Comments on the Wolfchild Case

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

Second, I have little doubt that the Supreme Court’s decision to grant cert in the Navajo Nation II case, and the recent oral argument demonstrating pretty conclusively that it will reverse the Federal Circuit in that case, influenced this outcome here. Like the Navajo case, there is a strong moral claim that the Wolfchild plaintiffs bring, strong enough perhaps to persuade federal judges that a trust was created. Without going into the merits because I don’t know anything about the trust theories other than reading the opinions, my suspicion is that since the relevant statutes do not have the word “trust” in them (what some circuits have called the “gold standard”), thetrial  court had to buy into a creative theory about the creation of a trust. The Circuit, which we must assume, is knowledgable about what will happen in Navajo II. No more moral claims, says the SCT in Navajo II.

Third, money is the root of bad law. If the Navajos won a few million bucks in the first Peabody Coal case, I bet the United States wouldn’t even appeal. But they won $600 million there, maybe over a billion if you count interest. That gets the government’s (and the Court’s) attention. So you get some really bad law out of the SCT. And this case might not be going the way it is if the Court wasn’t so concerned about money. It’s ironic, because the Wolfchild claim is more about how to split up the pie between tribal people than holding the federal government liable, but the outcome is practically the same.

Finally, the Federal Circuit might be stepping back from its burgeoning status as one of the Supreme Court’s favorite whipping boys. The Circuit is one of the newest Circuits and had not been a court from which many Supreme Court case sprung. It handles a lot of intellectual property and Indian cases, so it didn’t get a lot of attention. But in the last five years or so, those familiar with the Federal Circuit see the Supreme Court as doing a lot of oversight over this Circuit, correcting its errors, and acting as though the Circuit is getting too eccentric.

12 thoughts on “Comments on the Wolfchild Case

  1. Chaska Denny March 11, 2009 / 8:36 am

    The History of the Western Hemisphere, has already proven, that the foreigners have come in, set up their governments, killed all those who have resisted, eliminated and extincted entire cultures, belief systems, without disregard to any kind of human rights to the indigenious natives of the western hemisphere, so is it any wonder HOW their courts, laws and governing bodies will write history, in the western hemisphere?..the rest of the whole world knows what has happened here in the western hemisphere, so is it again any wonder that the majority of nations do not Trust the United States of America, when they have seen and know the Holocaust that has taken place and how the Indigenious natives are ignored, shuffeled around, and Lands stolen by any means from them?….ALL these atrocities have never been addressed and the Righting of this Greatest Wrong, has never been made Right……IF these courts and judges were truly honest and wanting to make decisions based upon true Justice, then the Indigenious peoples wouldnt be in the ugly situation that they are in TODAY….What is needed is a Justice system that includes Indigenious peoples, Laws that are not biased against Indigenious peoples, administrators who will correct the lop sided antics of this greedy government, who kill in the name of Democracy, who steal lands in the name of the Great Spirit, and who re write history to their liking to mask their terrible acts upon the Indigenious peoples of the Western Hemisphere….To date, I have not seen any kind of Righting of these Wrongs, none, so I do believe in this government or these courts, because it is THEIR GOVERNMENT AND THEIR COURTS….

  2. Jennifer Marsette March 11, 2009 / 12:46 pm

    As a Dakota who does not and would not claim to be a loyalist, which in some people’s eyes would be viewed as being a traitor, i am glad this case is over. I have watched for years as so many dakota people from all of the Dakota Tribes have jumped on the band wagon of this case with the promise of wealth and some even thinkning they may have a chance to be a member of the Shakopee Mdewakanton Tribe. It is indeed sad how our Dakota people are willing to sell out once again against their own for the promise of money and think the federal courts would reeally come through for them. Move on with your lives now, the gig is up and quit trying to horn in on what is not yours.

  3. Barbara Duggan March 11, 2009 / 4:48 pm

    I am Sisseton-Wahpeton Dakota Sioux. My great, great Grandfather, Gabriel Renville, the last “Chief” of the Sisseton-Wahpeton Sioux Tribe was just one of my ancestors that were sent to S. Dakota after the 1862 Sioux uprising.

    I have relatives, as many other Sisseton-Wahpeton Sioux that are members of the Shakopee tribe.

    Years ago, when I was told about people trying to enroll on Shakopee and having to prove of ancestry that would “allow” them to get enrolled with the Shakopee Tribe; I said, even if I could prove that I was “entitled” (given persmission from the Shakopee tribe) to be a member of that tribe through ancestry – I wouldn’t want to. I am an enrolled as a Sisseton-Wahpeton Dakota Sioux.
    I, myself, did not care about the money. Let the Shakopee tribe keep it.

    Before the Shakopee tribe came into big money from the casino; no one cared to try to give up their enrollment to join another Sioux tribe.

    The Shakopee tribe became greedy with all the money they received and they themselves have caused the trouble with other Sioux people regarding enrollment to their tribe. I say, let them keep their money; that is what has empowered them to become truly “members” of mainstream America.

    I am a proud member of the Sisseton-Wahpeton Dakota Sioux Tribe and always will be. To hell with the Shakopee tribe.

  4. Scott Eric Anderson March 11, 2009 / 10:30 pm

    Hau relatives, it is time to put this part of our history behinds and reconcile our relationship among all of our Dakota people, tribes, communities and our Canadian kinsmen. We are Dakota lets not forget!

    Makpiya Sapa, Mdewankton Flandreau, South Dakota

  5. A. Lincoln March 12, 2009 / 4:52 pm

    Perhaps I am not as astute on reading legalese, but if the government illegally takes land from somebody, writes phony treaties, goes back on those treaties, says they are the government and it is final, based on the current presidential administration, congress, senate and other lobbyist at the time and then goes back and says law was passed in 1980 they are not held responsible?? There’s something wrong there? We have a minority President in office now, lets take advantage of it!! He understands are long battles with the government. If the Plaintiffs were to win, (the Shakopees would mortgage their mansions, boats, and fancy cars til they were broke and would still be millionaires) the Shakopees would file an appeal and keep this an appeal process for decades and decades like we’ve seen with other cases. Maybe the plaintiffs are greedy for hopping on the gravey train, or maybe the Shakopees are greedier for not allowing new enrollment so their $150, thousand a month payments keep coming!!

  6. LK Henry November 21, 2010 / 6:16 am

    You would be writing a different “opinion” on the Wolfchild case if you were one of the 7 generations of lineal decendents affected by the upcoming decision. Let us not forget that the plaintiffs are progressing through this undeterred by the money being used to change US law…their own “trust”. No thank you, sir…give me my rights as a US citizen. Painting the “stolen car” a differnt color still does not change the fact that it is a stolen car.

  7. Shannon Brown January 2, 2011 / 11:51 pm

    I think the attorneys can argue a taking issue “taking of property without just compensation which would probably include financial loss for the taking by the 1980 act. I am a descendant of Chief Wanbli Okicize (War Eagle). Our family association has been watching this case for awhile. This case affected the final payment of the Mississippi Sioux Juedgement and it was interesting that a portion of your money was part of the final agreement to settle the Mississippi Sioux land taking. There is one final taking issue that is unresolved it is Royce Area 440 which the current communities land sits on today!

    I hope all is well to you all relatives and a Happy New Year to you and all the relatives!

  8. Rez Man May 19, 2011 / 8:41 pm

    Your so wrong and out of date you better re-write your decisions there totaly wrong ‘

    Home > News > Headlines
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    Native Sun News: Loyal Mdewakanton Dakota win a partial ruling
    Wednesday, January 19, 2011
    Filed Under: Law | Trust

    The following story was written and reported by Ernestine Chasing Hawk. All content © Native Sun News.

    MORTON, Minnesota — Descendents of the Mdewakanton Dakota who remained loyal to the U.S. Government during the 1862 Dakota War were told by the U.S. Court of Federal Claims that they were unfairly denied benefits.

    On Dec. 21, 2010 the U.S. Court of Federal Claims issued its decision in the Wolfchild case after an Oct. 22, 2010 hearing. It found that the Department of the Interior wrongfully distributed moneys derived from the 1886 lands to the existing communities prior to the passage of the 1980 Act.

    However, the ruling is only partial relief. The court ruled that since 1980, the United States has since held the 1886 lands in trust for the Shakopee Mdewakanton Sioux Community, the Prairie Island Indian Community and the Lower Sioux Indian Community and any proceeds from those lands, can be kept by those communities.

    Judge Charles F. Lettow said the plaintiffs are not entitled to money generated on the land after 1980. The exact amount of what they are owed will be determined by the court.

    “That $60,000, identified in a report prepared in 1975, had grown to $131,483 by 1980, and, with additional interest since 1980, would be a few times greater than that larger amount by today, thirty years later,” Lettow said in his Dec. 21, 2010, decision.

    Lettow will hold a hearing on Friday, Jan. 21, to go over the next steps in the case. Attorneys for the plaintiffs said they are considering their options, including a possible appeal on the post-1980 issue.

    According to court documents “the lineal descendants of the 1886 Mdewakanton, plaintiffs were entitled to the funds derived from leasing and licensing the 1886 lands prior to the passage of the 1980 Act. The Indian Trust Accounting Statute serves to toll the accrual of the statute of limitations as to this claim, and the 1980 Act did not affect plaintiffs’ entitlement to the leasing and licensing funds generated and obtained prior to the passage of the 1980 Act. The undisputed facts demonstrate that the government disbursed the funds to the three communities rather than to the lineal descendants, thereby contravening the provisions of the Appropriations Acts that dictated that only eligible Mdewakanton could receive the benefits of the Acts and that such benefits be conferred in as equal an amount as practicable.”

    “Consequently, the government is liable in damages in the amount of these funds. Based upon the text of the Acts and the extensive historical record, which was largely uncontroverted by the parties, the court can ascertain ‘no genuine issue as to any material facts.'”

    “Nor has the government come forward with specific facts demonstrating a genuine issue for trial. Accordingly, plaintiffs’ motion for summary judgment as to its entitlement to the funds derived from leasing and licensing the 1886 lands prior to the passage of the 1980 Act is granted. As explained supra, the Wabasha-Land-Transfer funds are excluded from this grant.”

    “For the reasons stated the court grants in part and denies in part the government’s motions to dismiss this action. The government’s motion to dismiss as it relates to plaintiffs’ entitlement to the Wabasha-Land-Transfer funds and any revenue derived from the 1886 lands after the passage of the 1980 Act is granted. The government’s motion to dismiss as it relates to plaintiffs’ entitlement to funds derived from leasing and licensing the 1886 lands prior to the passage of the 1980 Act is denied. Accordingly, the court also denies the governments’ motion respecting plaintiffs’ claim for attorneys’ fees. The court grants in full the government’s motion to dismiss plaintiffs’ count I (trust mismanagement), count II (breach of contract), count III (separately-pled claims of minor plaintiffs), and count V (community governing documents).”

    Erick G. Kaardal, attorney for the plaintiffs, stated, “I have received some questions regarding what happens next? The next step is to proceed with satisfying every requirement so that a final judgment can be entered in favor of the plaintiffs. Obviously, the final judgment is limited by the exclusion of post-1980 community revenues. The damages award in the final judgment will only reflect pre-1980 community revenues of three communities in question.”

  9. Rhonda Mitchell November 25, 2012 / 1:27 pm

    We are going after the pre-1980 money as well. The gov. screwed up and they WILL fix it and WE WILL WIN! Shakopee will be gone and everyone of those ppl who cannot connect to ONLY the 86’89 censuses will be allowed in, simple as that.

  10. Georgia Gomez September 25, 2013 / 5:08 pm

    Well said My Brother!!!!

  11. Elizabeth Duc March 16, 2014 / 11:21 pm

    Why did they say judge kagan was not involved with making a judgement or comment on the writ decision. Can someone answer that for me..,,

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