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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1011

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1622%3A1. Public record. Not legal advice.