Two Amicus Briefs Supporting Wolfchild Cert Petition


Gregory Sisk Amicus

Historic Shingle Springs Miwok Amicus

Cert petitions here.

Zephier v. United States & Wolfchild v. United States Cert Petitions


Wolfchild v US Cert Petition

Zephier v US Cert Petition

Wolfchild questions presented:

1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.

2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.

3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.

Zephier questions presented:

I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?

II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?

III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”

IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?

Lower court materials here.

Federal Circuit Decides Wolfchild v. United States Appeal

Here are the materials:

33 United States Appellant Brief

82 Wolfchild Answer Brief

90 Coursolle Descendants Answer Brief

92 US Answer Brief

99 Coursolle Reply

105 Wolfchild Reply

122 Lower Sioux Community, Prairie Island, and Shakopee Amicus Brief

CAFed Opinion

An excerpt:

The United States currently holds certain tracts of land in Minnesota in trust for three Indian communities. It originally acquired some of that land in the late 1800s, using funds appropriated by Congress to help support a statutorily identified group of Indians, and held it for the benefit of those Indians and their descendants for decades. As time passed, that beneficiary group and the three present-day communities that grew on these lands overlapped but diverged: many of the beneficiary group were part of the communities, but many were not; and the communities included many outside the beneficiary group. In 1980, Congress addressed the resulting land use problems by putting the lands into trust  for the three communities that had long occupied them. Ever since, proceeds earned from the lands—including profits from gaming—have gone to the same three communities.

The discrepancy between the makeup of the three communities and the collection of descendants of the Indians designated in the original appropriations acts underlies the present dispute, which was before this court once before. Claimants allege that they belong to the latter group and that they, rather than the communities, hold rights to the land at issue and any money generated from it. Four years ago, based on an extensive analysis of the relevant laws and history, we rejected what was then the only live claim, which got to the heart of their assertion: that the appropriations acts created a trust for the benefit of the statutorily designated Indians and their descendants. Wolfchild v. United States, 559  F.3d 1228 (Fed. Cir. 2009). On remand, claimants advanced several new claims, some of which seek proceeds generated from the lands, others of which seek more. Again unable to
find that claimants have stated a claim that meets the standards of governing law, we now reject these new claims, including the one that the Court of Federal Claims held valid in the judgment we review.

Lower court materials here.

News Coverage of Wolfchild Cert Petition Denial

From the Minneapolis Star-Tribune via Pechanga:

WASHINGTON – A bitter legal battle ended in defeat for some of the nation’s poorest Indians on Monday when the U.S. Supreme Court declined to hear their case for sharing the gambling wealth from the Mystic Lake and Treasure Island casinos near the Twin Cities.

The group, led by former Lower Sioux Community Chairman Sheldon Wolfchild, had petitioned the Supreme Court to review a federal appeals ruling that went against them last year.

Although some claims remain, the Supreme Court’s decision leaves intact a ruling that struck at the heart of Wolfchild’s case alleging that the federal government breached a 19th-century trust with the legitimate heirs of the Indian lands at Prior Lake and Prairie Island, where the casinos are located.

“It’s a grave injustice for the real Mdewakanton of Minnesota,” Wolfchild said.

Members of the tight-knit Shakopee Mdewakanton Sioux (Dakota) Community, which runs Mystic Lake as part of a lucrative casino complex near Shakopee, have decried the lawsuit as a groundless money grab.

“This should be the end of a misguided effort to attack the three federally recognized Mdewakanton tribal governments in Minnesota,” said Shakopee Tribal Chairman Stanley Crooks, a distant relative of Wolfchild.

The case, which dates to 2003, is based on historical claims made by descendants of Mdewakanton Indians credited with helping white settlers during the 1862 Dakota rebellion in Minnesota.

Numbering more than 20,000 in the United States and Canada, the descendants laid claim to the proceeds of the lands that form part of the present-day Mystic Lake and Treasure Island casinos.

Some of those descendants, such as Wolfchild, hail from the Lower Sioux Community near Morton, Minn., site of the less profitable Jackpot Junction Casino.

Although many of Wolfchild’s backers across the nation had their eyes on the riches of the casinos near the Twin Cities, their suit sought damages from the U.S. government, not the Shakopee and Prairie Island tribal governments, which were set up in 1980.

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Supreme Court Grants Cert in United States v. Tohono O’odham Nation

This morning, the Supreme Court agreed to decide United States v. Tohono O’odham Nation (No. 09-846). The Court denied cert. in the Wolfchild/Zephier petitions. Here is the order list.

Here are the questions presented in Tohono O’odham (and the petition):

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff *** has *** any suit or process against the United States” or its agents “pending in any other court.” The question presented is:

Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.