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06/30/89 Edna Emerson Littlewolf, v. Manuel Lujan

June 30, 1989





Appeal from the United States District Court for the District of Columbia, D.C. Civil Action No. 87-00822.


Robinson, Starr,* and Buckley, Circuit Judges. Opinion for the court filed by Circuit Judge Buckley.


Appellants, members of the White Earth Band of the Chippewa Tribe, seek review of the district court's decision upholding the constitutionality of the White Earth Reservation Land Settlement Act of 1985. The Act extinguishes the Indians' claims to land illegally transferred earlier in this century, in return for payment of compensation based on the fair market value at the time of transfer plus five percent interest. The Act gives claimants the option of filing an action for judicially determined compensation within six months of the issuance of notice of the payment due them, in which case they forego their statutory compensation.

Appellants argue that the White Earth Reservation Land Settlement Act violates the Fifth Amendment in two ways. First, they assert that the six-month limitations period is unreasonable under the Due Process clause because the federal government has breached its trust duty to provide the Indians with information sufficient to enable them to bring timely claims. Second, the Chippewas contend that the Act effects a taking of their property without just compensation.

We find it unnecessary to resolve the Due Process issues because even if we assume that the period allowed for filing claims is unreasonably short and "takes" the White Earth Indians' property rights, we conclude that the Act's compensation provision (land value plus interest) is reasonable; furthermore, the Act permits a Band member to challenge the adequacy of the statutory compensation in a Tucker Act suit.

As the Act does not contravene the Fifth Amendment, we affirm the district court's judgment. I. BACKGROUND

A. Historical Framework

Through a series of treaties, the Chippewa Indian Tribe ceded substantial territory in Minnesota to the United States in return for payments and the creation of the 830,000-acre White Earth Reservation. See, e.g., Treaty with the Chippewa Indians, March 19, 1867, 16 Stat. 719. With the General Allotment Act of 1887, 24 Stat. 388, as applied to White Earth through the Nelson Act of 1889, 25 Stat. 642, Congress began a policy of breaking up tribal reservations and granting parcels (usually eighty acres) to individual Indians through "trust patents," which provided that the United States would hold each allotment in trust for twenty-five years and then convey title in fee to the allottee. During this period, the property would be tax-exempt and could not be conveyed or encumbered without the approval of the Secretary of the Interior ("Secretary").

Pursuant to the Nelson Act, about 5,000 trust patents were issued, most of them in 1902. The Steenerson Act of 1904, 33 Stat. 539, authorized the President to make additional allotments, so that each Chippewa legally residing on White Earth would receive 160 acres. See generally Peterson, That So-Called Warranty Deed: Clouded Land Titles on the White Earth Indian Reservation in Minnesota, 59 N. Dak. L. Rev. 159, 164 (1983) (sources cited).

Congress purported to abolish the trust relationship established by the General Allotment Act when it adopted the Clapp Amendment of 1906, 34 Stat. 325, 353, as amended by the Act of March 1, 1907, 34 Stat. 1015, 1034. That statute removed "all restrictions as to the sale, incumbrance [sic], or taxation for allotments within the White Earth Reservation . . . held by adult mixed-blood Indians" and also authorized the Secretary of the Interior to grant fee simple title to adult full-blood applicants deemed "competent to handle their own affairs." Id. (emphasis added). The Amendment resulted in the swift transfer to private parties of the vast majority of reservation land from Indians who had been granted fee simple ownership. See, e.g., S. Rep. No. 192, 99th Cong., 1st Sess. 6 (1985) (by 1909, ninety percent of lands allotted to full bloods had been sold or mortgaged, and eighty percent of reservation land was owned by non-Indians). The loss of tax-exempt status allowed state and county governments to tax the allotments, many of which were later lost through tax forfeitures. Peterson (supra) at 175-76.

Subsequently, courts interpreting the Clapp Amendment emphasized its distinction between full and mixed blood Indians and also concluded that contrary to the original assumption, full bloods continued to enjoy a limited trust relationship under the Amendment. These decisions, which set aside certain sales, prompted Congress to create a commission to compile a roll indicating whether an allottee was of full or mixed blood. 38 Stat. 77, 88-89 (1913). The Clapp Amendment was widely interpreted as having ended the trust relationship between the federal government and mixed bloods. For example, in 1915 the Solicitor for the Department of the Interior ("DOI" or "Interior") concluded that the Amendment had terminated his duty to probate the estates of mixed blood allottees, Opinion of the DOI Solicitor, No. D-29636 (Aug. 2, 1915) -- seemingly in disregard of the Secretary's duty to determine the heirs of allottees who had died before expiration of the trust period, 36 Stat. 855 (1910) (codified at 25 U.S.C. § 372). Minnesota state courts assumed this probate function.

In Morrow v. United States, 243 F. 854 (8th Cir. 1917), however, the Eighth Circuit held that trust patents vested in mixed blood allottees an unalterable property right to tax immunity for twenty-five years and suggested that the Clapp Amendment could not unilaterally terminate the trust relationship. Thus, Morrow voided tax forfeitures of trust properties and cast doubt upon the validity of many land transfers made from 1906 to 1917. Nonetheless, the Department of Justice, as counsel for the government, made only sporadic efforts to bring suit on behalf of Indians whose land had been illegally conveyed. This lack of enforcement action continued despite successive extensions of the trust period. See Exec. Orders No. 4642 (1927), No. 5768 (1931), and No. 5953 (1932); Indian Reorganization Act of 1934, 25 U.S.C. § 462 (1982) (extending trust indefinitely).

In the late 1970's, several events forced a change in this pattern of neglect of the Indians' legal rights. The most important was the Minnesota Supreme Court's decision in State v. Zay Zah, 259 N.W.2d 580 (Mn. 1977), cert. denied, 436 U.S. 917, 56 L. Ed. 2d 758, 98 S. Ct. 2263 (1978), holding that the Clapp Amendment could not unilaterally abrogate the trust status of a White Earth allotment. Thus, allotments held in trust by the United States retained their tax immunity until the patentee requested and received fee simple title. Id. at 586. The court concluded that the allotment at issue was not subject to tax forfeiture and that equitable title remained in the allottee's heirs. Id. at 586-89.

In 1979, the DOI Solicitor interpreted Zay Zah as invalidating title acquired not only through tax forfeiture, but also through state probate awards and "other forms of involuntary alienation" (e.g., purchase, without Interior's approval, from mixed blood Chippewas under twenty-one years of age). See DOI Memorandum from the Solicitor to the Assistant Secretary, Indian Affairs (May 9, 1979), reprinted in White Earth Indian Land Claims Settlement: Hearings on S.1396 before the Senate Select Comm. on Indian Affairs, 99th Cong., 1st Sess. at 102-06 (1985) ("Hearings on S.1396"). Reversing the Solicitor's 1915 opinion, the Interior Department acknowledged its duty to re-probate all estates and make current heirship determinations. Id. Accordingly, the Department's Bureau of Indian Affairs sent hundreds of letters advising holders of land from the original White Earth Reservation about possible title defects and notifying them that the agency would "make every attempt to clear the United States' title to these lands" and would ...

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