Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 5, 2011, as corrected by Order dated August 18, 2011, the Court of Federal Claims directed the Secretary of the Interior to prepare and submit to the Court a roll of eligible claimants and a distribution plan for funds arising from the judgment in
Interested parties should note that the individual Plaintiffs and the Defendant in the underlying litigation have appealed the CFC's judgment to the United States Court of Appeals for the Federal Circuit. (See, Fed. Cir. Case Nos. 2012-5035, -5036, -5043 (consolidated), Appeal from the United States Court of Federal Claims in Consolidated Case Nos. 03-CV-2684 and 01-CV-0568.) Because the parties have filed appeals to the Federal Circuit, the CFC's judgment is not final and the Department of the Treasury has not appropriated any funds to be distributed.
In furtherance of complying with the Court's order to “complete preparation of such roll and plan satisfying the criteria specified in 25 U.S.C. 1403” the Department, in accordance with 25 CFR 87.3(b), will hold hearings on the record in Sioux Falls, South Dakota on October 30, 2012, and in Bloomington, Minnesota on November 1, 2012 to receive testimony on the preliminary plan. Written testimony will also be accepted at the hearings or can be sent to the address in the
The preliminary plan for the distribution of these funds reads as follows:
The Department of the Interior respectfully submits this plan for the distribution of $673,944.00, awarded by the Court of Federal Claims in the case of
This case was brought in 2003 by a group of individuals who claim to be the lineal descendants of the 1886 Mdewakantons, called the “loyal Mdewakantons.” Over time, more individuals have joined the suit as plaintiffs or plaintiff-interveners, and this number is now estimated as exceeding 20,750. The litigation has yielded various and sometimes competing theories and definitions of a “loyal Mdewakanton” that would be eligible to share in an award.
In August 1862, the Minnesota Sioux
Even in the aftermath of the uprising, when the Congress was debating the bill that would investigate the hostilities and impose punitive measures, recognition was given to the existence of a group of Indians who “have been faithful to the whites, have defended them, and who have saved their lives in Minnesota.” Many of those individuals, because of their actions, severed their ties to the tribe and remained in Minnesota. The government's confiscation of the Sioux lands in Minnesota and the forfeiture of the annuities that had been paid pursuant to the abrogated treaties left those individuals poverty-stricken and homeless. In acknowledging the contributions of this group, consisting of about 200 individuals, Congress authorized the Secretary of the Interior to convey 80 acres of public land to “each individual of the before-named bands who exerted himself in rescuing the whites from the late massacre of said Indians.” Act of February 16, 1863, 12 Stat. at 654. Two weeks later, Congress enacted another statute providing: [I]t shall be lawful for [the] Secretary [of the Interior] to locate any meritorious individual Indian of [the four] bands, who exerted himself to save the lives of the whites in the late massacre, upon [the former Sioux reservation lands] on which the improvements are situated, assigning the same to him to the extent of eighty acres, to be held by such tenure as is or may be provided by law . . . [provided] [t]hat no more than eighty acres shall be awarded to any one Indian, under this or any other act.” Act of March 3, 1863, ch. 119, section 4, 12 Stat. at 819.
The Secretary never exercised the authority granted by the 1863 legislation to provide lands to the friendly Sioux, due to the intense opposition of the white settlers. In regard to the friendly Sioux remaining in Minnesota, the 1866 Report of the Secretary of the Interior noted “it is noticeable that Congress has, by several enactments, made attempts to provide for them by donations of land and money; but it has been found impracticable to accomplish anything under those acts, on account of the hostility manifested by the white people of that region towards everything in the form of an Indian. Many of these men have, for the past three years, been
Efforts to provide for the Minnesota Sioux who had aided the settlers during the Sioux Uprising continued. In 1888, 1889, and 1890, Congress enacted legislation appropriating funds for the support of a number of designated Indian tribes. Motivated by the failure of the 1863 Acts to provide relief, Congress included in each of these statues, known collectively as the “Appropriations Acts”, a paragraph allocating a small sum to be used for the benefit of the Mdewakantons who had remained in Minnesota after the 1862 revolt or had returned to Minnesota in the following years.
The 1888 Act appropriated $20,000 “to be expended by the Secretary of the Interior” in purchasing land, cattle, horses, and agricultural implements for the “full-blood Indians in Minnesota belonging to the Mdewakanton band of Sioux Indians, who have resided in [Minnesota]” since May 20, 1886, and who have “severed their tribal relations.” Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29. In 1889, Congress appropriated a further sum of $12,000 “to be expended by the Secretary of the Interior” for the “full-blood” loyal Mdewakanton residing in Minnesota since May 20, 1886, or “who were then engaged in removing to said State.” Act of March 2, 1889, ch. 412, 25 Stat. 980, 992-93. The 1889 Act was substantially similar to the 1888 Act but included three additional provisions not included in the 1888 Act. Unlike the 1888 Act, the 1889 Act required the Secretary to expend the appropriated funds in a manner such that each loyal Mdewakanton received as close to an equal amount as practicable. Additionally, the 1889 Act mandated that any money appropriated in the 1889 Act not expended within the fiscal year would not be recovered by Treasury, but rather would be carried over to the following years and expended for the benefit of the loyal Mdewakanton. The 1889 Act made the “equal amount” requirements applicable to the money appropriated under the 1888 Act as well. In 1890, Congress appropriated an additional $8,000 and adopted the same substantive provisions as the 1889 Act, except that it expressly stated that the further appropriated amount was to support Indians of both “full and mixed blood.” Act of August 19, 1890, 26 Stat. 336, 349. The 1889 and 1890 Acts also differed from the 1888 Act by granting the Secretary discretion based on what “may be deemed best in the case of each of these Indians
The Department of the Interior used approximately $15,600 of the $40,000 appropriated under the three Appropriations Acts to purchase parcels of land in various parts of southern Minnesota where the Mdewakantons had settled. Because of difficulties in determining which of the Mdewakantons qualified as “loyal” during the 1862 uprising, the Appropriations Acts provided that the appropriations would be designated for the benefit of all Mdewakantons who were living in or in the process of removing to Minnesota as of May 20, 1886. As a result, the lands purchased with funds from the three Appropriations Acts are known as “the 1886 lands,” and the Mdewakantons who were statutorily eligible for benefits under the Acts are commonly referred to as “the 1886 Mdewakantons.” The Department of the Interior assigned individual plots from those lands to qualifying Mdewakantons for their use and occupancy, so long as they resided on or otherwise used the land.
The text delineating the beneficiary class in each Appropriation Act varied in minute respects, but the essential thrust of the Acts was Congress' desire that loyal Mdewakanton would be identified as those Mdewakanton who had severed their tribal relations and who had either remained in, or were removing to, Minnesota as of May 20, 1886. To determine the persons who would be considered “loyal” Mdewakanton under Congress' definition and thus would receive the benefits of the Appropriations Acts, the Department of the Interior relied upon two censuses: The McLeod listing and the Henton listing. The McLeod listing was generated in 1886 by U.S. Special Agent Walter McLeod and listed all of the full-blood Mdewakantons remaining in Minnesota at the time. Under the Secretary's direction, on January 2, 1889, a supplementary census was taken by Robert B. Henton, Special Agent for the Bureau of Indian Affairs (“BIA”), of the Mdewakanton living in Minnesota since May 20, 1886. That listing included some mixed bloods. Together, these listings were used to distribute the benefits of the Appropriations Acts to those persons whose names appeared on the lists, and subsequently, to lineal descendants of those listed persons.
Over time, funds were generated by the use, sale and leasing of the 1886 lands, which were placed in Treasury trust fund accounts. Some of these funds were obtained from a transfer of a portion of the 1886 lands by the United States to the Upper Mississippi River Wildlife and Fish Refuge (“the Wabasha Land Transfer”). The remaining portion of the money, however, stemmed from Interior's policy of leasing or licensing 1886 lands for fair market value where no eligible Mdewakanton or lineal descendant was available for a land assignment. In 1975, the BIA performed a detailed accounting of all funds derived from the 1886 lands then held by the Treasury. After deduction of the Wabasha Land Transfer funds, the sum remaining attributable to the 1886 lands amounted to $60,464.02.
Pursuant to the Indian Reorganization Act of 1934, three Mdewakanton communities were formed in the three areas where the 1886 lands were located. The three communities are the Prairie Island Indian Community, the Shakopee Mdewakanton Sioux Community, and the Lower Sioux Indian Community. The enrolled membership of the three communities consists largely of lineal descendants of the Mdewakantons who were living in Minnesota in 1886, but some enrolled members are not descendants of the 1886 Mdewakantons, and many of the descendants of the 1886 Mdewakantons are not enrolled members of any of the three communities. Over time, the government purchased additional land for the Prairie Island and Lower Sioux communities. Those lands were regarded as reservation lands and as such were held in trust for those two communities. Prior to 1980, those reservation lands were treated as having a legally distinct status from the 1886 lands, even though parcels of the two classes of property were intermingled in the same areas within the geographical boundaries of the Prairie Island and Lower Sioux communities.
In 1980, Congress enacted legislation designed to give the three communities political control over all the property within the communities that had been set aside for Indians, including the 1886 lands.
The Court of Federal Claims found that the transfer of monies derived from the 1886 lands to the three communities was not authorized by the 1980 statute, and that the “loyal Mdewakantons” referenced in the Appropriations Acts should have been the beneficiaries. As referenced above, the Department of the Interior is directed to determine which claimants are the proper beneficiaries of the Appropriations Acts, and who are therefore entitled to share in the judgment. This process also entails consideration of the various theories of recovery advanced by the plaintiffs in the court case in order to establish the proper criteria for determining the class of persons the Appropriations Acts were intended to benefit.
Various iterations have emerged as to how to define “loyal Mdewakanton” and how to determine the lineal descendants of such loyal Mdewakantons with respect to who should be the intended beneficiaries of the Appropriations Acts. The contentions fall into three general categories:
One iteration is that loyal Mdewakantons are limited to those individuals appearing on censuses carried out at the direction of the Secretary of the Interior in 1886 (the McLeod census) and 1889 (the Henton census) specifically to identify the intended beneficiaries of the Acts. The criteria specified in the Acts are Mdewakanton residing in Minnesota on May 20, 1886 (or who were in the process of removing there), and who had severed their tribal relations. As noted above, the 1890 Act made provisions to include both full and mixed blood Mdewakantons.
A second iteration goes beyond the McLeod and Henton censuses to define eligibility and would also rely on lists of individuals who were scouts, or who rescued whites, or who performed other meritorious services to aid the settlers during the uprising. This position is supported by the fact that legislation enacted in 1863 pertaining to Mdewakantons employed other standards. Those acts were not restricted to the Mdewakanton, and spoke of “meritorious” or “friendly” Indians who had “exerted themselves” to rescue the white settlers. This position would counsel toward the use of additional source documents that reflect individuals not listed in the 1886 and 1889 censuses who had been “loyal” or “friendly” and therefore in the class that Congress intended to benefit. These other sources might include:
A third iteration recognizes that “mixed blood” Mdewakantons were not included on the 1886 and 1889 censuses used to determine receipt of benefits under the Appropriations Acts, but these mixed bloods were specifically mentioned as beneficiaries in the 1890 Act. This position would counsel toward consideration of later censuses that were perhaps more likely to include mixed bloods and those who may not have been present for the 1886 and 1889 counts but were “in the process of removing to Minnesota.” Later enumerations of Mdewakanton in Minnesota include:
Robert Henton was commissioned by the Secretary of the Interior to conduct the census of 1889 of Mdewakanton Indians in Minnesota. These subsequent lists of full and mixed-blood Mdewakantons at the Birch-Cooley Agency appear to be a continuation of his earlier work, given the inclusion of mixed-bloods as recipients of the 1890 Appropriations Act.
An 1899 letter from the Commissioner of the BIA references this census as a refinement of the earlier work done by Robert Henton to enumerate the Mdewakantons entitled to the benefits of the Appropriations Acts.
The Appropriations Acts defined the loyal Mdewakantons and intended beneficiaries of the Act as (1) Indians in Minnesota, belonging to the Mdewakanton Band of Sioux Indians, (2) who resided in the state on May 20, 1886, or were in the process or removing to Minnesota, and (3) who have severed their tribal relations. A review of Interior Department memoranda, correspondence and administrative determinations dating from 1886 through 1982 shows these as the criteria consistently applied in making or evaluating assignments for the 1886 Lands. Because the funds that form the basis of the proceeds in this case derive from those lands, the same criteria should apply in determining who is eligible to share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued
(1) The 1886 McLeod Census
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the Secretary of the Interior for the purpose of determining eligibility under the Appropriations Acts.
We determine that the class of persons eligible to participate in any final judgment of the Court of Federal Claims are those who can submit proof of descent from any individual listed on the documents adopted as probative above.