secretary." Id., quoting 25 U.S.C. §

1300d-3(b).

REASONS FOR GRANTING THE WRIT

THE CASE RAISES IMPORTANT

QUESTIONS OF FEDERAL LAW

I. The court of appeals’ decision expands

the discretion of the Secretary of the

Interior in conflict with the express

terms of the 1972 # Act and an

applicable decision of this Court.

The 1972 distribution Act directs the

Secretary of the Interior to "prepare a

roll of the lineal descendants of the

Sisseton and Wahpeton Mississippi Sioux

Tribe...whose names or the name or a

lineal ancestor appears on any available

records and rolls available to the

Secretary...." 25 U.S.C. § 1300d-3(b). The

5

unambiguous operative command of § the

statute is to identify "lineal descendants

of the Sisseton and Wahpeton Mississippi

Sioux Tribe." Instead of focussing on

this, the court of appeals ratified the

Secretary's "lineal descendancy" list

because it concluded that, under the

Statute, the Secretary had the discretion

to use various twentieth century rolls in

preparing the lineal descendancy roll.!

The authorization in the statute for

the Secretary to use "any available

records and rolls" serves but one

substantive purpose, i.e., to identify

"lineal descendants of the Sisseton and

Wahpeton Mississippi Sioux Tribe." The

records and rolls are only a tool to

accomplish this purpose.

It is virtually axiomatic that to

qualify as a lineal descendant of the

Sisseton and Wahpeton Mississippi Sioux

Tribe one must identify a Sisseton and

Wahpeton Mississippi Sioux Tribe lineal

ancestor. Since this aboriginal entity

ceased to exist in 1862, to qualify as a

lineal descendant ancestry must be traced

to a person who was a member of that

: Petitioners referred the courts

below to various nineteenth century

annuity and census rolls of the Sisseton

and Wahpeton Sioux contemporaneous with

the existence of the aboriginal tribe. The

Secretary did not use any of these.

a air 7. ee ” ea ee Dep ne eee

6

aboriginal entity. Otherwise the very

purpose of the statute is undermined.

Therefore, the Secretary does not have the

discretion to use records and rolls that

fail to establish lineai descendancy from |

an ancestor who was a member of the

aboriginal entity. The court of appeals’

contrary conclusion ignores the express

command of the statute.

This conclusion is not only dictated

by the unambiguous language of § 1300d-

3(b) but by the representations made by

the Secretary to the Congress in

connection with enactment of the 1972

distribution Act and the action taken by

Congress in reliance on those |

representations. The Secretary repeatedly

assured the Congress that "the individual,

to participate [in the distribution], must

be able to trace lineal descent from

members of the aboriginal bands." S.Rep.

No. 92-144. 92nd Cong. lst Sess. 5 (June

4, 1971). See also, H.Rep.No. 91-1150,

9lst Cong. 2d Sess. 7-8 (June 4, 1970) and

S.Rep.No. 91-1339, 9lst Cong. 2d Sess. 6-8

(October 13, 1970) where the Secretary

informed Congress that the distribution

would be made only to "descendants who can

trace their lineal ancestry to a member of

the ... [aboriginal] Sisseton-Wahpeton

Bands."

Congress enacted the 1972 distribution

Act in reliance on these representations.

Not only was the Secretary’s letter

ee

5

included in the Senate Report, the

Committee on Interior and Insular Affairs

emphasized that the distribution to lineal

descendants would be restricted to persons

having "proof of lineal descendancy with

the aboriginal band." S.Rep.No. 92-144,

Supra, at 3. Similarly, when the House

considered the measure, Wayne Aspinall,

Chairman of the Committee on Interior and

Insular Affairs, informed the House that

to participate in the distribution,

"lineal descendants" must “show that they

are direct lineal descendants of a member

of the aboriginal tribe." 118 Cong.Rec.

36040 (October 13, 1972).

Having made clear to the Congress that

"any available records and rolls" would be

used only to verify that a putative lineal

descendant had an identifiable lineal

ancestor who was a member of the

aboriginal Sisseton and Wahpeton

Mississippi Sioux Tribe, the Secretary is

required to adhere to this standard.

Morton v. Ruiz, 415 U.S. 199 (1974) (where

Congress has enacted legislation based on

representations made by the Secretary,

these representations, and not a later

interpretation of the statute by the

Secretary, are the basis of congressional

intent, 415 U.S. at 229-230, and any

action by the Secretary inconsistent with

such representations is unfair and

violates the Government's trust

obligations to Indian tribes. 415 U.S. at

236-237).

ef —<—

NE ne nN rere

8

The court of appeals’ conclusion that

the Secretary has the discretion to

deviate from this standard misconstrues

the statute, unconstitutionally endows the

Secretary with legislative powers, i.e.,

the power to change the class of

distributees to whom Congress restricted

the distribution, violates the Secretary’s

trust obligations to the petitioners, and,

by allowing the Secretary to change the

congressionally - defined class of

distributees, denies the due process of

the law to petitioners, the statute’s

beneficiaries.

II. The court of appeals’ decision

ratifies the Secretary of the

Interior’s implementation of the 1972

Act, an implementation that violates

petitioners’ right to the due process

of the law.

As the court of appeals observed,

"Congress is not at liberty to disburse

Indian Claims Commission judgment funds to

anyone it chooses." Sisseton-Wahpeton

Sioux Tribe v. United States, supra, 895

F.2d at 595. The distribution plan should

be disturbed if it is not "'tied

rationally to the fulfillment of Congress’

unique obligation’" to the tribe. Delaware

Tribal Business Committee v. Weeks, 430

U.S. 73, 84-85 (1977) (citation omitted).

Accord, Sisseton-Wahpeton Sioux Tribe v.

United States, supra, 895 F.2d at 590 n.

1.

9

Measuring § 1300d-3(b), as implemented

by the Secretary, against this due process

Standard, for judging the

constitutionality of a congressional plan

for the distribution of an Indian judgment

fund, compels the conclusion that § 1300d-

3(b) is mot tied rationally to the

fulfillment of Congress’ unique obligation

to petitioners.

In order for § 1300d-3(b) to satisfy

the "tied rationally" standard, "the means

chosen to achieve" congressional

objectives must "comport with the

requirements of the Fifth Amendment...."

and must be “reasonably related to ...[the

Government's] trust responsibility" to the

Tribes. Littlewolf v. Lujan, 877 F.2d

1058, 1064 (D.C. Cir. 1989); F. Cohen,

Handbook of Federal Indian Law 219 (1982

ed.).

Any analysis of the means chosen to

achieve congressional ends must be begin

with Congress’ "stated justification" for

the statute. Littlewolf v. Lujan, supra,

877 F.2d at 1064. Here, the stated

objective or justification for § 1300d-

3(b) was, as the district court

comprehended, to provide "compensation [to

lineal descendants of the Sisseton and

Wahpeton Mississippi Sioux Tribe]...[for]

the Treaty violations visited upon their

ancestors." APP. 19. Implicit in this

objective is the converse, viz., that

compensation is not to be provided to any

10

person who is not a Sisseton and Wahpeton

Mississippi Sioux Tribe lineal descendant,

i.e., any person who has not identified an

ancestor who was a victim of the treaty

violations for which the judgment funds

are intended as compensation. Payment to

such persons would defeat the express

congressional objective of § 1300d-3(b)

and, accordingly, fails the "tied

rationally" test by nullifying the "unique

obligation" of the United States to

compensate only proven descendants of

members of the Sisseton and Wahpeton

Mississippi Sioux Tribe.

The irrationality of the distribution

plan, as implemented, is starkly

underscored by the undisputed fact that

only an “exceptionally small" number of

the "lineal descendants" approved by the

Secretary to share in the distribution are

actually qualified to participate in any

distribution under § 1300d-3(b). If these

65 persons were permitted to share the

25.0225% of the judgment fund set aside |

for "[{aJll other Sisseton and Wahpeton |

Sioux," 25 U.S.C. § 1300d-4(a), each would

receive more than 60 times the amount

allocated for the petitioners and their

members, ° a palpably irrational and

2 6This calculation is premised on a

per capita distribution to petitioners’

members of the amounts allocated to the

petitioners.

SS |

ll

"unfair" distribution that is clearly not

tied rationally to the Government’s unique

obligation to the petitioners and,

therefore, violates the Due Process Clause

of the Fifth Amendment.

The Secretary's implementation of the

1972 distribution Act fails the "tied

rationally" test for yet another reason.

The proposed distribution to the § 1300d-

3(b) "lineal descendants" is not

“reasonably related to scoot tue

Government’s] trust responsibility" to the

petitioners. Littlewolf v. Lujan, supra,

877 F.2d at 1064. The Government, "as

trustee for the Tribe[s]" is "responsible

for ensuring that" Indian Claims

Commission judgment funds are "put to

productive use and ultimately distributed

in a manner consistent with the best

interests of the Tribe[s]." United States

v. Dann, 470 U.S. 39, 49-50 (1985). The

"United States, as a fiduciary, is

obligated to" "“ensur[e] that the money

will be applied to the benefit of the

Tribe[s)." Id. at 50 an. 13. Accord,

Chippewa Indians v. United States, 301

U.S. 358, 375-376 (1937); and Morrison v.

Work, 266 U.S. 481, 485 (1925) (both

holding that in the exercise of its trust

responsibility with respect to the

management and disposition of tribal

property, Congress must "promote the

welfare" of the tribe).

In carrying out its trust

12

responsibilities, the Government ’s

"conduct as disclosed in the acts of those

who represent it in dealings with the

Indians, should...be judged by the most

exacting fiduciary standards." Seminole

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

296-297 (1942). Here, the Secretary of the

Interior promised both the Congress and

the Tribes that the judgment funds would

be distributed only to persons who could

prove that they had an ancestor who was a

member of the Sisseton and Wahpeton

Mississippi Sioux Tribe. The Secretary’s

decision to distribute 96.7% of the

funds, allocated to the § 1300d-3(b) class

of lineal descendants, to 1,904 persons

who have not proven such ancestry neither

"promote[s] the welfare" of or is in "the

best interests of the Tribe({s]" and,

therefore, is a clear breach of the

Secretary's trust responsibility to the

Tribes and their members.

CONCLUSION

For the foregoing reasons this Court

should issue a writ of certiorari to

review the decision of the United States

Court of Appeals for the Ninth Circuit.

13

October 14, 1996

Respectfully submitted,

BERTRAM E. HIRSCH

81-33 258 Street

Floral Park, N.Y. 11004

(718) 347-3022

Counsel for Petitioners

APPENDIX

Age. J

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

cies

SISSETON-WAHPETON Sioux TRIBE,

of the Lake Traverse Indian

Reservation, North Dakota and

South Dakota, individually and in

its parens patriae capacity on

behalf of its members; Devits

LAKE Sioux Trise of the Devils

Lake Sioux (Fort Totten) Indian

Reservation, North Dakota,

individually and in its parens

patriae capacity on behalf of its

members; SisseToN-WAHPETON

Sioux Councu., of the Assiniboine No. 95-35135

and Sioux Tribes of the Fort Peck ( D.C. No.

Indian Reservation, Montana, CV-87-00095-PGH

individually and in its parens OPINION

patriae capacity on behalf of its

members,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA:

Manuar Luan, Jr., individually

and in his capacity as Secretary of

the Interior; NicHoLas Brapy,

individually and in his Capacity as

Secretary of the Treasury,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana

Paul G. Hatfield, District Judge, Presiding

APP. 2

Argued and Submitted

June 6, 1996—Seattle, Washington

Filed July 15, 1996

Before: James R. Browning, Eugene A. Wright, and

Thomas G. Nelson, Circuit Judges.

Per Curiam

OPINION

PER CURIAM:

I.

In 1987, three Native-American Sioux Tribes filed this suit

contending Congress should not have allocated 25% of an

Indian Claims Act judgment fund to nonmember lineal

descendants of the aggrieved aboriginal tribe, which had dis-

persed in the 1860s. The plaintiff Tribes asserted eight claims

for relief, including due process, unconstitutional taking,

breach of contract, and breach of the 1968 Appropriations

Act.

The district court dismissed the case on the ground that all

of the claims were barred by the six-year statute of limitations

(28 U.S.C. § 2401); we affirmed, with one exception.

Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d

588, 591-92 (9th Cir. 1990). Because the Secretary of the

Interior did not compile the list of nonmember lineal descen-

dants of the aboriginal tribe until 1987, the plaintiff Tribes did

not know the number of persons who would share in the 25%

of the judgment allocated to nonmember lineal descendants.

and plaintiffs’ due process claim based upon the disproportion

APP. 3

between the number of nonmember lineal descendants and the

share of the judgment allocated to this group did not accrue

until 1987. We noted, however, that “only if the number of

lineal descendants were exceptionally small might the Tribes

claim that the distribution plan ultimately is irrational.” Jd. at

594.

On remand, the plaintiff Tribes amended their complaint to

allege, inter alia, that the statutory distribution plan was irra-

tional because it allocated 25% of the judgment to an

“exceptionally small” group. The district court granted sum-

mary judgment for the government, and the plaintiff Tribes

appeal.

According to the plaintiff Tribes, only 65 of the 1,969 per-

sons on the Secretary's list have proven they are in fact lineal

descendants of the aboriginal tribe. The plaintiff Tribes argue

that 65 persons is an “exceptionally small” group.

The plaintiff Tribes reduce the Secretary’s list from 1.969

to 65 by applying a strict standard of proof to establish a non-

member is a lineal descendant of the aggrieved aboriginal

tribe. They contend nonmembers must identify an ancestor

who was a member of the aboriginal tribe in 1862, when the

tribe dispersed. The plaintiff Tribes argue that because the

aboriginal tribe ceased to exist after 1862, every lineal

descendant is necessarily related to an individual who was a

member of the aboriginal tribe prior to 1862.

The meaning of “lineal descendant” is not subject to dis-

pute, but the parties disagree as to the proof required to estab-

lish lineal descendance from a member of the aboriginal tribe.

APP. 4

The Secretary did not require nonmembers to identify an

ancestor who was alive in 1862, accepting post-1862 lists as

adequate proof of lineal descent.

We review the Secretary’s interpretation of the Act de

novo, Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996), and

first determine “whether Congress has directly spoken to the

precise question at issue.” Chevron v. Natural Resources

Defense Council, 467 U.S. 837, 842 (1984). If “the statute is

clear and unambiguous that is the end of the matter.” Sullivan

v. Stroop, 496 U.S. 478, 482 (1990) (quotations omitted).

{1] We agree with the Secretary that the Act unambigu-

ously leaves the standard of proof to the Secretary’s discre-

tion, directing the Secretary to prepare a list of persons

“whose names or the name of a lineal ancestor appears on any

available records and rolls acceptable to the Secretary.” 25

U.S.C. §§ 1300d-3(b); 1300d-4(a) (emphasis added). As the

government notes, this language does not suggest the appli-

cant must identify an ancestor alive before 1862. In fact, the

Act explicitly allows the Secretary to include nonmembers

who have not identified an ancestor alive before 1862, as long

as the name of the nonmember or of a lineal ancestor is on a

list acceptable to the Secretary.

[2] Even if the Act were not clear on its face, we would

affirm. The legislative history does not discuss the standard of

proof, and the Secretary’s decision to adopt an inclusive stan-

dard of proof is unquestionably reasonable. Bona fide lineal

descendants might have difficulty identifying ancestors alive

in 1862, particularly since the aboriginal tribe scattered. The

Secretary's standard ensures that more bona fide lineal

descendants will be compensated, promoting Congress’s goal

of compensating all descendants of the aboriginal tribe. See

Aluminum Co. of America v. Central Lincoin Peoples’ Utility

District, 467 U.S. 380, 389 (1984) (“[T]o uphold [an agency’s

construction of a statute] we need not find that [its] construc-

APP. 5

tion is the only reasonable one, or even that it is the result we

would have reached had the question arisen in the first

instance in judicial proceedings. . .. We need only conclude

that it is a reasonable interpretation of the relevant

provisions.”).'

[3] Although the 1,969 nonmembers will each receive

$746, while tribal members will receive an average of $372,

the statutory allocation is not irrational and does not violate

due process. Congress specifically rejected a proposal to dis-

tribute the judgment fund on an equal, per capita basis, choos-

ing instead to allocate lump sum shares to four groups based

on the 1909 McLaughlin Annuity roll. When Congress acted,

no one knew the precise number of persons in each category.

As the plaintiff Tribes themselves argued, the 1909 roll was

the most inclusive list:

The tribes maintain that the 1909 roll, which con-

tains no blood quantum restriction, is the roll nearest

‘The plaintiff Tribes have not demonstrated that the Secretary's deci-

sion to use post-1862 rolls is irrational or has led to an arbitrary list. The

Secretary concluded that nonmembers were entitled to share in the fund

if either they or an ancestor were on any one of the following lists, among

others: 1909 Sisseton and Wahpeton Annuity Roll, 1932 Sisseton and

Wahpeton Annuity Roll, 1940 Sisseton-Wahpeton Base Roll, 1944 Devils

Lake Base Roll, 1960 Assiniboine-Sioux Tribal Roll, 1974 Sisseton-

Wahpeton Payment Roll, 1974 Devils Lake Payment Roll, 1979 Fort Peck

Sisseton-Wahpeton Payment Roll. While these lists may contain individu-

als who were not, in fact, lineal descendants of the aboriginal tribe, the

plaintiff Tribes have not shown or even argued that they are so inaccurate

that the Secretary's decision to use them was irrauonal.

APP. 6

in time to the taking of the land from the parent

bands, particularly with respect to the . . . award

based on an 1852 cession, and, in view of its all-

inclusive nature, the single roll best suited to deter-

mine the apportionment of the funds.

H.R. 92-1369 at 10 (emphasis added).

[4] The plaintiff Tribes argue the distribution scheme vio-

lates equal protection because tribal members and nonmem-

bers receive different shares, and that this claim also remains

open because the plaintiff Tribes did not know the nonmem-

bers would receive a higher per capita award until the Secre-

tary compiled the list of nonmembers in 1987. When

Congress rejected a per capita distribution and decided instead

to distribute the fund in lump sums to the various groups

based on the 1909 roll, the possibility of unequal distribution

per capita was obvious. If the plaintiff Tribes believed non-

members and members should receive equal individual

shares, they should have challenged the distribution scheme

long before they filed this suit. Instead, after public delibera-

tion, the plaintiff Tribes approved the plan to allocate a lump

sum to each group based on the 1909 roll. Sisseton-Wahpeton

I, 895 F.2d at 591-92.

IV.

[5] The plaintiff Tribes argue that because some persons on

the Secretary’s list might not, in fact, be bona fide lineal

descendants, the distribution plan constitutes a taking from

the plaintiff Tribes compensable under the Fifth Amendment.

We rejected this argument in Sisseton-Wahpeton I, noting that

the 25% share belongs to bona fide nonmember lineal descen-

dants, not the plaintiff Tribes. The plaintiff Tribes will receive

75% of the judgment fund no matter how many nonmembers

are identified. Sisseton-Wahpeton I, 895 F.2d at 594.

;

:

APP. 7

{6] The plaintiff Tribes allege the district court erred in

denying their motion to amend the complaint to add due pro-

cess and equal protection claims. We “review denial of leave

to amend for abuse of discretion, ‘but such denial is strictly

reviewed in light of the strong policy permitting

amendment.’ ” Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798

(9th Cir. 1991) (quoting Moore v. Kayport Package Express.

885 F.2d 531, 537 (9th Cir. 1989)). However, “[a]bsent a def-

inite and firm conviction that the district court committed

clear error of judgment, we will not disturb the district court’s

decision.” Allen v. City of Beverly Hills, 911 F.2d 367, 373

(9th Cir. 1990). “The district court’s discretion to deny leave

to amend is particularly broad where plaintiff has previously

amended the complaint.” /d. (quoting Ascon Properties, Inc.

v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).

[7] We consider “(1) bad faith, (2) undue delay, (3) preju-

dice to the opposing party, (4) futility of amendment, and (5)

whether plaintiff has previously amended his complaint.” Jd.

See also United States v. Pend Oreille Pub. Util. Dist. No. 1,

926 F.2d 1502, 1511 (9th Cir. 1991).

[8] The fourth and fifth factors, futility and prior amend-

ment, are dispositive in this case. The plaintiff Tribes concede

the proposed claim is “similar to the claims [already] asserted

in the second amended complaint.” It adds nothing to the

claims already at issue in this appeal. Because the proposed

claim would be redundant and futile, the district court did not

err in denying leave to amend. It is time for this litigation to

end.

AFFIRMED.

APP. 8

FILED

‘94 SEP PM 3 44

LOU ALEKSICH, JR., CLERK

BY CAROL A. DAHLEY

DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

SISSETON-WAHPETON ) FILED, ENTERED

SIOUX TRIBE of the Lake AND NOTED IN

Traverse Indian Reser- ) CIVIL DOCKET

vation, North Dakota Sept. 28, 1994

and South Dakota, indi- )

vidually and in its LOU ALEKSICH,

parens patriae capacity ) JR., CLERK

on behalf of its members;

DEVILS LAKE SIOUX TRIBE ) BY CAROL A.

of the Devils Lake Dahley

Sioux (Fort Totten) ) Deputy

Indian Reservation, North

Dakota individually and )

in its parens patriae

capacity on behalf of )

its members; SISSETON-

WAHPETON SIOUX COUNCIL )

of the Assiniboine and

Sioux Tribes of the )

Fort Peck Indian

Reservation, Montana, )

individually and in its

parens patriae capacity )

on behalf of its

members, )

Plaintiffs, ) No. CV-87-095-GF

vs. )

a et

APP. 9

UNITED STATES OF ) AMENDED

AMERICA, MANUEL LUJAN, MEMORANDUM AND

individually and in his ) ORDER

capacity as Secretary of

the Interior; NICHOLAS )

BRADY, individually and

in his capacity as )

Secretary of the

Treasury, )

Defendants. )

FILED, ENTERED IN

CIVIL JUDGMENT BOOK

VOLUME 26, PAGE 42

APP. 10

The Sisseton-Wahpeton Sioux Tribe, the

Devils Lake Sioux Tribe, and the Sisseton-

Wahpeton Sioux Council of the Assiniboine

and Sioux Tribes ("The Tribes") instituted

the present action challenging the 1972

law that established the plan for

distribution of a judgment entered by the

Indian Claims Commission in satisfaction

of a compromise settlement effected

between the Tribes and the United States.

25 vV.§.C. §$§ 1300€-3, i300€-4 ("1972

Distribution aCe}; Sisseton-Wahpeton

Bands or Tribes v. VU.S., 18 Ind.Cl.Comm.

526-1 (1967). This court previously

dismissed the action, having concluded it

was time-barred by the six-year statute of

limitations imposed by 28 U.S.C. §

2401(a). Sisseton-Wahpeton Sioux Tribe v.

U.S., 686 F.Supp. 831 (D. Mont. 1988).

This court’s dismissal was affirmed by the

Ninth Circuit Court of Appeals. Sisseton-

Wahpeton Sioux Tribe v. U.S., 895 F.2d 588

(9th Cir. 1990), cert. denied, i111 §.Ct.

75 (1990).

The facts underlying this action are

not in dispute and are succinctly

summarized in the opinion of the Ninth

Circuit. 895 F. 2d at 590. For purposes of

the present discussion, it is unnecessary

to detail those facts. Of import to the

present analysis is the following

observation made by the Ninth Circuit:

ae

APP. 11

The Tribes also argue that their

claims are based in part on the

number of persons certified as

‘lineal descendants’, a fact

which they could not know until

the roll was completed. They

complain that the per capita

award will be lower for tribal

members than for non-members.

This indeed may be unfair. How-

ever, only if the number of

lineal descendants were excep-

tionally small might the Tribes

claim that the distribution plan

ultimately is irrational. This

does not appear to be the claim

they make. We do not, however,

rule out the Tribes amending the

complaint to state facts

supporting such a claim.

895 F.2d at 594.

Consistent with the foregoing

intimation, the Tribes were allowed to

file an amended complaint for the purpose

of stating facts to support a claim that

the plan of distribution embodied in the

1972 Distribution Act is irrational based

upon the "exceptionally small" number of

lineal descendants to whom a substantial

portion of the judgment funds, i.e., 25%

APP. 12

will be distributed. The Tribes now move

for summary judgment pursuant to

Fed.R.Civ.P. 56. The Tribes’ motion for

summary judgment is partial in nature,

seeking a determination that the number of

lineal descendants entitled to 3

proportionate share of the judgment fund

is "exceptionally small".! The Secretary

of the Interior, in turn, has filed a

cross-motion for summary judgment.

The 1972 Distribution Act apportioned

the judgment fund "on the basis of

Reservation residence and other residence

as shown on the 1909 McLaughlin Annuity

The Tribes predicate their claims

for relief upon the assertion that

a distribution of the judgment

funds to an irrationelly small

number of lineal descendants would

operate to deprive them of the

rights secured them by the due

process and just compensation

clauses of the fifth amendment to

the federal Constitution. In

presenting their motion for

partial summary judgment to the

court, The Tribes expressly advise

the court they are not, at this

juncture, seeking a determination

upon the legal merit of their

claims.

ee ey

APP. 13

Roll" as follows: 22% to Devils Lake Sioux

of North Dakota, 43% to Sisseton-Wahpeton

Sioux of South Dakota, 10% to Assiniboine

and Sioux Tribes of the Fort Peck

Reservation, Montana, 25% to all other

Sisseton and Wahpeton Sioux. 25 U.S.C. §

1300d-4(a). The Act further provided in

pertinent part as follows:

The Secretary of the Interior

shall prepare a roll of the

lineal descendants of the Sis-

seton and Wahpeton Mississippi

Sioux Tribe who were born on or

prior to and are living on the

date of this Act whose names or

the names of (sic) lineal ancestor

appears on any available records

and rolls acceptable to the

Secretary, and who are not members

of any of the organized groups

listed in subsection (a).

25 U.S.C. § 1300d-3(b).

The roll of lineal descendants

prepared by the Secretary of the Interior,

and completed in April of 1987, lists

1,969 individuals. In order to qualify for

inclusion on the distribution roll, the

claimant needed to establish that he or

she was a lineal descendant of the

APP. 14

Sisseton and Wahpeton Mississippi Sioux

Tribe, was born on or prior to and living

on October 25, 1972, and was not a member

of any of the organized groups listed in

25 U.S.C. § 1300d-3(a).

Ms. Karen Joseph, Tribal Enrollment

Specialist for the Area Director, Bureau

of Indian Affairs, Aberdeen, South Dakota,

has filed an affidavit establishing that

the individuals named on the roll are

descendants by blood of members named in

the following membership rolls or payment

rolls:

(1) 1909 Sisseton and Wahpeton

annuity roll;

(2) 1932 Sisseton and Wahpeton

annuity roll;

(3) January 1, 1940, Sisseton-

Wahpeton base roll;

(4) January 1, 1944, Devils Lake

base roll;

(5) October 1, 1960, Assiniboine-

Sioux tribal roll;

(6) April 18, 1974, Sisseton-

Wahpeton payment roll;

(7) December 16, 1974, Devils Lake

payment roll;

(8) May 1, 1979, Fort Peck Sisseton-

Wahpeton payment roll.

APP. 15

Ms. Joseph also states the following

source documents were used to determine

eligibility if a particular claimant’s

ancestor was not named on any of the

foregoing rolls: the Sisseton-Wahpeton,

Devils Lake and Fort Peck Allotment

schedules, probate records and Roll Number

507, microfilm publication for the census

rolls dated 1886-91, 1893, 1895, 1897-98

of the Sisseton and Wahpeton Sioux

Indians.

The Tribes do not suggest that the

number of individuals meeting the

delineated criteria, i.e., 1,969, is not

so exceptionally small as to render the

distribution scheme irrational. Rather,

The Tribes argue, in essence, that the

requirements for lineal descendancy

adopted by the Secretary are at odds with

the intent of Congress in its enactment of

25 U.S.C. § 1300d-3(b). The Tribes contend

that section 1300d-3(b) must be

interpreted as requiring a claimant to

trace lineal descendancy to an ancestor

who was a member of the _ aboriginal

Sisseton and Wahpeton Mississippi Sioux

Tribe in 1830 or 1851 (the dates of the

Treaties at issue in the proceedings

before the Indian Claims Commission which

resulted in the establishment of the

judgment fund at issue). At the very

APP. 16

least, the Tribes suggest, a claimant must

trace ancestry to a person who was a

member of the aboriginal bands in 1862,

just prior to the "forced dispersal" of

the bands. If section 1300d-3(b) is

interpreted as imposing the former

requirement, no more than 29 individuals

on the current roll would qualify as a

"lineal descendant". If section 1300d-3(b)

is interpreted as imposing the latter

requirement, no more than 168 of the

individuals currently identified on the

roll would qualify as "lineal

descendants". The Secretary asks the court

to reject the construction of section

1300d-3(b) advocated by The Tribes,

characterizing the construction as an

attempt to engraft additional language

into what is clearly an unambiguous

statute.

II.

The court’s task, as in all cases of

statutory construction, is to "give effect

to the will of Congress, and where its

will has been expressed in reasonably

plain terms, that language must ordinarily

be regarded as conclusive." Nagonsott v.

Samuels, __U.S. ‘ , 122 L.Ed.2d 457,

465 (1993), citing, Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 570

APP. 17

(1982). In analyzing the Tribes’

contentions, the court "[aJs always,

[begins] with the language of the statute

and ask([s] whether Congress has spoken on

the subject before [the Court]. ‘If the

intent of Congress is clear, that is the

end of the matter; for the court, as well

as the agency, must give effect to the

unambiguously expressed intent of

Congress.’" Norfolk §& W.R. Train

Dispatchers, ___U.S. ; , 113 L.Ed.2a

95, 106-07 (1991).

Section 1300d-3(b) directs the

Secretary of the Interior to prepare a

roll of lineal descendants who were "born

On or prior to and are living on the date

of this Act whose names or the name of a

lineal ancestor appears on any available

records and rolls acceptable to the

Secretary." (emphasis supplied). This

language is unambiguous and cannot be

construed as requiring the claimant to

establish ancestry to a member of the

Sisseton and Wahpeton Tribes of Sioux

Indians on either the date the underlying

Treaties were signed or on the date of the

"forced dispersal". The court is not free

to construe section 1300d-3(b) in a manner

which is not in accord with the clear

Statement of congressional intent but must

construe the language of the statute

APP. 18

according to its plain meaning. See, FDIC

v. McSweeney, 976 F.2d 532, 537 (9th Cir.

1992), cert. denied, 124 L.Ed.2d 658

(1992). Because the language of section

1300d-3(b) is clear and unambiguous, the

court need not resort to the legislative

history of the statute or other extrinsic

aids. U.S. v. Neville, 985 F.2d 992, 995

(9th Cir. 1993).?

2) 6 The: «Gcourt) remains mindful that

even where the language of the

statute under scrutiny is clear,

resort may be made to the

legislative history attendant to

the statute to determine whether

there is clearly expressed

legislative intention contrary to

the language of the statute. See,

e.g., U.S. v. Guyler, 932 F.2d

1330, 1335 [Sen ‘Cae. 1991).

Review of the legislative history

attendant to the enactment of

section 1300d-3(b) fails to

establish the existence of a

clearly expressed legislative

intention contrary to the express

language of the statute which

would require the court to

"question the strong presumption

that Congress expresses its

intent through the language it

chooses." INS v. Cardoza-Fonseca,

480 U.S. , 423, ; 482, Bcd 42986):

The Tribes simply attempt to

utilize the legislative history

to support their construction of

the statute in a manner that will

assist them in sustaining the

APP. 19

The 1,969 individuals identified on

the roll prepared by the Secretary are,

consistent with the directive of section

1300d-3(b), entitled to share in the

judgment fund. The number is not s0

exceptionally small as to call into

question the rationality of the decision

of Congress to ensure that these lineal

descendants, not associated with any of

The Tribes, receive a portion of the

monies paid in compensation of the Treaty

violations visited upon their ancestors.

Therefore,

IT IS HEREBY ORDERED that The Tribes’

motion for partial summary judgment be,

and the same hereby is DENIED. The motion

for summary judgment presented by

defendants is, in turn, GRANTED and the

preliminary injunction previously entered

in this matter dissolved.

Finally, IT IS HEREBY ORDERED that The

Tribes’ motion requesting leave of court

to amend their complaint is DENIED.

burden of establishing the number

of lineal descendants, as

presently determined by the

Secretary, is "exceptionally

small".

APP. 20

DATED this 28th day of September,

1994.

s/ Paul G. Hatfield

PAUL G. HATFIELD, CHIEF JUDGE

UNITED STATES DISTRICT COURT

App. 21

Constitutional provisions and statutes

involved:

1. Due Process Clause, Fifth Amendment,

United States Constitution.

No person shall...be deprived of life,

liberty, or property, without due process

Of SOW i i és

2. Mississippi Sioux Tribes Distribution

of Judgment Funds Act of October 25,

1972, 25 U.S.C. sec. 1300d et seq.

(selected provisions).

Section 1300d. The funds appropriated

by the Act of June 19, 1968 (82 Stat.

239), to pay compromise judgments to the

Mdewakanton and Wahpakoota Tribe of Sioux

Indians, and the Sisseton and Wahpeton

Tribes of Sioux Indians, in Indian Claims

Commission dockets numbered 142, 359, 360,

361, 362, and 363, together with interest

thereon, after payment of attorney fees

and litigation expenses and the costs of

carrying out the provisions of sections

1300d to 1300d-9 of this title, shall be

distributed as provided in such sections.

Section 1300d-3. (a) The Devils Lake

Sioux Tribe of North Dakota, and the

Sisseton and Wahpeton Sioux Tribe of South

Dakota, shall bring current their

membership rolls of October 25, 1972. The

Assiniboine and Sioux Tribes of the Fort

Peck Reservation, Montana, shall prepare

rolls of their members who are lineal

descendants of the Sisseton and Wahpeton

Mississippi Sioux Tribe, who were born on

Or prior to and are living on October 25,

1972, and who are entitled to enrollment

on their respective membership rolls in

accordance with the applicable rules and

Pe a ae

APP. 22

regulations of the tribe or group

involved, using available records and

rolls at the local agency and area

offices, and any other available records

and rolls. Applications for enrollment

must be filed with each group named in

this section and such rolls shall be

subject to approval of the Secretary of

the Interior. The Secretary's

determination on all applications’ for

enrollment shall be final.

(b) The Secretary of the Interior

shall prepare a roll of the lineal

descendants of the Sisseton and Wahpeton

Mississippi Sioux Tribe who were born on

Or prior to and are living on October 25,

1972, whose names or the name of a lineal

ancestor appears on any available records

and rolls acceptable to the Secretary, and

who are not members of any of the

organized groups listed in subsection (a)

of this section. Applications for

enrollment must be filed with the Area

Director, Bureau of Indian Affairs,

Aberdeen, South Dakota. The Secretary's

determination on all applications’ for

enrollment shall be final.

Section 1300d-4. (a) After deducting

the amount authorized in section 1300d of

this title, the funds derived from the

judgment awarded in Indian Claims

Commission docket numbered 142 and the

one-half remaining from the amount awarded

in docket numbered 359, plus accrued

interest, shall be apportioned on the

basis of reservation residence and other

residence shown on the 1909 McLaughlin

annuity roll, as follows:

—e

APP. 23

Tribe or Group Percentage

Devils Lake Sioux of

21.6892

Sisseton-Wahpeton Sioux of

ee 42.9730

Assiniboine and Sioux Tribe

of the Fort Peck Reserva-

RE a 10.3153

All other Sisseton and

I I 25.0225

(c) The funds allocated to all other

Sisseton and Wahpeton Sioux, as provided

in subsection (a) of this section, shall

be distributed per capita to the persons

enrolled on the roll prepared by the

Secretary pursuant to section 1300d-3(b)

of this title.