United States Court of Appeals
for the Federal Circuit
______________________
SHELDON PETERS WOLFCHILD, ERNIE PETERS
LONGWALKER, SCOTT ADOLPHSON, MORRIS J.
PENDLETON, BARBARA FEEZOR BUTTES,
WINIFRED ST. PIERRE FEEZOR, AUTUMN
WEAVER, ARIES BLUESTONE WEAVER, ELIJAH
BLUESTONE WEAVER, RUBY MINKEL, LAVONNE
A. SWENSON, WILLIS SWENSON, AARON
SWENSON, BEVERLY M. SCOTT, LILLIAN
WILSON, MONIQUE WILSON, SANDRA
COLUMBUS GESHICK, CHERYL K. LORUSSO,
JENNIFER K. LORUSSO, CASSANDRA
SHEVCHUK, JASON SHEVCHUK, JAMES PAUL
WILSON, EVA GRACE WILSON, BENITA M.
JOHNSON, AND KEVIN LORUSSO,
Plaintiffs-Cross Appellants,
AND
ANITA D. WHIPPLE et al., Descendants of Lucy
Trudell, BONNIE RAE LOWE, et al., Descendants of
Joseph Graham, et al., LENOR ANN SCHEFFLER
BLAESER et al., Descendants of John Moose, AND
MARY BETH LAFFERTY, et al.,
Plaintiffs,
AND
COURSOLLE DESCENDANTS AND ROCQUE AND
TAYLOR DESCENDANTS,
Plaintiffs,
2 WOLFCHILD v. US
AND
DEBORAH L. SAUL, LAURA VASSAR, et al., LYDIA
FERRIS et al., DANIEL M TRUDELL, et al.,
ROBERT LEE TAYLOR, et al., AND DAWN HENRY,
Plaintiffs,
AND
RAYMOND CERMAK, SR., (acting individually and
under a power of attorney for Stanley F. Cermak,
Sr.), MICHAEL STEPHENS, et al., JESSE CERMAK,
et al., DENISE HENDERSON, DELORES
KLINGBERG, SALLY ELLA ALKIRE, PIERRE
ARNOLD, JR., AND GETRUDE GODOY et al.,
Plaintiffs,
AND
JOHN DOES 1-30, WINONA C. THOMAS ENYARD,
AND KITTO, et al.,
Plaintiffs,
AND
FRANCINE GARREAU, et al.,
Plaintiffs,
AND
FRANCIS ELAINE FELIX,
Plaintiff,
AND
KE ZEPHIER, et al.,
Plaintiffs,
WOLFCHILD v. US 3
AND
LOWER SIOUX INDIAN COMMUNITY,
Plaintiff,
AND
PHILIP W. MORGAN,
Plaintiff,
AND
REBECCA ELIZABETH FELIX,
Plaintiff,
AND
VERA A. ROONEY, et al.,
Plaintiffs,
AND
DANNY LEE MOZAK,
Plaintiff-Cross Appellant,
AND
DAWN BURLEY, et al.
Plaintiffs-Cross Appellants,
AND
HARLEY ZEPHIER, SR.,
Plaintiff-Cross Appellant,
AND
4 WOLFCHILD v. US
JOHN DOES 1-433,
Plaintiffs-Cross Appellants,
AND
JULIA DUMARCE, et al.,
Plaintiffs-Cross Appellants,
AND
RAYMOND COURNOYER, SR., et al., JERRY
ROBINETTE, et al., SANDRA KIMBELL, et al.,
CHARLENE WANNA, et al., AND LESLIE LEE
FRENCH, et al.,
Plaintiffs-Cross Appellants,
AND
KRISTINE ABRAHAMSON,
Plaintiff-Cross-Appellant,
AND
VICTORIA ROBERTSON VADNAIS,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2012-5035, -5036, -5043
______________________
WOLFCHILD v. US 5
Appeals from the United States Court of Federal
Claims in case Nos. 03-CV-2684 and 01-CV-0568, Judge
Charles F. Lettow.
______________________
Decided: September 27, 2013
______________________
ERICK G. KAARDAL, Mohrman & Kaardal, P.A., of
Minneapolis, Minnesota, argued for plaintiffs-cross appel-
lants, Sheldon Peters Wolfchild, et al.
GARY J. MONTANA, Montana & Associates, of Osseo,
Wisconsin, argued for plaintiffs-cross appellants, Julia
Dumarce Group, et al. and ROBIN L. ZEPHIER, Abourezek
& Zephier, of Rapid City, South Dakota, argued for Plain-
tiff-Cross Appellant, Harley Zephier, Sr. With them on
the brief was R. DERYL EDWARDS, JR., Attorney at Law, of
Joplin, Missouri.
JOHN L. SMELTZER, Attorney, Environment and Natu-
ral Resources Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellant. With him on the brief were IGNACIA S.
MORENO, Assistant Attorney General, AARON AVILA and
JODY SCHWARZ, Attorneys.
PHILIP BAKER-SHENK, Holland & Knight, LLP, of
Washington, DC, for amici curiae.
______________________
6 WOLFCHILD v. US
Before RADER, Chief Judge, REYNA, and TARANTO, Circuit
Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Opinion concurring-in-part and dissenting-in-part filed by
Circuit Judge REYNA.
TARANTO, Circuit Judge.
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 dec-
ades. 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 asser-
tion: 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
WOLFCHILD v. US 7
(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.
BACKGROUND
A
The Minnesota Sioux originally lived along a northern
stretch of the Mississippi River. But in the middle of the
nineteenth century, including in treaties of 1851 and
1858, the group ceded its aboriginal land to the United
States. In return for territory and promises of peace, the
Sioux received a reservation along the Minnesota River (a
tributary of the Mississippi) and assurances of compensa-
tion.
This arrangement was short-lived. By 1862, many of
the Sioux, whose grievances we need not detail, rebelled.
The United States defeated the uprising, but not before
many non-Indian settlers had been killed and their prop-
erty damaged.
Congress responded to the rebellion with two statutes
in early 1863. The first annulled all treaties with the
Sioux and declared that much of the money still owing to
the Indians would be paid to non-Indian Minnesota
families harmed during the conflict. Act of Feb. 16, 1863,
ch. 37, 12 Stat. 652. The second, passed the following
month, focused on moving the rebellious Sioux out of
Minnesota and redistributing their former reservation
land. Act of Mar. 3, 1863, ch. 119, 12 Stat. 819.
Both statutes, however, also recognized that some in-
dividual Sioux had remained loyal to the United States
during the revolt and were now left without benefits
under the annulled treaties and without the tribal affilia-
8 WOLFCHILD v. US
tion they had broken by siding with the United States.
The February Act, therefore, authorized the Secretary of
the Interior to “set apart . . . eighty acres in severalty to
each individual . . . who exerted himself in rescuing the
whites” and provided that any land “so set apart . . . shall
be an inheritance to said Indians and their heirs forever.”
Act of Feb. 16, 1863, § 9, 12 Stat. at 654. The March Act
similarly allowed the Secretary to locate any of the same
“meritorious individual Indian[s]” on certain former
reservation lands, “to be held by such tenure as is or may
be provided by law.” Act of Mar. 3, 1863, § 4, 12 Stat. at
819.
Two years later, in 1865, the United States took addi-
tional steps to try to help the loyal Sioux. First, Congress
appropriated $7,500 to “make . . . provision[s] for their
welfare” because they were “entirely destitute.” Act of
Feb. 9, 1865, ch. 29, 13 Stat. 427. Shortly thereafter, the
Secretary of the Interior approved the withdrawal from
public sale of 12 sections of land (12 square miles, or
7,680 acres), invoking the land-allocating authority of the
two 1863 Acts. But opposition from local residents devel-
oped, leading officials to abandon this effort to secure a
more permanent settlement for the loyal Sioux. The 12
parcels were returned to public sale and sold.
Congress took no further action to assist the loyal
Sioux until the 1880s. By that time, many of them had
moved out of Minnesota, but a small number of
Mdewakantons—the name of one of the bands of Minne-
sota Sioux—had remained in or returned to the state.
Beginning in 1884, Congress appropriated funds that
Interior paid directly to these Mdewakantons or used to
buy land that was then transferred to them in fee. Many
Mdewakantons failed to hold onto clean title in their land,
however, and the federal government soon changed its
approach.
WOLFCHILD v. US 9
In 1888, 1889, and 1890, Congress passed three stat-
utes appropriating a total of $40,000 to support the
Mdewakantons who had resided in (or been moving to)
Minnesota on May 20, 1886 and had “severed their tribal
relations.” Act of June 29, 1888, ch. 503, 25 Stat. 217,
228-29; Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93;
Act of Aug. 19, 1890, ch. 807, 26 Stat. 336, 349. The Acts
authorized the Secretary to spend the funds on a number
of items, including lands, cattle, horses, and agricultural
implements. Id. With some of the money, the govern-
ment purchased land in four Minnesota counties—Scott,
Redwood, Goodhue, and Wabasha. This time, rather than
transfer ownership rights directly to the Indians, the
United States retained title in the land and assigned only
rights of possession and use.
During the decades that followed, communities
formed on the land in three of the four counties. Unsur-
prisingly, the communities consisted largely of Indians
who had descended from the Mdewakantons identified in
the 1888-1890 Acts and for whose benefit lands were
purchased under those Acts. But the overlap between the
communities and the class of statutory beneficiaries was
not perfect: the communities included some people who
were not descendants of these Mdewakantons, and not all
of the descendants of these Mdweakantons were members
of the three communities.
The 1934 enactment of the Indian Reorganization Act
(IRA) had two significant consequences for the three
communities. First, the Act granted Indians a right to
“organize for [their] common welfare.” Act of June 18,
1934, ch. 576, § 16, 48 Stat. 984, 987. The Secretary
permitted the Minnesota communities to organize as the
Prairie Island Indian Community (on the land in Goodhue
County), the Shakopee Mdewakanton Sioux Community
(in Scott County), and the Lower Sioux Indian Communi-
ty (in Redwood County). Second, the Act authorized the
Secretary to purchase land for Indians and provided that
10 WOLFCHILD v. US
title to any such land would be “taken in the name of the
United States in trust” for the beneficiaries. Id. § 5, 48
Stat. at 985. After 1934, the government acquired addi-
tional territory for the Prairie Island and Lower Sioux
communities under this statute and held those lands in
trust for those two communities.
The three communities encountered difficulties in
managing the land they occupied. A significant reason
was that, while some of the land was held under the IRA
for the communities as a whole, much of the land was
held for the use and benefit of certain Mdewakantons,
rather than the communities. In 1980, Congress set out
to resolve the problem by declaring that “all right, title,
and interest of the United States” in the land acquired
under the 1888-1890 appropriations acts would “hereafter
be held by the United States . . . in trust” for the three
communities. Act of Dec. 19, 1980, Pub. L. No. 96-557, 94
Stat. 3262. That enactment equalized the status of the
land acquired under the IRA and the land purchased
under the 1888-1890 Acts: all the land was now held in
trust for the benefit of those communities.
B
The varying rights to the land acquired in the after-
math of the 1862 rebellion have had significant conse-
quences for the distribution of money related to that land.
Over the years, the land has produced revenue in differ-
ent ways. In 1944, for example, Congress generated
$1,261.20 when it authorized the transfer to a wildlife
refuge of land “no longer used by Indians” in Wabasha
County—one of the four counties in which land was
purchased under the 1888-1890 Acts. Act of June 13,
1944, Pub. L. No. 78-335, §§ 1-2, 58 Stat. 274. Later, but
still before 1980, the Department of the Interior leased or
licensed land bought under the 1888-1890 Acts when no
eligible Mdewakanton was available for assignment, and
it then either passed the proceeds to third parties or held
WOLFCHILD v. US 11
them in accounts at the Treasury Department. After
1980, the introduction of casino gambling on the land
generated substantial profits.
To date, the three communities and their members
have received all of this money. In 1981 and 1982, Interi-
or disbursed to the three communities funds derived from
the Wabasha County land transfer and from the leasing of
unused lands—amounting to $61,725.22 in 1975, over
$130,000 at the time of disbursement, and about $675,000
today. The extensive gaming profits earned from casinos
and other businesses have likewise gone to members of
the communities for whom the lands are currently held in
trust.
This lawsuit began as—and to a large extent contin-
ues to be—a dispute about those revenues. In 2003, a
group claiming to be descendants of the Mdewakantons
who were eligible for benefits under the 1888-1890 Acts
brought suit against the government. The principal
theory asserted was that the 1888-1890 Acts created a
trust for their benefit and that the government had
breached that trust by allowing proceeds from the lands
purchased under those Acts to go to the three communi-
ties. In 2009, in an interlocutory appeal, we rejected that
argument, holding that the 1888-1890 Acts did not create
a trust for the statutorily designated beneficiaries or their
descendants and that, even if there was such a trust, it
was terminated by the 1980 Act. Wolfchild v. United
States, 559 F.3d 1228 (Fed. Cir. 2009).
On remand, several groups of claimants filed motions
to amend their complaints to add a number of claims not
previously asserted. They continued to pursue revenues
derived from the land (now under new theories), and they
also sought to add claims based on the government’s
alleged failure to provide them with more land in the
1800s. Claimants rooted their proposed causes of action
in a variety of authorities, including the 1863 Acts, the
12 WOLFCHILD v. US
1888-1890 Acts, the Indian Non-Intercourse Act, and the
Takings Clause of the Fifth Amendment.
The Court of Federal Claims addressed the motions to
amend in two decisions. The first decision granted claim-
ants leave to add one count, concerning the 1888-1890
Acts, and ruled favorably on that claim in part: it found
the government liable on a claim to pre-1980 revenues
from the lands acquired under the 1888-1890 Acts, but
rejected any claim to funds generated from the lands after
the passage of the 1980 Act. Wolfchild v. United States,
96 Fed. Cl. 302 (2010). The next year, the Claims Court
denied claimants’ motions to add claims under the Indian
Non-Intercourse Act, the 1863 Acts, and the Takings
Clause because the proposed causes of action “would not
withstand a motion to dismiss.” Wolfchild v. United
States, 101 Fed. Cl. 54, 76 (2011). The court also estab-
lished a process for distribution of damages awarded in
the judgment concerning the pre-1980 revenues from land
bought under the 1888-1890 Acts. Id. at 86-92.
The parties have filed three separate appeals from
those decisions. The government seeks reversal of the
judgment regarding pre-1980 revenues (and challenges
the distribution process), and two plaintiff groups chal-
lenge the rejection of various other claims they sought to
add to their complaints. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
A
1
The first appeal before us, brought by the govern-
ment, concerns claimants’ alleged right to pre-1980 reve-
nues generated from the lands purchased under the 1888-
1890 Acts. The question is whether the Acts create a
“money-mandating” duty that extends to the claim made
by these claimants, i.e., applies to proceeds earned from
WOLFCHILD v. US 13
land bought with the original appropriations and requires
that such proceeds, if and when they accrue, be paid to
descendants of the original beneficiaries identified in the
statutes more than a century ago. We conclude that the
1888-1890 Acts do not impose such a money-mandating
duty, which presents a question of law, Ferreiro v. United
States, 501 F.3d 1349, 1351 (Fed. Cir. 2007), and we
therefore reverse the Claims Court’s judgment against the
United States.
A viable claim under the Indian Tucker Act, 28 U.S.C.
§ 1505, requires that the plaintiffs “‘identify a substantive
source of law that establishes specific fiduciary or other
duties, and allege that the Government has failed faith-
fully to perform those duties.’” United States v. Navajo
Nation, 556 U.S. 287, 290 (2009) (Navajo II). The court
then must decide whether the identified source of law
“‘can fairly be interpreted as mandating compensation for
damages sustained as a result of a breach of the duties . . .
impose[d].’” Id. at 291. Implicit in these requirements is
the logical premise that the asserted source of a duty
must apply to the particular plaintiffs’ claim: plaintiffs
“cannot invoke [a statute] as a source of money-
mandating rights or duties” if the basis for their com-
plaint “‘falls outside’ [the statute’s] domain.’” Id. at 299-
300; see United States v. Navajo Nation, 537 U.S. 488, 509
(2003) (Navajo I) (rejecting reliance on a statute that
“does not establish standards governing” the particular
type of conduct at issue); id. at 513 (assertions “are not
grounded in a specific statutory . . . provision that can
fairly be interpreted as mandating money damages” if the
provisions invoked do not “proscribe[] the [conduct] in
th[at] case”). As this court has held, “[t]he statute must
. . . be money-mandating as to the particular class of
plaintiffs.” Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 876 n.2 (Fed. Cir. 2007); see Jan’s Helicopter
Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308
(Fed. Cir. 2008).
14 WOLFCHILD v. US
Those prerequisites control this appeal because, even
if the 1888-1890 Acts were money-mandating as to some
benefits for some people (say, the original appropriation
for the original designated Indians), the claimants that
are now here have not identified a money-mandating duty
in the 1888-1890 Acts requiring that proceeds from cer-
tain lands be distributed to them as descendants of the
designated Indians. To begin with, the text of the Acts
contains no “specific rights-creating or duty-imposing
statutory . . . prescriptions” that apply to the present
claim and claimants. Navajo I, 537 U.S. at 506. On the
contrary, any prescriptions in the Acts—indicating, for
example, who the beneficiaries are, and that each Indian
“shall receive[], as nearly as practicable an equal amount
in value of this appropriation,” Act of Mar. 2, 1889, ch.
412, 25 Stat. 980, 993—do not go beyond requiring that
the original Indians designated in the Acts benefit from
the expenditure of the money appropriated. The statutes
neither mention “descendants” of those designated Indi-
ans nor say anything about proceeds that may or may not
accrue from what was bought with the appropriated
funds. The only express mandates in the Acts, in other
words, begin and end with the expenditure of money
appropriated in those Acts, for the benefit of the Indians
specified in those Acts.
With the statutory text silent about any “specific fidu-
ciary or other duties” concerning future proceeds or de-
scendants, Navajo II, 556 U.S. at 290 (internal quotation
marks omitted), claimants must be able to show that such
a duty is properly inferred from the language. The
Claims Court inferred the requisite duty by reasoning
that, because the Secretary viewed the 1888-1890 Acts as
providing the authority to generate leasing revenues for
the benefit of descendants of the original Indians, all of
the requirements in those Acts necessarily attached to
direct the spending of revenues generated under that
authority. See Wolfchild, 96 Fed. Cl. at 336-37. But that
WOLFCHILD v. US 15
line of reasoning does not support the required inference
of a money-mandating duty applicable here.
The Secretary’s authority to act does not support in-
ference of the asserted duty to act (enforceable by a suit
for money damages). At the threshold, the mere authority
to generate leasing revenues does not carry with it any
obligation to do so. The Secretary would not have violated
any provision of the Acts if he had opted not to generate
any leasing (or other) proceeds at all after the initial
funds were spent.
That leaves only the argument that, once the govern-
ment had collected land revenues that never had to be
earned in the first place, the Acts imposed a duty that
dictated how to spend those revenues—specifically, for
descendants. Simply stating the argument, however,
makes clear that it is, in substance, a claim that every-
thing bought with the original appropriations, and pro-
ceeds from such purchases, were to be held in trust for the
Indians and their descendants. Claimants recognized
that this was their essential claim when they made just
that argument under the 1888-1890 Acts throughout this
case’s initial stages. But this court rejected that trust
claim in 2009, after full analysis of the statutory lan-
guage, history, and implementation, an analysis we need
not repeat here. Wolfchild, 559 F.3d 1228. Having re-
served the present issue for later analysis “to the extent
necessary,” id. at 1260 n.14, we now conclude that our
rejection of the trust claim four years ago—a matter of
substance, not labels—requires rejection of what
amounts, at bottom, to the same substantive claim here.
Pragmatic considerations reinforce our conclusion.
Specifically, adopting claimants’ argument would present
such substantial practical problems that, in the absence of
much clearer language than exists, the statutes cannot
fairly be read to impose the money-mandating duty that
claimants assert. The funds at issue were first disbursed
16 WOLFCHILD v. US
nearly 100 years after the original appropriations acts
became law, by which time descendants had spread out
geographically and numbered in the thousands. The
particular Acts at issue applied to Indians that did not
constitute an organized tribe or other easily identified and
stable beneficiary group. If claimants’ view about de-
scendants and proceeds were right, simply sorting out
who was owed money, as well as when they were to be
paid and how (instructions absent from the statutes),
would, by the early 1980s, have imposed a tremendous
burden on the Department of the Interior and, then, on
any court called on to review Interior’s actions. 1 Given
the inevitable exacerbation of such difficulties over time,
a more explicit direction from Congress is needed to
justify inferring not just a grant of discretionary authority
but a mandate enforceable in court through damages.
For these reasons, we are persuaded that, for the
claim at issue, there is “no warrant from any relevant
statute or regulation to conclude that [Interior’s] conduct
implicated a duty enforceable in an action for damages
under the Indian Tucker Act.” Navajo I, 537 U.S. at 514.
That conclusion requires that we reverse the judgment of
the Claims Court on this claim.
2
We would reverse in any event on an independent
ground: claimants filed this claim too late. Claimants
filed this suit in 2003, more than twenty years after the
pre-1980 revenues were disbursed to the three communi-
1 In addition to the revenues that the government
held and ultimately paid to the communities, some money
earned from leasing was apparently paid directly to third
parties. There is no indication that claimants ever object-
ed to this practice, yet their theory would seem to em-
brace those funds.
WOLFCHILD v. US 17
ties in 1981 and 1982. The presentation of the claim was
out of time under the six-year statute of limitations, 28
U.S.C. § 2501, unless, as the Claims Court concluded, it
was rendered timely by the Indian Trust Accounting
Statute (ITAS). See Wolfchild, 96 Fed. Cl. at 332-35. The
ITAS, which has been included in appropriations acts
since 1990, provides that “notwithstanding any other
provision of law, the statute of limitations shall not com-
mence to run on any claim . . . concerning losses to or
mismanagement of trust funds, until the affected tribe or
individual Indian has been furnished with an accounting
of such funds from which the beneficiary can determine
whether there has been a loss.” E.g., Pub. L. No. 108-108,
117 Stat. 1241, 1263 (2003). Unlike the Claims Court,
however, we conclude for at least two reasons that the
ITAS does not apply to this claim—a question of law, see
Gillig v. Nike, Inc., 602 F.3d 1354, 1358 (Fed. Cir. 2010).
First, the claim to pre-1980 revenues is not a “claim[]
concerning . . . losses to or mismanagement of trust
funds.” The claim does not involve “trust funds” because
no trust duty applied to this money, as we held in 2009.
Wolfchild, 559 F.3d at 1255. The Claims Court ruled that
the funds nevertheless fell within the purview of the ITAS
because they were deposited and held in Treasury ac-
counts that were sometimes referred to as “trust” ac-
counts and an Interior regulation, 25 C.F.R. § 115.002,
defines “trust funds” to include “any . . . money that the
Secretary must accept into trust.” Wolfchild, 96 Fed. Cl.
at 331-35. But “trust funds” under the statute naturally
refers to funds subject to certain substantive duties, not to
the labels on or handling of Treasury accounts. The
funds at issue here were not subject to a trust duty. And
the cited regulation undermines, rather than supports,
claimants’ position, because these were not funds that the
Secretary “must” have accepted into trust. This claim
does not concern “trust funds.”
18 WOLFCHILD v. US
Second, even if the funds at issue were trust assets,
the claim made here would not be the sort of claim for
which a final accounting would be necessary to put a
plaintiff on notice of a claim, because claimants knew or
should have known that the money was publicly distrib-
uted in 1981 and 1982. The ITAS says that the statute of
limitations does not commence to run for claims “concern-
ing losses to or mismanagement of trust funds” until the
beneficiary receives “an accounting . . . from which [it] can
determine whether there has been a loss.” Consistent
with the reason for the enactment, as explained in Sho-
shone Indian Tribe v. United States, 364 F.3d 1339, 1346-
48 (Fed. Cir. 2004), the two quoted phrases are properly
read together: the claims about “losses” or “mismanage-
ment” that are protected by this provision are those for
which an accounting matters in allowing a claimant to
identify and prove the harm-causing act at issue; other-
wise, the ITAS would give claimants the right to wait for
an accounting that they do not need. When a claim
concerns an open repudiation of an alleged trust duty, “a
‘final accounting’ [i]s unnecessary to put the [claimants]
on notice of the accrual of [their] claim.” San Carlos
Apache Tribe v. United States, 639 F.3d 1346, 1355 (Fed.
Cir. 2011) (relying on Shoshone). That description fits
this case: claimants did not need an accounting in order
to “determine whether there ha[d] been a loss” because
the funds at issue were openly disbursed in 1981 and
1982. For that reason as well, the ITAS does not save this
claim from untimeliness.
B
The two cross-appeals, filed by claimants, concern a
series of proposed claims principally asserted under (1)
the 1863 Acts, (2) the 1851 and 1858 treaties, and (3) the
Indian Non-Intercourse Act. We affirm the Claims
Court’s determination that claimants have failed to
establish a viable cause of action under any of these (or
other) authorities.
WOLFCHILD v. US 19
1
We begin with the 1863 Acts. The full text of Section
9 of the February Act provides:
[T]he Secretary of the Interior is hereby author-
ized to set apart of the public lands, not otherwise
appropriated, eighty acres in severalty to each in-
dividual of the before-named bands who exerted
himself in rescuing the whites from the late mas-
sacre of said Indians. The land so set apart shall
not be subject to any tax, forfeiture, or sale, by
process of law, and shall not be aliened or devised,
except by the consent of the President of the Unit-
ed States, but shall be an inheritance to said Indi-
ans and their heirs forever.
Act of Feb. 16, 1863, ch. 37, § 9, 12 Stat. 652, 654.
Although repackaged in several proposed causes of ac-
tion, claimants make two basic claims under this provi-
sion, separately premised on each of its two sentences.
First, they argue that the opening sentence, which au-
thorizes the Secretary to set aside 80 acres of land to each
loyal Sioux, imposed a duty to set aside such lands—a
duty that the Secretary breached by not doing so. Second,
and in tension with the first point, claimants contend that
certain actions taken in 1865 actually did set aside land
for the loyal Sioux under the statute, thereby giving rise
to the more concrete rights specified in the provision’s
second sentence. We conclude that claimants have failed
to establish the viability of either claim. 2
2 Apart from claims to damages, claimants also
seek affirmative relief under 28 U.S.C. § 1491(a)(2) relat-
ed to the land that they believe they are owed under the
Acts. Putting aside what our analysis of the Act may
imply about the merits of that contention, it fails because
relief under subsection (a)(2) must be “an incident of and
20 WOLFCHILD v. US
The analysis of the first sentence’s declaration that
the Secretary “is hereby authorized to set apart” parcels
of land for the loyal Sioux is straightforward. That decla-
ration is simply too discretionary to support a viable claim
for damages on its own. See Wolfchild, 101 Fed. Cl. at 70-
73. We have long recognized that statutes granting
officials “substantial discretion” are “not considered
money-mandating,” Price v. Panetta, 674 F.3d 1335, 1339
(Fed. Cir. 2012), and this provision fits squarely within
that rule. It does not impose any duty on the Secretary to
make the land grants that it authorizes. It therefore
cannot “‘fairly be interpreted as mandating compensation
for damages sustained’” from a failure to provide such
lands. Navajo II, 556 U.S. at 291. 3
Claimants fare no better in their attempt to make out
a claim based on the more absolute rights set forth in the
statute’s second sentence. Because those rights attach
only to land that was “set apart” under the authority
granted in the provision’s first sentence, any such claim
must be premised on affirmative actions taken under that
authority. Act of Feb. 16, 1863, § 9, 12 Stat. at 654.
Claimants contend that the Secretary did in fact take the
necessary steps to set apart land under the Act, focusing
our attention on certain events in 1865. Specifically, they
contend that the Secretary identified 12 sections of land
collateral to” any damages judgment, so that this conten-
tion falls with the damages claims.
3 Neither claimant group seems to have argued to
this court that the March 1863 Act independently creates
an applicable money-mandating duty, but the same
analysis would apply. Providing that it “shall be lawful”
for the Secretary to locate loyal Sioux on certain lands,
Act of Mar. 3, 1863, ch. 119, § 4, 12 Stat. 819, is just
another way of saying that the Secretary is authorized to
do so.
WOLFCHILD v. US 21
for the loyal Sioux and withdrew them from public sale,
which sufficiently “set apart” those lands to make the
section’s second sentence applicable.
Those 1865 actions, however, cannot support a timely
claim for relief, regardless of whether they could qualify
as having “set apart” land under the Act. After it took the
steps toward conveyance of the 12 sections to the desig-
nated Indians in 1865, the government terminated the
process and sold the parcels to others. Claimants have
not alleged error in the Claims Court’s finding that all of
the 12 sections were sold no later than 1895, which was
apparently not disputed by any claimants in the Claims
Court. See Wolfchild, 101 Fed. Cl. at 74. The six-year
statute of limitations, therefore, has long since run.
Because claimants cannot state a claim under either
sentence of Section 9 of the February 1863 Act, we affirm
the Claims Court’s conclusion that claimants “lack any
claim grounded in the 1863 Acts.” Wolfchild, 101 Fed. Cl.
at 76. 4
2
In addition to the claims brought directly under the
1863 Acts, some claimants also ask us to recognize a
separate claim based on an alleged violation of rights
granted in the 1851 and 1858 treaties. We decline to do
so. First, it does not appear that claimants asserted an
independent, treaty-based claim in the Claims Court.
That court never addressed a separate cause of action for
treaty rights in either of its extensive decisions, and
claimants have not pointed to any proposed complaint
4 Based on statements in our 2009 opinion, Wolf-
child, 559 F.3d at 1232, 1241, the parties and the Claims
Court have disputed whether the March 1863 Act super-
seded Section 9 of the February 1863 Act. We find it
unnecessary to resolve that dispute.
22 WOLFCHILD v. US
attached to a motion to amend in which such a claim was
asserted. The claim is therefore waived. E.g., San Carlos
Apache Tribe, 639 F.3d at 1354-55.
In any event, claimants have not shown that any per-
ceived third-party rights arising under the treaties sur-
vived the February 1863 Act. (Claimants seek to obtain
property they say should have been, but was never,
granted under the treaties; their claim does not concern
property that was granted in fee under the treaties before
the annulment, with vesting of rights then secured by
state or other non-treaty law.) The February 1863 Act is
categorical in pronouncing that “all treaties” entered into
with the Minnesota Sioux “are hereby declared to be
abrogated and annulled, so far as said treaties or any of
them purport to impose any future obligation on the
United States,” before going on to declare that “all lands
and rights of occupancy” in Minnesota and “all annuities
and claims heretofore accorded to said Indians” are “for-
feited.” Act of Feb. 16, 1863, ch. 37, 12 Stat. 652. The
provision makes no exemption for the loyal Sioux or any
other individual Indians.
Claimants nevertheless contend that their claims sur-
vived the annulment. Their theory appears to be that,
because Section 9 of the February 1863 Act was intended
to provide the loyal Sioux a substitute for lost treaty
rights and was not implemented, they may turn instead
to the treaties as a source of actionable rights. But the
annulment of the treaties was not conditional on Section
9, including any discretionary acts authorized by Section
9, and claimants must therefore assert rights under the
statute, not the treaties. We can find no basis to hold that
the asserted third-party treaty rights survived the Febru-
ary 1863 Act.
3
The final source of proposed claims that we address is
the Indian Non-Intercourse Act (INIA), which provides
WOLFCHILD v. US 23
that “[n]o purchase, grant, lease, or other conveyance of
lands, or of any title or claim thereto, from any Indian
nation or tribe of Indians, shall be of any validity in law
or equity, unless the same be made by treaty or conven-
tion entered into pursuant to the Constitution.” 25 U.S.C.
§ 177. Claimants invoke this statute in support of two
sets of claims: (1) “land” claims alleging that the govern-
ment improperly sold lands to which claimants were
entitled under the 1851 and 1858 treaties and the 1863
Acts and improperly transferred land to the three com-
munities that had been purchased for claimants under
the 1888-1890 Acts and the 1934 IRA; and (2) “fund”
claims alleging that INIA coverage imposes a fiduciary
duty on the United States that requires disbursement of
revenues to claimants rather than the three communities.
We conclude that, even if the INIA imposes a money-
mandating duty on the United States (which we need not
decide), none of these theories supports a viable claim
under the statute. 5
First, it does not appear that there is anything left to
sustain an INIA claim once the assertions of property
rights under the 1888-1890 Acts, the 1863 Acts, and the
1851 and 1858 treaties are rejected. The INIA prohibits
the improper disposition of Indian lands, which necessari-
ly presumes that the complaining party holds “lands, or
. . . any title or claim thereto.” 25 U.S.C. § 177. Without a
5 To the extent that the claim to “funds” earned
from the land rests in part on other authorities, our
conclusion does not change. The 1888-1890 Acts and the
1863 Acts cannot support such a claim for the same
reasons set forth in sections A.1 and B.1, supra. Nor do
claimants have a viable claim to any revenue produced on
the additional land purchased for the three communities
under the IRA, because, as they acknowledge, the gov-
ernment bought that land and took it into trust for the
three communities from the outset.
24 WOLFCHILD v. US
source of extant property rights in any lands, claimants
no longer have a basis for alleging this essential prerequi-
site to claiming an actionable conveyance under the INIA.
Second, even if claimants could identify a relevant
property right, there is no sufficient basis for finding that
claimants constitute a “tribe” within the meaning of the
INIA. Specifically, claimants, whose defining characteris-
tic is descent from Indians that broke their original tribal
relations, have not shown error in the Claims Court’s
conclusion that, at all relevant times, they have lacked
the unitary organization required to be a tribe. See
Wolfchild, 101 Fed. Cl. at 65-69. Claimants attempt to
overcome the court’s finding by relying centrally on the
contention that the beneficiaries of pre-1980 “reservation”
lands qualify as a tribe. They point to those reservations
as proof, for example, that the Indians occupied a suffi-
ciently defined territory and had the requisite, unified
political structure. But those arguments cannot help the
claimants here because, even if the class of beneficiaries
of the pre-1980 “reservation” lands qualified as one or
more than one tribe under the INIA, that class simply is
not coincident—though it overlaps—with the class of
claimants in this case. Indeed, that is the whole reason
for this lawsuit—the three communities that occupied and
benefited from the pre-1980 reservations are not identical
to this group of claimants. Accordingly, these claimants
cannot look to those reservations in order to support a
finding that they are a tribe under the INIA. We conse-
quently affirm the Claims Court’s judgment on these
claims.
CONCLUSION
When this case began, it was more narrowly focused:
claimants had one principal theory. Having lost on that
theory in 2009, claimants developed a number of alterna-
tive theories rooted in a variety of authorities. We now
conclude that none of the new theories breathes life into
WOLFCHILD v. US 25
this case because none supports an actionable claim for
relief under governing law. We therefore reverse the
Claims Court’s judgment against the United States on the
claim to pre-1980 money and affirm its judgment against
claimants on the remainder of the proposed claims.
COSTS
No costs.
AFFIRMED IN PART, REVERSED IN PART
United States Court of Appeals
for the Federal Circuit
______________________
SHELDON PETERS WOLFCHILD, ERNIE PETERS
LONGWALKER, SCOTT ADOLPHSON, MORRIS J.
PENDLETON, BARBARA FEEZOR BUTTES,
WINIFRED ST. PIERRE FEEZOR, AUTUMN
WEAVER, ARIES BLUESTONE WEAVER, ELIJAH
BLUESTONE WEAVER, RUBY MINKEL, LAVONNE
A. SWENSON, WILLIS SWENSON, AARON
SWENSON, BEVERLY M. SCOTT, LILLIAN
WILSON, MONIQUE WILSON, SANDRA
COLUMBUS GESHICK, CHERYL K. LORUSSO,
JENNIFER K. LORUSSO, CASSANDRA
SHEVCHUK, JASON SHEVCHUK, JAMES PAUL
WILSON, EVA GRACE WILSON, BENITA M.
JOHNSON, AND KEVIN LORUSSO,
Plaintiffs-Cross Appellants,
AND
ANITA D. WHIPPLE et al., Descendants of Lucy
Trudell, BONNIE RAE LOWE, et al., Descendants of
Joseph Graham, et al., LENOR ANN SCHEFFLER
BLAESER et al., Descendants of John Moose, AND
MARY BETH LAFFERTY, et al.,
Plaintiffs,
AND
COURSOLLE DESCENDANTS AND ROCQUE AND
TAYLOR DESCENDANTS,
Plaintiffs,
2 WOLFCHILD v. US
AND
DEBORAH L. SAUL, LAURA VASSAR, et al., LYDIA
FERRIS et al., DANIEL M TRUDELL, et al.,
ROBERT LEE TAYLOR, et al., AND DAWN HENRY,
Plaintiffs,
AND
RAYMOND CERMAK, SR., (acting individually and
under a power of attorney for Stanley F. Cermak,
Sr.), MICHAEL STEPHENS, et al., JESSE CERMAK,
et al., DENISE HENDERSON, DELORES
KLINGBERG, SALLY ELLA ALKIRE, PIERRE
ARNOLD, JR., AND GETRUDE GODOY et al.,
Plaintiffs,
AND
JOHN DOES 1-30, WINONA C. THOMAS ENYARD,
AND KITTO, et al.,
Plaintiffs,
AND
FRANCINE GARREAU, et al.,
Plaintiffs,
AND
FRANCIS ELAINE FELIX,
Plaintiff,
AND
KE ZEPHIER, et al.,
Plaintiffs,
WOLFCHILD v. US 3
AND
LOWER SIOUX INDIAN COMMUNITY,
Plaintiff,
AND
PHILIP W. MORGAN,
Plaintiff,
AND
REBECCA ELIZABETH FELIX,
Plaintiff,
AND
VERA A. ROONEY, et al.,
Plaintiffs,
AND
DANNY LEE MOZAK,
Plaintiff-Cross Appellant,
AND
DAWN BURLEY, et al.
Plaintiffs-Cross Appellants,
AND
HARLEY ZEPHIER, SR.,
Plaintiff-Cross Appellant,
AND
4 WOLFCHILD v. US
JOHN DOES 1-433,
Plaintiffs-Cross Appellants,
AND
JULIA DUMARCE, et al.,
Plaintiffs-Cross Appellants,
AND
RAYMOND COURNOYER, SR., et al., JERRY
ROBINETTE, et al., SANDRA KIMBELL, et al.,
CHARLENE WANNA, et al., AND LESLIE LEE
FRENCH, et al.,
Plaintiffs-Cross Appellants,
AND
KRISTINE ABRAHAMSON,
Plaintiff-Cross-Appellant,
AND
VICTORIA ROBERTSON VADNAIS,
Plaintiff-Cross Appellant,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2012-5035, -5036, -5043
______________________
Appeals from the United States Court of Federal
Claims in consolidated case nos. 03-CV-2684 and 01-CV-
0568, Judge Charles F. Lettow.
WOLFCHILD v. US 5
______________________
REYNA, Circuit Judge, concurring-in-part and dissenting-
in-part.
This case is ingrained in the intertwined, inextricable
relationship between the American Indian and the United
States. The question we are called to resolve is whether
promises made to a small group of American Indians
created obligations on the part of the United States that
remain in effect. The majority looks primarily at the law
and determines that the United States created no such
obligations. I look at the both history and the law and
find that the United States made certain promises of
compensation that were memorialized by Congress in
laws that it passed with the specific intent to create
binding obligations to compensate the small band of
American Indians. Because I believe those obligations
remain in effect and provide a jurisdictional basis for
appellants’ lawsuit against the United States, I respect-
fully dissent. I concur with the majority on the remaining
issues.
I. HISTORICAL BACKGROUND
The majority glosses over key historical circumstances
that are critical to interpret the 1888-1890 Appropriations
Acts. My review begins and ends with those historical
circumstances.
A. Broken Treaties and the Sioux Uprising
On September 29, 1837, the Sioux and the United
States entered into a treaty whereby the Sioux agreed to
cede to the United States all of their lands east of the
Mississippi. In consideration, the United States’ agreed
that it would invest $300,000 for the benefit of the Sioux.
Under the Treaty, the United States was required to pay
an annuity to the Sioux “forever.” Wolfchild v. United
States, 96 Fed. Cl. 302, 312 (Fed. Cl. 2010) (“Claims Court
6 WOLFCHILD v. US
Remand Decision”) (quoting Treaty of Sept. 29, 1837, arts.
I−II, 7 Stat. 538). Thereafter, in subsequent treaties, the
Sioux ceded lands in the territories of Minnesota and
Iowa in exchange for the United States’ promise of “per-
petual” peace and friendship. Id. (quoting Treaty of Aug.
5, 1851, arts. I−II, 10 Stat. 954 and Treaty of July 23,
1851, arts. II−IV, 10 Stat. 949).
As relevant for our purposes, the Mdewakanton band
was among the Sioux that entered into the treaties with
the United States. By 1858, the Mdewakanton had
agreed to occupy a reservation along the Minnesota River
in south-central Minnesota. Id. (quoting Treaty of June
19, 1858, arts. I−III, 12 Stat. 1031).
In 1862, the Sioux revolted after the United States
failed to furnish promised money and supplies under the
terms of the treaties. The uprising resulted in the death
of more than 500 white settlers and substantial property
damage. Among other things, the United States viewed
the revolt as a breach by the Sioux of the agreement to
remain peaceful with the United States.
But not all Sioux broke the pledge to remain peaceful.
Some of the Sioux, in particular a small number of the
Mdewakanton (the “Loyal Mdewakanton”), actively
defended white settlers and were later credited as having
saved white settlers’ lives. 1 The record is undisputed that
1 The Mdewakanton are known as a band of Minne-
sota Sioux. I refer to them as the “Loyal Mdewakanton”
in recognition of their choice to sever their tribal relation-
ship during the Sioux uprising and remain loyal to the
United States by either not participating in the revolt or
taking affirmative actions to save the white settlers on
the Minnesota frontier. See Wolfchild v. United States,
101 Fed. Cl. 54, 59-60 (Fed. Cl. 2011). The plaintiffs,
referred to herein as “the Wolfchild plaintiffs,” are ap-
proximately 20,750 lineal descendants of the Loyal
WOLFCHILD v. US 7
at the risk of their own safety, the Loyal Mdewakanton
prevented greater bloodshed and property damage. But
the courageous acts of the Loyal Mdewakanton came with
a price. Siding with the white settlers meant breaking
away and severing ties with the Sioux tribe, including the
Mdewakanton band.
In response to the Sioux uprising, the United States
annulled its treaties with the Sioux, confiscated Sioux
lands in Minnesota, and moved the Sioux west, outside
the limits of then existing states. As for the Loyal
Mdewakanton, their lands were confiscated along with all
the other Sioux lands in Minnesota, and their annuity
valued at approximately $1,000,000 was terminated. In
addition, the Loyal Mdewakanton “could not return to
their tribe . . . or they would be slaughtered for the part
they took in the outbreak.” Claims Court Remand Deci-
sion, 96 Fed. Cl. at 313 (quoting Cong. Globe, 38th Cong.,
1st Sess. 3516 (1864)). As a result, the Loyal
Mdewakanton were left isolated, poverty-stricken and
homeless.
B. Congressional Efforts to Compensate the Loyal
Mdewakanton
In 1863, Congress took its first action intended to
compensate and reward the Loyal Mdewakanton for their
loyalty during the Sioux uprising by enacting a statute
that provided public lands to serve as “an inheritance to
said Indians and their heirs forever.” Act of Feb. 16,
1863, ch. 37, § 9, 12 Stat. 652, 654. Two weeks later,
Congress passed a second statute that authorized the
President to set apart agricultural lands for the Sioux
who exerted themselves in rescuing the whites from
massacre. See Act of Mar. 3, 1863, ch. 119, § 1, 12 Stat.
819. White settlers refused to permit any Sioux from
Mdewakanton. Claims Court Remand Decision, 96 Fed.
Cl. at 310.
8 WOLFCHILD v. US
resettling in Minnesota and became opposed the author-
ized land purchases. The two 1863 acts were never re-
pealed, yet the Loyal Mdewakanton never realized the
land benefits conferred under those acts.
In 1886, after conducting a census to establish which
individuals had remained loyal to the United States
during the Sioux uprising, Congress again attempted to
provide the Loyal Mdewakanton with viable long-term
relief. Congress enacted Appropriations Acts in 1888,
1889 and 1890 that included specific provisions for land
proceeds to benefit the Loyal Mdewakanton. In particu-
lar, the 1888-1890 Appropriations Acts memorialized
Congress’s renewed efforts to provide relief to the desti-
tute Loyal Mdewakanton.
* * *
In 1888, Congress appropriated $20,000 for the De-
partment of the Interior (“Interior”) to purchase land,
cattle, horses, and agricultural implements for the “full-
blood” Loyal Mdewakanton. Act of June 29, 1888, ch. 503,
25 Stat. 217, 228−29 (“1888 Act”). In 1889, Congress
appropriated an additional $12,000 for the Loyal
Mdewakanton. It also enacted a second Act that was
substantially similar to the 1888 Act, but additionally
required the Secretary of the Interior to expend the
money equally among the Loyal Mdewakanton and man-
dated that any money not expended in one fiscal year be
expended in a future fiscal year. Act of Mar. 2, 1889, ch.
412, 25 Stat. 980, 992−93 (“1889 Act”).
The 1889 Act, like the 1888 Act, indicated that the
appropriated funds should be used for the benefit of the
Loyal Mdewakanton. Id. More specifically, the 1889 Act
used the imperative word “shall” to establish Interior’s
duty with respect to specific appropriations and the Loyal
Mdewakanton’s right to the money set aside for “lands,
cattle, horses, implements, seeds, food, or clothing.” Id.
The Act also established specific accounting procedures
WOLFCHILD v. US 9
and eligibility requirements for the expenditure of funds.
The 1889 Act reads in relevant part:
For the support of the full-blood Indians in Min-
nesota heretofore belonging to the Mdewakanton
band of Sioux Indians, who have resided in said
State since the twentieth day of May eighteen
hundred and eighty-six, or who were then en-
gaged in removing to said State, and have since
resided therein, and have severed their tribal re-
lations, twelve thousand dollars, to be expended
by the Secretary of the Interior . . . Provided,
That if the amount in this paragraph appropriat-
ed, or any portion of the sum appropriated for the
benefit of these same Indians by said act of June
twenty-ninth, eighteen hundred and eighty-eight,
shall not be expended within the fiscal year for
which either sum was appropriated, neither shall
be covered into the Treasury, but shall, notwith-
standing, be used and expended for the purposes
for which the same amount was appropriated and
for the benefit of the above-named Indians: And
provided also, That the Secretary of the Interior
may appoint a suitable person to make the above-
mentioned expenditure under his direction; and
all of said money which is to be expended for
lands, cattle, horses, implements, seeds, food, or
clothing shall be so expended that each of the In-
dians in this paragraph mentioned shall receive,
as nearly as practicable an equal amount in value
of this appropriation and that made by said act of
June twenty-ninth, eighteen hundred and eighty-
eight: And provided further, That as far as practi-
cable lands for said Indians shall be purchased in
such locality as each Indian desires, and none of
said Indians shall be required to remove from
where he now resides and to any locality against
his will.
10 WOLFCHILD v. US
Id. (emphases added).
The Act enacted in 1890, appropriating $8,000, is sub-
stantially similar to the earlier Acts, but also recognizes
that the designated funds are for the support of full and
mixed blood Loyal Mdewakanton who have “severed their
tribal relations,” and as such “shall receive” the appropri-
ated funds in as close to “an equal amount” as practicable.
Act of Aug. 19, 1890, ch. 807, 26 Stat. 336, 349 (“1890
Act”).
Interior used the appropriated funds to purchase
lands in three distinct areas of Minnesota. As the majori-
ty notes, in the years that followed, these three parcels of
land developed into the three distinct communities of the
Shakopee Mdewakanton Sioux Community, the Prairie
Island Indian Community, and the Lower Sioux Commu-
nity (“the three communities”). The United States now
holds the lands in trust for the three communities, to
which many descendants of the Loyal Mdewakanton do
not belong.
II. THE PREVIOUS FEDERAL CIRCUIT PANEL DECISION
A panel of this Court previously held that the funds
appropriated under the Appropriations Acts are subject to
statutory use restrictions and did not create a trust or
convey ownership rights in the lands purchased with
those funds. See Wolfchild v. United States, 559 F.3d
1228, 1255 (Fed. Cir. 2009) (“Wolfchild I”). The panel,
however, did not address the money-mandating issue
before us today. Specifically, the Wolfchild I panel explic-
itly declined to address whether it was lawful for Interior
to transfer to the three communities the funds derived
from the Mdewakanton lands:
The parties devote some attention to the question
whether it was lawful for the Interior Depart-
ment, following the 1980 Act, to transfer to the
three communities approximately $60,000 in
WOLFCHILD v. US 11
funds that had been collected as proceeds from the
sale, use, or leasing of certain of the 1886 lands,
given that the 1980 Act was silent as to the dispo-
sition of those funds. See Wolfchild I, 62 Fed.Cl.
at 549−50. That issue does not affect our analysis
of the two certified questions, however, and we
leave that issue to be addressed, to the extent nec-
essary, in further proceedings before the trial
court.
Wolfchild I, 559 F.3d at 1259 n.14 (emphases added). On
remand, consistent with the guidance of this Court, the
Wolfchild plaintiffs amended their complaint to assert
that the statutory use restrictions vested the class of
plaintiffs with rights to pre-1980 revenues derived from
the lands purchased for the benefit of the Loyal
Mdewakanton.
The majority holds that the decision in Wolfchild I de-
cided and foreclosed the issue presented to us in this case.
See Maj. Op. 15. I disagree. It is clear to me that the
Wolfchild I panel explicitly decided not to reach the issue
that is before us today and, indeed, cleared the way for
the plaintiffs to amend the complaint to raise the issue.
Wolfchild I, 559 F.3d at 1259 n.14.
III. ANALYSIS OF MONEY-MANDATING DUTY
A. The Indian Tucker Act
The majority interprets the 1888-1890 Appropriations
Acts as conferring the Secretary of the Interior with
discretion on how to distribute the pre-1980 revenues
derived from appropriated lands, a discretion that frees
the United States from its promise to compensate the
Loyal Mdewakanton and their descendants. See Maj. Op.
14-15. In my view, the text of the Acts, purpose of the
Acts, and judicial recognition of the relationship between
the government and the Tribes support the conclusion
that the Acts “can be fairly interpreted” or are “reasona-
12 WOLFCHILD v. US
bly amenable” to the interpretation that they mandate
compensation by the government. See United States v.
Navajo Nation, 556 U.S. 287, 290 (2009) (citations omit-
ted); United States v. White Mountain Apache Tribe, 537
U.S. 465, 473 (2003) (clarifying that “a fair inference will
do”). Here, there exists more than a fair inference that
the 1888-1890 Acts impose a money-mandating duty on
the government.
1. Plain Reading of the Appropriations Acts
I disagree that the Appropriations Acts’ grant of au-
thority to the Secretary to generate leasing revenues
cannot support a fair inference that, once revenues are
generated, the Secretary had a duty to spend those reve-
nues for the benefit of the Loyal Mdewakanton. See Maj.
Op. at 15. In my view, because the lands were purchased
for the benefit of the Loyal Mdewakanton, any revenues
generated from those lands necessarily belonged to the
Loyal Mdewakanton.
Jurisdiction under the Indian Tucker Act is not lim-
ited to statutory schemes that leave the government “no
discretion over payment of claimed funds.” Samish
Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed.
Cir. 2005). Certain discretionary schemes may support
claims if they provide clear standards for paying money to
recipients. Id. (citations omitted). Here, the Appropria-
tions Acts provide clear standards by directing the Secre-
tary to spend the appropriated funds in a way such that
each of the Loyal Mdewakanton (who “have severed their
tribal relations”) receives “an equal amount in value.”
1889 Act, 25 Stat. at 993; 1890 Act, 26 Stat at 349. The
Acts also provide that, to the extent the appropriations
were spent on land, the land “shall be purchased in such
locality as each Indian desires.” Id.
Congress’s use of the word “shall” invokes a presump-
tion that the provision is money mandating. See Greenlee
County, Ariz. v. U.S., 487 F.3d 871, 877 (Fed. Cir. 2007)
WOLFCHILD v. US 13
(citations omitted). The majority ignores that the Appro-
priations Acts repeatedly use the word “shall” to convey,
for example, that the funds “shall be so expended” for the
benefit of the Loyal Mdewakanton, and that the recipients
“shall receive” the funds in “equal amount[s].” See 25
Stat. at 992-93. This drafting choice implies that once
certain condition precedents are met, the Secretary is
expected to adhere to Congress’s directive. See Doe v.
U.S., 463 F.3d 1314, 1325 (Fed. Cir. 2006) (finding the
source of law money-mandating where the statute used
“shall”).
The majority concludes that the use restrictions do
not extend to land revenues by equating the result to a
trust, and that the Wolfchild I panel held the 1888-1890
Appropriations Acts did not create such a trust. See Maj.
Op. at 15; Wolfchild I, 559 F.3d at 1255. I agree with the
Claims Court that our previous decision cannot be read to
foreclose the issue of whether the use restrictions, without
being considered a trust, can serve as the basis for a
legitimate claim by the plaintiffs, particularly in view of
the previous panel’s explicit warning that it was not
deciding the issue. Claims Court Remand Decision, 96
Fed. Cl. at 328; Wolfchild I, 559 F.3d at 1259. “Only the
issues actually decided—those within the scope of the
judgment appealed from, minus those explicitly reserved
or remanded by the court—are foreclosed from further
consideration.” Engel Indus., Inc. v. Lockformer Co., 166
F.3d 1379, 1383 (Fed. Cir. 1999) (citations omitted).
Again, to be clear, the panel in Wolfchild I neither decided
the issue of the applicability of the use restrictions to pre-
1980 proceeds, nor foreclosed the issue, but expressly
reserved it for consideration in later litigation involving
the same parties.
Because the language of the Acts obligates the gov-
ernment to act for the benefit of the Loyal Mdewakanton,
and the Wolfchild plaintiffs have alleged facts showing
that the government failed to act on behalf of the Loyal
14 WOLFCHILD v. US
Mdewakanton, I would affirm the Claim Court’s conclu-
sion that the amended complaint states a viable claim for
damages based on the statutory use restrictions on pre-
1980 funds. 2
2. Historical Context of the Appropriations Acts
The historical context of the 1888-1890 Appropria-
tions Acts is useful in understanding the government’s
obligations to the Loyal Mdewakanton. My review of the
legislative history, internal memoranda reflecting Interi-
or’s contemporaneous policy choices, and interpretive
canons favoring protection for Native American claimants
leads me to conclude that Congress intended the Appro-
priations Acts to provide a money-mandating duty.
Where, as here, we have historical tools that illuminate
Congress’s true intent in alleviating the plight of a dis-
placed Tribal group, we should interpret the statutes
taking into account the structure and underlying values of
the scheme at the time it was enacted. See, e.g., Steel-
workers v. Weber, 443 U.S. 193, 201 (1979) (holding that
the statute prohibiting racial discrimination must “be
read against the background of the legislative history of
Title VII and the historical context from which the Act
arose”); District of Columbia v. Heller, 554 U.S. 570,
599−600 (2008) (cautioning against ignoring the historical
realities surrounding the right to bear arms at the time
the Second Amendment was codified as a right).
First, the legislative history confirms that the over-
arching purpose of the 1888-1890 Appropriations Acts
2 In 1980, Congress enacted legislation declaring
that the United States would thereafter hold the lands in
trust for the three communities. Act of Dec. 19, 1980,
Pub. L. No. 96-557, § 1, 94 Stat 3262 (“1980 Act”). There
is nothing in the text or legislative history of the 1980 Act
that repeals or otherwise overcomes the duty imposed on
the United States by the 1888-1890 Appropriations Acts.
WOLFCHILD v. US 15
was to set aside resources that honor the sacrifices of the
Loyal Mdewakanton following the Sioux uprising. For
example, in 1888, 1889, and 1890, the proposed legislation
was placed under the heading of “Fulfilling Treaty Stipu-
lations with and Support of Indian Tribes,” rather than a
more general “Miscellaneous” or “Miscellaneous Supports”
heading. See Claims Court Remand Decision, 96 Fed. Cl.
at 340 (citing 25 Stat. at 219; 25 Stat. at 982; 26 Stat. at
338). The Loyal Mdewakanton and their descendants
were afforded a specific set of rights that constituted
“replacements” for the “annuities and other benefits” the
government had not delivered even after the Loyal
Mdewakanton maintained their treaty obligations
through a period of acute violence. See id. (recognizing
the Appropriations Acts as “a substitution for the treaty
benefits of which the Loyal Mdewakanton had been
deprived.”).
Contemporaneous comments reveal that during the
1860s the Minnesota frontier had been so ablaze with
negative sentiment following the Sioux uprising that no
Tribal group—not even the steadfastly loyal—would
collect their share of promised annuity funds. 3 Senator
MacDonald, the sponsor of the 1888 Appropriation Act,
aptly explained Congress’s intent in passing the Acts:
[A] few of . . . [the Sioux] remained friendly to the
whites and became their trusted allies and de-
fenders, and . . . a number of them did valuable
3 For example, in 1862, the Governor of Minnesota,
gave a speech to the State Legislature calling for the
extermination or total displacement of the Sioux. J.A.
3453 (“The Sioux Indians of Minnesota must be extermi-
nated or driven forever beyond the borders of the State.”);
see also J.A. 2387−88 (A New York Times editorial de-
scribing the scalping of “red devils” as a “state right” in
Minnesota).
16 WOLFCHILD v. US
service in protecting our people and their proper-
ty, and in saving many lives . . . . They have ever
since had claims upon not only our gratitude but
that of the nation at large, which ought long ago
to have been recognized and partially, at least,
compensated for their invaluable services . . . I
am almost ashamed to say it, but the fact is that
no exception [to the Act of Feb. 16, 1863] was
made, even in favor of these friendly Indians.
Claims Court Remand Decision, 96 Fed. Cl. at 340−41
(quoting 19 Cong. Rec. 2,976−77 (1888)). Senator Mac-
Donald’s statement of the bill’s purpose confirms that
Congress passed the 1888-1890 Appropriations Acts
because the rights of the Loyal Mdewakanton were ab-
ruptly annulled and subsequent legislative efforts to
remedy their misfortune were inadequate.
Second, the determination that the 1888-1890 Ap-
propriations Acts are not money-mandating is contrary to
the government’s own time-worn understanding that the
land-use restrictions obliged the government to spend
land proceeds for the benefit of the Loyal Mdewakanton.
As the Claims Court pointed out, for the last 90 years,
Interior has understood that if it were to assign the
benefits of the lands to other Indians, there would be
monetary repercussions for its breach in duties. See
Claims Court Remand Decision, 96 Fed. Cl. at 341−42,
348.
For example, in 1933, Interior recognized that the
land on which the three communities were situated “was
land purchased for the Mdewakanton Sioux . . . and their
descendants. It has been and can be assigned only to such
persons.” Id. at 344 (quoting Mem. From Charlotte T.
Westwood to Joe Jennings, Indian Reorganization (ap-
WOLFCHILD v. US 17
proximately dated Nov. 27, 1933)) (emphasis added). 4
Also, in 1950, an attorney for Interior confirmed that the
1888-1890 Appropriations Acts excluded other Indian
groups from monetary proceeds flowing from the restrict-
ed land:
In view of the provisions of the [Appropriations]
Acts. . . [the 1886 lands] may be assigned only to
members of the Mdewakanton Band of Sioux In-
dians residing in Minnesota, and such assignee
must have been a resident of Minnesota on May
20, 1886, or be a legal descendant of such resident
Indian.
Claims Court Remand Decision, 96 Fed. Cl. at 344 (citing
Mem. by Rex H. Barnes (July 24, 1950)); see also Mem.
from Daniel S. Boos (Mar. 17, 1969) (“Based on independ-
ent research I have concluded that these remarks [the
statements in the Barnes 1950 memorandum regarding
the lineal descendants’ entitlement] are correct.”).
4 Interior’s recognition of its duty to the descend-
ants of the Mdewakanton Sioux undermines the majori-
ty’s contention that any duty to the Loyal Mdewakanton
created by statute need not extend to future generations.
Maj. Op. 14 (concluding that the duty would only extend
to future generations if Congress included the word
“descendants”). Moreover, the language in the land use
certificates granting “heirs” of the assignee “exclusive use
and possession of said land” is in perfect alignment with
the first 1863 Act instructing that the designated land
should “be an inheritance to said Indians and their heirs
forever.” Act of Feb. 16, 1863, § 9, 12 Stat. at 654. The
land use certificates are also consistent with the actual
language of the Appropriations Acts, reciting that “fami-
lies” of the named Loyal Mdewakanton qualified as bene-
ficiaries. 1889 Act, 25 Stat. at 992-93; 1890 Act, 26 Stat.
at 349.
18 WOLFCHILD v. US
But the most telling statement—the one promulgated
by Interior most recently—is a 1970 opinion by the Assis-
tant Solicitor for Indian Legal Activities, who advised that
the distributions that the government later made to the
three communities would be unlawful:
[T]he land in question remains available only for
the use of qualified Mdewakanton Sioux Indians.
If it appears desirable to use the land by assigning
it to or for the benefit of other Indians, we suggest
that Congress should be asked to permit such ac-
tion by affirmative legislation. We know of no
means of accomplishing this by administrative ac-
tion, particularly over any objections of eligible
Mdewakanton Sioux Indians.
Claims Court Remand Decision, 96 Fed. Cl. at 344 (citing
Mem. by Charles M. Soller (Dec. 4, 1970)). In the 1970
memorandum, Interior considers whether the land-use
restrictions can be set aside, and offers that the Loyal
Mdewakanton are the proper beneficiaries of the land
unless Congress acts through legislation. This conclusion
of existing binding obligations created by the use re-
strictions further supports interpreting the use re-
strictions in the 1888-1890 Appropriations Acts as
imposing a money-mandating duty on revenues derived
from land purchases.
3. The Special Relationship Between the Government
and the Tribes
In my view, recognizing a money-mandating duty in
favor of the Loyal Mdewakanton is further commanded by
the special relationship between the United States and
the Tribes, as well as by the application of canons of
statutory interpretation that resolve language disputes in
favor of Tribal groups who, having endured a history of
rampant injustice, deserve the fullest protection under
the law. See U.S. v. Sioux Nation of Indians, 448 U.S.
371, 423 (1980) (supporting the Claims Court’s analysis
WOLFCHILD v. US 19
that the 1877 Act embodied an implied obligation of the
government to compensate a taking of tribal property set
aside for the exclusive use of the Sioux). The Supreme
Court recognizes that the relationship between the United
States and the Indian people is distinctive, “different from
that existing between individuals whether dealing at
arm’s length, as trustees and beneficiaries, or otherwise.”
U.S. v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2323
(2011) (quoting Klamath and Moadoc Tribes v. United
States, 296 U.S. 244, 254 (1935)); see also Cherokee Nation
v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall, C.J.)
(explaining that Indians’ “relation to the United States
resembles that of a ward to his guardian”). “Few con-
quered people in the history of mankind have paid so
dearly for their defense of a way of life.” Sioux Nation of
Indians, 448 U.S. at 423 (quoting R. Billington, Introduc-
tion, in SOLDIER AND BRAVE xiv (1963)).
I submit that the government’s unique relationship
with the Indian people obligates it to strictly honor the
land-use restrictions in the 1888-1890 Appropriations
Acts. See Arctic Slope Native Ass’n, Ltd. v. Sebelius, 699
F.3d 1289, 1298 (Fed. Cir. 2012) (citing United States v.
Mitchell, 463 U.S. 206, 225 (1983)). My view is supported
by the entrenched expectation that “statutes passed for
the benefit of dependent Indian tribes. . . are to be liberal-
ly construed, doubtful expressions being resolved in favor
of the Indians.” Blatchford v. Native Village of Noatak
and Circle Village, 501 U.S. 775, 795 (1991) (internal
citations omitted); Montana v. Blackfeet Tribe of Indians,
471 U.S. 759, 766 (1985). This canon of construction,
dating back to the earliest years of our Nation’s history, is
rooted in the unique relationship between the federal
government and the Indians, with the understanding that
Indians did not wield equal bargaining power when
earlier Treaties were negotiated and, as a consequence,
doubtful statutory expressions should be resolved in their
favor. See Hagen v. Utah, 510 U.S. 399, 423 n.1 (collect-
20 WOLFCHILD v. US
ing cases). With these principles in mind, there is not just
a “fair” inference that the 1888-1890 Appropriations Acts
are money-mandating, but rather, an unassailable cer-
tainty that they are so. The majority resists this conclu-
sion and demands “a more explicit direction from
Congress,” fearing that a viable claim under the Acts
would impose “a tremendous burden” on Interior given
the number of Loyal Mdewakanton and their varied
geographic locations. See Maj. Op. at 15-16. 5 The stand-
ard to establish a waiver under the Indian Tucker Act,
however, is not made higher when the case presents
“pragmatic considerations.” Id. The Wolfchild plaintiffs
only needed to establish, and did establish, that the 1888-
1890 Acts can be fairly interpreted to impose a duty on
the United States. See White Mountain, 537 U.S. at 480;
Samish, 419 F.3d at 1365.
B. Statute of Limitations
Because I read the claims adjudicated today as falling
within the terms of Indian Trust Accounting Statute, the
general six-year statute of limitations period would not
apply. Shoshone Indian Tribe of Wind River Reservation
v. United States, 364 F.3d 1339, 1346−47 (Fed. Cir. 2004).
I affirm the view of the Claims Court that the statute of
limitations did not commence to run on the Wolfchild
plaintiffs’ claims until there was an accounting under
5 While it may be true that resolution of this case
may raise administrative burdens, such burdens should
not relieve the government from its own treaty obliga-
tions, especially given that the burden has been made
more difficult due to the passing of time, a circumstance
that the government created and had the power to avoid.
It is not in this Court’s province to avoid an otherwise just
and correct judgment on the grounds that its implementa-
tion would impose an administrative burden on the gov-
ernment.
WOLFCHILD v. US 21
which the beneficiary could determine whether there has
been a loss. Claims Court Remand Decision, 96 Fed. Cl.
at 335. For the reasons stated in the Claims Court’s
opinion, I depart from the majority and would affirm the
conclusion that the Wolfchild plaintiffs’ pursuit of money
damages for pre-1980 revenues derived from appropriated
lands was timely.
IV. CONCLUSION
The plain meaning of the statutes, the historical con-
text of the 1888-1890 Appropriations Acts, and the special
relationship between the government and the Tribes all
weigh against the majority’s conclusion that the Appro-
priations Acts do not give rise to a money-mandating
duty. In denying legitimate claims for compensation
under the Indian Tucker Act, the majority loses sight of
what the statutes were intended to accomplish at the time
of their enactment. For the reasons stated above, I would
affirm the Claims Court in finding that the Wolfchild
plaintiffs are entitled to litigate and seek judgment
against the government for the improper allocation of
land revenues set aside for their benefit. Accordingly, I
respectfully dissent-in-part.