United States v. Sioux Nation of Indians

No. 79-639. Argued March 24, 1980. Decided June 30, 1980. 448 U.S. 371.

[Footnotes Continued:]

23. Representative Gudger of North Carolina persistently argued the view that the amendment unconstitutionally interfered with the powers of the Judiciary. He dissented from the Committee Report in support of the amendment's enactment, stating:

"I do not feel that, when the Federal Judiciary has adjudicated a matter through appellate review and no error has been found by the Supreme Court of the United States in the application by the lower court (in this instance the Court of Claims) of the doctrine of res judicata or collateral estoppel that the Congress of the United States should enact legislation which has the effect of reversing the decision of the Judiciary" H.R.Rep. No. 9529, p. 17 (1977).

Representative Gudger stated that he could support a bill to grant a special appropriation to the Sioux Nation, acknowledging that it was for the purpose of extinguishing Congress' moral obligation arising from the Black Hills claim,

"but I cannot justify in my own mind this exercise of congressional review of a judicial decision which I consider contravenes our exclusively legislative responsibility under the separation of powers doctrine" Id. at 18.

The Congressman, in the House debates, elaborated upon his views on the constitutionality of the amendment. He stated that the amendment would create

"a real and serious departure from the separation of powers doctrine, which I think should continue to govern us and has governed us in the past" 124 Cong.Rec. 2953 (1978). He continued:

"I submit that this bill has the precise and exact effect of reversing a decision of the Court of Claims, which has heretofore been sustained by the Supreme Court of the United States. Thus, it places the Congress of the United States in the position of reviewing and reversing a judicial decision in direct violation of the separation of powers doctrine so basic to our tripartite form of government.

"I call to your attention that, in this instance, we are not asked to change the law, applicable uniformly to all cases of like nature throughout the land, but that this bill proposes to change the application of the law with respect to one case only. In doing this, we are not legislating, we are adjudicating. Moreover, we are performing the adjudicatory function with respect to a case on which the Supreme Court of the United States has acted. Thus, in this instance, we propose to reverse the decision of the Supreme Court of our land" Ibid.

Representative Gudger's views on the effect of the amendment vis-a-vis the independent powers of the Judiciary were not shared by his colleagues. Representative Roncalio stated:

"I want to emphasize that the bill does not make a congressional determination of whether or not the United States violated the fifth amendment. It does not say that the Sioux are entitled to the interest on the $17,500,000 award. It says that the court will review the facts and law in the case and determine that question" Id. at 2954.

Representative Roncalio also informed the House that Congress in the past had enacted legislation waiving the defense of res judicata in private claims cases, and had done so twice with respect to Indian claims. Ibid. He mentioned the Act of Mar. 3, 1881, 21 Stat. 504 (which actually waived the effect of a prior award made to the Choctaw Nation by the Senate), and the Act of Feb. 7, 1925, 43 Stat. 812 (authorizing the Court of Claims and the Supreme Court to consider claims of the Delaware Tribe "de novo, upon a legal and equitable basis, and without regard to any decision, finding, or settlement heretofore had in respect of any such claims").

Both those enactments were also brought to the attention of a Senate Subcommittee in hearings on this amendment conducted during the previous legislative session. See Hearing on S. 2780 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 94th Cong., 2d Sess., 16-17 (1976) (letter from Morris Thompson, Commissioner of Indian Affairs).

The enactments referred to by Representative Roncalio were construed, respectively, in Choctaw Nation v. United States, 119 U.S. 1, 29-32 (1886), and Delaware Tribe v. United States, 74 Ct.Cl. 368 (1932). Representative Pressler also responded to Representative Gudger's interpretation of the proposed amendment, arguing that

"w]e are, indeed, here asking for a review and providing the groundwork for a review. I do not believe that we would be reviewing a decision; indeed, the same decision might be reached" 124 Cong.Rec. 2955 (1978).

Earlier, Representative Meeds clearly had articulated the prevailing congressional view on the effect of the proposed amendment. After summarizing the history of the Black Hills litigation, he stated:

"I go through that rather complicated history for the purpose of pointing out to the Members that the purpose of this legislation is not to decide the matter on the merits. That is still for the court to do. The purpose of this legislation is only to waive the defense of res judicata and to waive this technical defense, as we have done in a number of other instances in this body, so this most important claim can get before the courts again and can be decided without a technical defense and on the merits" Id. at 2388.

See also S.Rep. No. 95-112, p 6 (1977) ("The enactment of [the amendment] is needed to waive certain legal prohibitions so that the Sioux tribal claim may be considered on its merits before an appropriate judicial forum"); H.R.Rep. No. 95-529, p. 6 (1977)

24. The joint resolution at issue in Nock also limited the amount of the judgment that the Court of Claims could award Nock to a sum that had been established in a report of the Solicitor of the Treasury to the Senate. See 14 Stat. 608. The court rejected the Government's argument that the Constitution had not vested in Congress "such discretion to fetter or circumscribe the course of justice." See 2 Ct.Cl. at 455. The court reasoned that this limitation on the amount of the claimant's recovery was a valid exercise of Congress' power to condition waivers of the sovereign immunity of the United States.

"[I]t would be enough to say that the defendants cannot be sued except with their own consent; and Congress have the same power to give this consent to a second action as they had to give it to a first" Id. at 458.

Just because we have addressed our attention to the ancient Court of Claims' decision in Nock, it should not be inferred that legislative action of the type at issue here is a remnant of the far-distant past. Special jurisdictional Acts waiving affirmative defenses of the United States to legal claims, and directing the Court of Claims to resolve the merits of those claims, are legion. See Mizokami v United States, 188 Ct.Cl. 736, 740-741, and nn. 1 and 2, 414 F.2d 1375, 1377, and nn. 1 and 2 (1969) (collecting cases).

A list of cases, in addition to those discussed in the text, that have recognized or acted upon Congress' power to waive the defense of res judicata to claims against the United States follows (the list is not intended to be exhaustive): United States v. Grant, 110 U.S. 225 (1884); Lamborn & Co. v. United States, 106 Ct.Cl. 703, 724-728, 65 F.Supp. 569, 576-578 (1946); Menominee Tribe v. United States, 101 Ct.Cl. 10, 19 (1944); Richardson v. United States, 81 Ct.Cl. 948, 956-957 (1935); Delaware Tribe v. United States, 74 Ct.Cl. 368 (1932); Carrett v. United States, 70 Ct.Cl. 304, 310-312 (1930) In Richardson, the Court of Claims observed:

"The power of Congress by special act to waive any defense, either legal or equitable, which the Government may have to a suit in this court, as it did in the Nock and Cherokee Nation cases, has never been questioned. The reports of the court are replete with cases where Congress, impressed with the equitable justice of claims which have been rejected by the court on legal grounds, has, by special act, waived defenses of the Government which prevented recovery and conferred jurisdiction on the court to again adjudicate the case. In such instances the court proceeded in conformity with the provisions of the act of reference and in cases, too numerous for citation here, awarded judgments to claimants whose claims had previously been rejected" 81 Ct.Cl. at 957.

Two similar decisions by the United States Court of Appeals for the Eighth Circuit are of interest. Both involved the constitutionality of a joint resolution that set aside dismissals of actions brought under the World War Veterans' Act, 1924, 38 U.S.C. § 445 (1952 ed.), and authorized the reinstatement of those war risk insurance disability claims.

The Court of Appeals found no constitutional prohibition against a congressional waiver of an adjudication in the Government's favor, or against conferring upon claimants against the United States the right to have their cases heard again on the merits. See James v. United States, 87 F.2d 897, 898 (1937); United States v. Hossmann, 84 F.2d 808, 810 (1936). The court relied, in part, on the holding in Cherokee Nation and the sovereign immunity rationale applied in Nock.

25. Before completing our analysis of this Court's precedents in this area, we turn to the question whether the holdings in Cherokee Nation, Nock, and Pope, might have been based on views, once held by this Court, that the Court of Claims was not, in all respects, an Art. III court, and that claims against the United States were not within Art. III's extension of "judicial Power" "to Controversies to which the United States shall be a Party." U.S.Const., Art. III, § 2, cl. 1. See Williams v. United States, 289 U.S. 553 (1933). Pope itself would seem to dispel any such conclusion. See 323 U.S. at 12-14.

Moreover, Mr. Justice Harlan's plurality opinion announcing the judgment of the Court in Glidden Co. v. Zdanok, 370 U.S. 530 (1962), lays that question to rest. In Glidden, the plurality observed that

"it is probably true that Congress devotes a more lively attention to the work performed by the Court of Claims, and that it has been more prone to modify the jurisdiction assigned to that court" Id. at 566.

But they concluded that that circumstance did not render the decisions of the Court of Claims legislative in character, nor, impliedly, did those instances of "lively attention" constitute impermissible interferences with the Court of Claims' judicial functions.

"Throughout its history, the Court of Claims has frequently been given jurisdiction by special act to award recovery for breach of what would have been, on the part of an individual, at most a moral obligation. . . . Congress has waived the benefit of res judicata, Cherokee Nation v. United States, 270 U.S. 476, 486, and of defenses based on the passage of time. . . .

"In doing so, as this Court has uniformly held, Congress has enlisted the aid of judicial power whose exercise is amenable to appellate review here. . . . Indeed the Court has held that Congress may, for reasons adequate to itself, confer bounties upon persons, and, by consenting to suit, convert their moral claim into a legal one enforceable by litigation in an undoubted constitutional court" United States v. Realty Co., 163 U.S. 427.

The issue was settled beyond peradventure in Pope v. United States, 323 U.S.

"1. There, the Court held that for Congress to direct the Court of Claims to entertain a claim theretofore barred for any legal reason from recovery -- as, for instance, by the statute of limitations, or because the contract had been drafted to exclude such claims -- was to invoke the use of judicial power, notwithstanding that the task might involve no more than computation of the sum due. . . . After this decision, it cannot be doubted that, when Congress transmutes a moral obligation into a legal one by specially consenting to suit, it authorizes the tribunal that hears the case to perform a judicial function" Id. at 566-567.

The Court in Glidden held that, at least since 1953, the Court of Claims has been an Art. III court. See id. at 585-589 (opinion concurring in result). In his opinion concurring in the result, Mr. Justice Clark did not take issue with the plurality's view that suits against the United States are "Controversies to which the United States shall be a Party" within the meaning of Art. III. Compare 370 U.S. at 562-565 (plurality opinion), with id. at 586-587 (opinion concurring in result).

26. It should be recognized at the outset that the inquiry presented by this case is different from that confronted in the more typical of our recent "taking" decisions. E.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979); Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). In those cases, the Court has sought to

"determin[e] when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons" Penn Central, 438 U.S. at 124.

Here, there is no doubt that the Black Hills were "taken" from the Sioux in a way that wholly deprived them of their property rights to that land. The question presented is whether Congress was acting under circumstances in which that "taking" implied an obligation to pay just compensation, or whether it was acting pursuant to its unique powers to manage and control tribal property as the guardian of Indian welfare, in which event the Just Compensation Clause would not apply.

27. This aspect of the Lone Wolf holding, often reaffirmed, see, e.g., Rosebud Sioux Tribe v Kneip, 430 U.S. 584, 594 (1977), is not at issue in this case. The Sioux do not claim that Congress was without power to take the Black Hills from them in contravention of the Fort Laramie Treaty of 1868. They claim only that Congress could not do so inconsistently with the command of the Fifth Amendment: "nor shall private property be taken for public use, without just compensation."

28. For this reason, the Government does not here press Lone Wolf to its logical limits, arguing instead that its "strict rule" that the management and disposal of tribal lands is a political question, "has been relaxed in recent years to allow review under the Fifth Amendment rational basis test." Brief for United States 55, n. 46. The Government relies on Delaware Tribal Business Comm. v. Weeks, 430 U.S. at 84-85, and Morton v. Mancari, 417 U.S. 535, 555 (1974), as establishing a rational basis test for determining whether Congress, in a given instance, confiscated Indian property or engaged merely in its power to manage and dispose of tribal lands in the Indians' best interests.

But those cases, which establish a standard of review for judging the constitutionality of Indian legislation under the Due Process Clause of the Fifth Amendment, do not provide an apt analogy for resolution of the issue presented here -- whether Congress' disposition of tribal property was an exercise of its power of eminent domain or its power of guardianship. As noted earlier, n. 27, supra, the Sioux concede the constitutionality of Congress' unilateral abrogation of the Fort Laramie Treaty. They seek only a holding that the Black Hills "were appropriated by the United States in circumstances which involved an implied undertaking by it to make just compensation to the tribe." United States v. Creek Nation, 295 U.S. 103, 111 (1935).

The rational basis test proffered by the Government would be ill-suited for use in determining whether such circumstances were presented by the events culminating in the passage of the 1877 Act.

29. Of course, it has long been held that the taking by the United States of "unrecognized" or "aboriginal" Indian title is not compensable under the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285 (1955). The principles we set forth today are applicable only to instances in which "Congress, by treaty or other agreement, has declared that, thereafter, Indians were to hold the lands permanently." Id. at 277. In such instances, "compensation must be paid for subsequent taking." Id. at 277-278.

30. An examination of this standard reveals that, contrary to the Government's assertion, the Court of Claims in this case did not base its finding of a taking solely on Congress' failure in 1877 to state affirmatively that the "assets" given the Sioux in exchange for the Black Hills were equivalent in value to the land surrendered. Rather, the court left open the possibility that, in an appropriate case, a mere assertion of congressional good faith in setting the terms of a forced surrender of treaty-protected lands could be overcome by objective indicia to the contrary.

And, in like fashion, there may be instances in which the consideration provided the Indians for surrendered treaty lands was so patently adequate and fair that Congress' failure to state the obvious would not result in the finding of a compensable taking. To the extent that the Court of Claims' standard, in this respect, departed from the original formulation of the Fort Berthold test, see 220 Ct.Cl. at 486-487, 601 F.2d at 1182-1183 (dissenting opinion), such a departure was warranted.

The Court of Claims' present formulation of the test, which takes into account the adequacy of the consideration given, does little more than reaffirm the ancient principle that the determination of the measure of just compensation for a taking of private property "is a judicial, and not a legislative, question." Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893).

31. The 1877 Act, see supra at 382-383, and n. 14, purported to provide the Sioux with "all necessary aid to assist the said Indians in the work of civilization," and "to furnish to them schools and instruction in mechanical and agricultural arts, as provided for by the treaty of 1868." 19 Stat. 256.

The Court of Claims correctly concluded that the first item "was so vague that it cannot be considered as constituting a meaningful or significant element of payment by the United States." 220 Ct.Cl. at 458, 601 F.2d at 1166.

As for the second, it "gave the Sioux nothing to which they were not already entitled [under the 1868 treaty]." Ibid. The Government has placed some reliance in this Court on the fact that the 1877 Act extended the northern boundaries of the reservation by adding some 900,000 acres of grazing lands. See n. 14, supra.

In the Court of Claims, however, the Government did "not contend . . . that the transfer of this additional land was a significant element of the consideration the United States gave for the Black Hills." 220 Ct.Cl. at 453, n. 3, 601 F.2d at 1163, n. 3. And Congress obviously did not intend the extension of the reservation's northern border to constitute consideration for the property rights surrendered by the Sioux. The extension was effected in that article of the Act redefining the reservation's borders; it was not mentioned in the article which stated the consideration given for the Sioux' "cession of territory and rights." See 19 Stat. 255-256.

Moreover, our characterizing the 900,000 acres as assets given the Sioux in consideration for the property rights they ceded would not lead us to conclude that the terms of the exchange were "so patently adequate and fair" that a compensable taking should not have been found. See n. 30, supra.

Finally, we note that the Government does not claim that the Indian Claims Commission and the Court of Claims incorrectly valued the property rights taken by the 1877 Act by failing to consider the extension of the northern border. Rather, the Government argues only that the 900,000 acres should be considered, along with the obligation to provide rations, in determining whether the Act, viewed in its entirety, constituted a good faith effort on the part of Congress to promote the Sioux' welfare. See Brief for United States 73, and n. 58.

32. The dissenting opinion suggests, post at 434-437, that the factual findings of the Indian Claims Commission, the Court of Claims, and now this Court are based upon a "revisionist" view of history. The dissent fails to identify which materials quoted herein or relied upon by the Commission and the Court of Claims fit that description. The dissent's allusion to historians "writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees," post at 435, is also puzzling, because, with respect to this case, we are unaware that any such historian exists. The primary sources for the story told in this opinion are the factual findings of the Indian Claims Commission and the Court of Claims.

A reviewing court generally will not discard such findings because they raise the specter of creeping revisionism, as the dissent would have it, but will do so only when they are clearly erroneous and unsupported by the record. No one, including the Government, has ever suggested that the factual findings of the Indian Claims Commission and the Court of Claims fail to meet that standard of review.

A further word seems to be in order. The dissenting opinion does not identify a single author, nonrevisionist, neorevisionist, or otherwise, who takes the view of the history of the cession of the Black Hills that the dissent prefers to adopt, largely, one assumes, as an article of faith. Rather, the dissent relies on the historical findings contained in the decision rendered by the Court of Claims in 1942. That decision, and those findings, are not before this Court today.

Moreover, the holding of the Court of Claims in 1942, to the extent the decision can be read as reaching the merits of the Sioux' taking claim, was based largely on the conclusive presumption of good faith toward the Indians which that court afforded to Congress' actions of 1877. See 97 Ct.Cl. at 669-673, 685. The divergence of results between that decision and the judgment of the Court of Claims affirmed today, which the dissent would attribute to historical revisionism, see post at 434-435, is more logically explained by the fact that the former decision was based on an erroneous legal interpretation of this Court's opinion in Lone Wolf. See Part IV-B, supra.

33. We find further support for this conclusion in Congress' 1974 amendment to § 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a. See n. 17, supra. That amendment provided that, in determining offsets, "expenditures for food, rations, or provisions shall not be deemed payments on the claim.

"The Report of the Senate Committee on Interior and Insular Affairs, which accompanied this amendment, made two points that are pertinent here. First, it noted that,

"[a]lthough couched in general terms, this amendment is directed to one basic objective -- expediting the Indian Claims Commission's disposition of the famous Black Hills case" S.Rep. No. 93-863, p. 2 (1974) (incorporating memorandum prepared by the Sioux Tribes).

Second, the Committee observed:

"The facts are, as the Commission found, that the United States disarmed the Sioux and denied them their traditional hunting areas in an effort to force the sale of the Black Hills. Having violated the 1868 Treaty and having reduced the Indians to starvation, the United States should not now be in the position of saying that the rations it furnished constituted payment for the land which it took. In short, the Government committed two wrongs:

"first, it deprived the Sioux of their livelihood;

"secondly, it deprived the Sioux of their land. What the United States gave back in rations should not be stretched to cover both wrongs" Id. at 4-5.

See also R. Billington, Introduction, in National Park Service, Soldier and Brave xiv (1963) ("The Indians suffered the humiliating defeats that forced them to walk the white man's road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded").

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