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Indian Claims in the Courts of the Conqueror Nell Jessup Newton Notre Dame Law School, [email protected]

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Indian Claims in the Courts of the Conqueror Nell Jessup Newton Notre Dame Law School, Nell.Newton@Nd.Edu Notre Dame Law School NDLScholarship Journal Articles Publications 1992 Indian Claims in the Courts of the Conqueror Nell Jessup Newton Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Indian and Aboriginal Law Commons Recommended Citation Nell J. Newton, Indian Claims in the Courts of the Conqueror, 41 AM. U. L. REV. 753 (1992). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1204 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. INDIAN CLAIMS IN THE COURTS OF THE CONQUERORt* NELL JESSUP NEWTON** TABLE OF CONTENTS Introduction ................................................ 754 I. True Stories ........................................... 761 A. Confiscation of Land by Judicial Decree: Mary and Carrie Dann ....................................... 761 B. Land, Not Money: The Sioux Nation and the Black H ills .............................................. 763 C. Prove Your Case, and You Can Get Jurisdiction: The Cherokee Nation and the Arkansas River ...... 765 II. Indian Claim s ......................................... 769 A. Special Jurisdictional Statutes ...................... 769 B. Indian Claims Commission ........................ 771 C. The Tucker Act: The Federal District Court, the Court of Claims, and the Claims Court ............ 774 D. Review in the United States Court of Appeals for the Federal Circuit ................................ 775 III. Claim s Law ............................................ 776 A. The Trust Relationship: The Convenient Distinction Between Moral and Legal Claims ....... 776 1. Breach of fair and honorable dealing ........... 776 2. Breach of trust in the federal district courts .... 784 3. Breach of trust in the Court of Claims .......... 786 t Johnson v. McIntosh, 21 U.S (8 Wheat.) 543, 588 (1823) (Marshall, C.J.) ("We will not enter into the controversy, whether agriculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted."). *© 1992 Nell Jessup Newton. ** Professor of Law, Catholic University Law School. The author wishes to thank Mil- ner Ball, Philip S. Deloria, Nancy Dunn, Joel Paul, and Judith Resnik for their helpful com- ments on earlier stages of this manuscript. Many thanks also to Diana Botluk, Brian Baker, and Mark Hammond of the CUA Law Library research staff. 753 754 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 41:753 4. Breach of trust in the Claims Court and Federal Circuit ......................................... 789 a. Tolling the statute of limitations ............ 792 b. The trust relationship after Mitchell H ....... 800 5. Creation of the trust ........................... 803 6. Applying the appropriate standard ............. 810 B. Property Claims in the Indian Claims Commission and the Court of Claims ........................... 818 1. United States v. Dann ............................ 826 2. The Sioux land claims ......................... 830 C. Enforcement of Treaties: The Promise of Tsosie v. United States ....................................... 835 IV. Structure and Process .................................. 838 A. Adoption of the Federal Rules by the Claims Court 840 B. The Nonpublication Controversy .................. 843 C. Appeals ........................................... 843 D. The Judges ........................................ 846 1. Bias ........................................... 846 2. Background .................................... 847 E. The Attorneys ..................................... 849 1. The Department of Justice ..................... 849 2. The tribal advocate ............................ 850 Conclusion ................................................. 851 INTRODUCTION Indian tribes have refused to disappear despite the genocide of the 18th and 19th centuries, the neglect of the first half of the 20th century, and the genocide-at-law that continued well into this cen- tury.' Indian tribal claims against the Government also continue to be initiated and litigated in spite of the creation of elaborate judicial devices to settle these claims for all time. When Congress enacted the Federal Courts Improvement Act (FCIA), it did so with a great deal of thought about the need for uniformity and predictability in the American patent system, but with no thought about the impact of the newly created system on Indian claims against the Government. 2 1. See Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 KAN. L. REv. 713, 718 (1986) (noting that as United States citizens killed Native Americans and destroyed their culture, state legislatures passed formal resolu- tions legalizing such actions by declaring Indians to be outlaws and beyond protection of law). 2. See Federal Courts Improvement Act of 1982 (FCIA), Pub. L. No. 97-164, 96 Slat. 25 (codified as amended in scattered sections of 28 U.S.C.) (establishing United States Court of Appeals for the Federal Circuit and United States Claims Court); S. REP. No. 275, 97th Cong., 19923 INDIAN CLAIMS 755 In fact, Indian claims against the Government occupy a marginal position in American law. Judith Resnik has demonstrated that In- dian law is simply not within the received tradition of the domain of federal court jurisprudence.3 The same observation can be made about the narrower domain of claims against the Government for money damages. Indian claims are rarely mentioned in the schol- arly literature on the subject matter areas and procedural issues within the ambit of United States Court of Appeals for the Federal Circuit and the United States Claims Court.4 Similarly, the annual 2d Sess. 17 (1981), reprintedin 1982 U.S.C.C.A.N. 11, 14-15 (noting that creation of United States Court of Appeals for the Federal Circuit will produce "desirable uniformity" and, thus, reduce forum shopping that is common to patent litigation); Rochelle C. Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1, 6 (1989) (focusing on patent jurisdiction of Court of Appeals for Federal Circuit and benefits produced by court's patent jurisdiction); Charles W. Adams, The Court of Appealsfor the FederalCircuit: More Than a National Patent Court, 49 Mo. L. REv. 43, 60 (1984) (indicating that Department of Justice had hoped for greater Federal Circuit control over tax and environmental cases in addition to patent issues, but jurisdiction over civil tax and environmental cases fell by wayside); Ellen E. Sward & Rodney F. Page, The Federal Courts Improvement Act: A Practitioner'sPerspective, 33 AM. U. L. REV. 385, 397 (1984) (noting patent law was "the real impetus"). 3. SeeJudith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Cm. L. REV. 671, 686 (1989) ("Most of the books [treatises and materials for federal courts courses] refer hardly at all or only in notes to Indian tribe cases."). 4. The major treatise on claims against the United States has separate sections dealing with more frequently litigated claims, but no section dealing with Indian claims under the Tucker Act. See JOHN M. STEADMAN ET AL., LITIGATION WITH THE FEDERAL GOVERNMENT §§ 8.113-8.120, at 156-65 (2d ed. 1983) (discussing employee compensation); id. §§ 9.101- 9.125, at 169-202 (covering government contracts); id. §§ 11.101-11.111, at 219-32, 13.101- 13.120, at 245-78 (handling tort claims). Indian cases are cited when relevant to the point, usually procedural, such as jurisdiction or the statute of limitations. See URBAN A. LESTER El AL., LITIGATION WITH THE FEDERAL GOVERNMENT § 3.107, at 52 (2d ed. Supp. 1989) (discuss- ing attorney's fee case); id. § 6.101, at 95-98 (construing Court of Claims law to be law of old Claims Court); id. § 6.115, at 103-05 (limiting congressional reference jurisdiction); id. § 7.103, at 121-23 (applying statute of limitations); id. § 7.110(c), at 141 (assessing in rem jurisdiction); id. § 8.104, at 149-50 (discussing waiver of sovereign immunity). Only one ref- erence is substantive. See id. § 7.106.2(c), at 127 (referring to breach of fiduciary duty cases); infra notes 183-287 and accompanying text (discussing breach of trust in federal district courts, Court of Claims, and Claims Court). The Federal Bar Association has published a practitioner's handbook for practice before the Claims Court and the Court of Appeals for the Federal Circuit. See ARTHUR L. BURNETr, FEDERAL BAR ASS'N HANDBOOK ON PRACTICE BEFORE THE U.S. CLAIMS COURT AND THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT (1986). This useful handbook contains rules of the two courts, articles on jurisdiction of the courts, and practice pointers. In addition, the handbook features articles on practice within specified areas, including analysis of developing case law relating to jurisdiction and other procedural issues. The handbook deals with only one issue with regard to Indian claims, however, and that is in an article written by the Deputy Chief of the General Litigation Section, Land and Natural Resources Division,
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