STATEMENT OF THE FACTS

The Little Shell Band is made up of lineal descendants of a nomadic, aboriginal group of Indians who in 1863 were led by its great Chief, Ase-anse or Essence (hereafter "Chief Little Shell"). The Little Shell Band is not a "recognized tribe" as that term is used for Indian groups who have sought and received formal recognition by the federal government.

The Little Shell Band as it existed in 1863 divided into two groups approximately a century ago. Some of its members were driven by poverty, hunger and government "removal policy" out of North Dakota to settle permanently in Northern Montana. Today they refer to themselves as the "The Little Shell Band of Montana". They and their interests are not involved in this litigation.

The lineal descendants of the Little Shell Band who bring this action through their hereditary chief live in various areas of the United States. The governing group, The Grand Council of 1863, live primarily in north-central North Dakota. They presented three claims to the lower Court. The dismissal of two claims are presented here on appeal . A claim for proceeds of a Bond presented to the lower Court is not pursued here.

The policy of Congress, reserving for itself exclusive power to negotiate Treaties that would expropriate aboriginal rights, was affirmed in United States v. Santa Fe Pacific RR, 314 U.S. 347 (May 1941). In addition, in the Louisiana Purchase the French extracted a promise from the United States that aboriginal rights would not be usurped in the area being purchased. Some of the area involved in this litigation was a part of the Louisiana Purchase:

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess." Louisiana Purchase, Part III, October 18, 1800.

In addition, the Act by which Congress created the Territory of Dakota specifically provided there could be no impairment of Indian property rights in that territory unless the Unites States first obtained the consent of Indians having aboriginal rights therein. Act of March 2, 1861, 12 Stat. 239. Sec 1.

Throughout the 1800’s the desire for new lands and the idea that it was white man’s "manifest destiny" to settle the continent resulted in a relentless westward migration by white settlers into the Indian’s aboriginal lands. It did not matter whether the government had a treaty with the affected Indians. Throughout the 1800’s the government frequently stood in blatant violation of its own statutes.

As the white settlers poured into the West, official government policy sought to encourage removal of Indian Tribes through a series of "resettlements" and voluntary westward migrations. Unsettled lands "further west" were offered in exchange for Indian lands the whites wanted to settle. See e.g., The Indian Removal Act of 1830, ch CXLVIII, 4 Stat. 411. When official policy didn’t work, unofficial policy encouraged forcible relocation. Cobell v. Norton, 345 U.S. App. D.C. 141, 240 F.3d 1081 (Feb 23, 2024).

In the late 1700’s and throughout the 1800’s a massive white migration had forced these bands out of their woodland homes in Michigan, Wisconsin and Minnesota and pushed them farther west into the Dakota Territory and what is now Montana. Eventually those who moved survived on the Great Plains as hunters, fishers and trappers.

By the 1860’s thousands of white settlers had staked out claims in Minnesota and along the Red River in North Dakota even though there was no treaty divesting the Indians who lived there of their aboriginal rights to those lands. In 1863 the Homestead Act was passed. By the 1880’s more than a million white settlers had moved into the Western Plains.

As the white settlers pushed westward the government agents followed behind and attempted to legitimatize the takings after the fact. The government felt compelled to attempt compliance with the law and sought consent of the aboriginal tribes whenever possible.

Thus it was that on October 2, 1863, at a location known as the "Old Crossing" in Northwestern Minnesota, government agents met with the Chiefs of the Red Lake Band of Chippewa and the Pembina Band to negotiate a divestiture of their aboriginal rights in Minnesota and a strip of land along the west side of the Red River. The negotiations were successful and a treaty was signed. (App. P.92-98) Little Shell, Chief of the Pembina’s, was one of the signers.

As consideration for this relinquishment of millions of acres, the United States agreed to pay $20,000 a year for 20 years. In addition, the government extended numerous personal allurements to gain the signatures of the individual chiefs: Moose Dung, Red Bear and Ase-Anse or Essence (also known as Little Shell). Homesteading rights were granted to members of these bands and the government created two "reservations" of 640 acres each. One was for Chief Red Bear and his Band located on the north side of the Pembina River and the other for Moose Dung and his Band near the mouth of the Thief River.

Little Shell was known as the Great Chief of the Little Shell Band. His title had devolved upon him by patriarchy in keeping with tradition. His Chieftain bloodline dated back to the 1700’s. His Band was considered friendly to the French and English fur traders. These traders began making incursions into the Great Plains as early as 1738. The first white man to explore the area of Little Shell’s aboriginal ownership was Pierre Gaultier de Varennes (a/k/a Verendrye). Verendrye explored as far south as an area just east of what is today Bismarck, North Dakota. Chief Little Shell saw the advantage of being friendly to the white man. A brisk commerce developed between his Band and the white fur traders. (App. p.118) His Band was helpful to the fur traders in dealing with other belligerent and war-like Bands in the area.

The Old Crossing Treaty of 1863 primarily involved aboriginal Indian claims in Minnesota but it also included a strip of land a few miles wide on the west side of the Red River. This strip was the area to which Chief Little Shell and his Band had strongest claim. The "Old Crossing Treaty" of 1863 did little to relieve the pressure of homesteaders marching westward faster than treaties could be negotiated. After 1863 as the settlement drama unfolded the government’s response was to apply pressure to Little Shell and his Band in an attempt to get them to give up their land voluntarily and to go settle on a reservation. Chief Little Shell was not interested in doing so.

His Band had become nomadic hunters, fishers and trappers and they did not want to "settle down" and be confined to some tiny area on the Plains.

"Despite the warnings of the then Commissioner of Indian Affairs, H. Price, who maintained that the group had as good a title to their lands as had any Indians in North America, The government, on October 4, 1882, officially opened 9 million acres, the land claimed by the Pembina Band to white settlers." (Report of the Commissioner of Indian Affairs for 1884 quoted in Waiting for a Day That Never Comes, Verne Dusenberry, "Montana" Spring 1958, p. 33 App p. 509)

In an attempt to accommodate government policy, the President of the United States created the Turtle Mountain Reservation by Executive Order in 1882 (App. p.99.) It was hoped the new reservation would entice the nomadic Little Shell to settle down. The reservation was comprised of approximately two townships.

Wild game on the Great Plains was disappearing and the government hoped that as a matter of survival Little Shell and his band would agree to be contained within this small area. They would have access to government assistance and for food and shelter when it was needed. Some Pembina, including some from Little Shell’s Band, took the bait. Many of the descendants of those people remain on the Turtle Mountain Reservation to this day.

Little Shell’s response, however, was to negotiate for a larger area. He wanted a half million-acre reservation in the Turtle Mountain area that would be nearly 30 miles by 30 miles (19 townships). In addition he wanted a reservation in Montana that would contain another half million acres. (App. p.120.) The government was unwilling to agree to his demands. The parties stood at impasse.

In 1863, at the Old Crossing, Little Shell had been willing to go along with the other chiefs as they agreed to cede millions of acres of aboriginal lands in return for the promise of $20,000 a year for 20 years. At that time Little Shell's principal interest was in the lands immediately to the west of the area being ceded. He did want payment for the narrow strip of land that was on the west side of the Red River. But he was comfortable in his belief that after these concessions to the white man his Band would be left unbothered in the 10-15 million acres to the west.

By the time the Turtle Mountain Reservation was created in 1882, however, Little Shell and his band had become totally disenchanted with the treaty promises that had been made to them. The federal government had failed to make good on the payments promised at the Old Crossing in 1863. By 1882 Little Shell and most of his Band were no longer willing to swap the 10,000,000 acres they owned in North Dakota for a promise of 46,000 acres in the Turtle Mountains. The government made various efforts to get the 10,000,000 acres by negotiation. Senate Report No 693, Fifty Sixth Congress, First Session (App. p. 113-291) June
6, 1900 reported as follows:

"From time to time, prior to 1892, the government had sought to secure a relinquishment of the Indian title to said tract of land from this band [the Little Shell] without success. Id. …

 "Attempts were also made by the Government to secure the consent of these Indians for their removal to some other reservation. [Fort Berthold] The said Band seemed greatly attached to their home, [comprised of over 10 million acres] and no amount of persuasion could induce them to remove therefore; finally, in 1892, by act of Congress a commission, was appointed by the President to secure the relinquishment of their Indian title to all territory claimed in the State of North Dakota, and to induce this band to remove to some other location." Id.

For the Band's stubborn refusal to be confined on a reservation, however, there was retribution by the agents of the federal government. When Little Shell and his Band refused to become reservation settlers, payment to them for their portion of the $20,000 annual payments promised at the Old Crossing in 1863 were withheld. The Little Shell were told they would only receive the benefits of the payments if they would settle down on a reservation. This they refused to do. As late as the 1890’s Little Shell and his band continued to fish, trap, hunt, and engage in commerce with the white man.

One hundred years later the descendants of this Band and the other Bands involved sued the United States for its default in payments promised by the Treaty of 1863 (19 Ind.Cl.Comm. 205). In addition they alleged they had not received fair compensation for what they had given up. On June 9, 1964, in Docket 18A, the Indian Claims Commission awarded $2,034,889.56 to the lineal descendants of Moose Dung (Red Lake Band) and Little Shell (Pembina Band). Of this amount $237,127.82 was determined to be the Little Shell Band’s share.

Plaintiff’s Second Cause of Action in this lawsuit alleges that to this day the $237,127.82 has not been paid to the Little Shell. They asked the lower court here to order an accounting and take control of the funds.

When economic coercion to make the Little Shell Band reservation Indians did not work, the government recognized it was faced with a serious legal problem. There was no treaty in place that would divest Little Shell’s Band of the 10 million or more acres the government had already opened up to homesteaders. To deal with this crisis Congress passed the Act of July 13, 1892. This Act established a Commission headed by one P.J. McCumber (later a U.S. Senator from North Dakota.) The sole purpose of the Commission was to convince these various Indian Bands they should relinquish their aboriginal rights and move onto reservations.

The McCumber delegation asked the Indians bands to meet and engage in negotiations for a Treaty. They gathered together at Belcourt, North Dakota on September 21, 1892. The Commission offered 10 cents an acre for the roughly 10 million acres involved.

Chief Little Shell balked. He thought 10 cents an acre for 10 million acres of some of the richest farmland in the nation was inadequate.

Little Shell insisted on a large reservation and more money before his Band’s land would be ceded. McCumber refused to budge on his 10-cent offer. Little Shell and his braves got up and walked out, never to return to the negotiating table. To this day the United States of America has never entered into a Treaty with the Little Shell Band. Instead the Court of Claims awarded money damages for the government's taking. In Docket No. 221 (App. p. 330-355), the court found the Little Shell were entitled to be compensated. To this day none of the money awarded has ever been distributed to them.

When Little Shell and his braves left the bargaining table, the McCumber Commission did not want to give up on the mission it had been sent to do. It had been charged with the responsibility of returning to Washington D.C. with a treaty by which the aboriginal rights of the Indians who inhabited most of the northeast quadrant of North Dakota would be extinguished. When Little Shell refused to sign the proposed treaty the McCumber Commission staff solicited 32 young, male, Indians to sign a bogus treaty.

The Indian signatures obtained were those of 16 Chippewa half-breeds and
16 Chippewa full bloods. They were people who had no leadership role or authority to speak or act on behalf of the Little Shell Band. (App. p. 145.) They were simply rounded up and brought to Pembina from the surrounding area. They came without provision for food or shelter. As the negotiations dragged on they become half-starved. The impasse remained. Chief Little Shell saw what was happening and approached a local Catholic priest, Father J.F. Malo, and asked him to intercede to avoid a calamity. With his intervention provisions were finally made for the 32 imposters.

Once the 32 were taken into the negotiating room it was full. Others were unable to participate or even observe. The 32 signed. The Treaty that was eventually signed by the government came to be known as the infamous "10 cent Treaty". It was obtained without the consent of the Pembina leadership. Seventy years later in the Indian Claims Commission it was proved the false treaty was unconscionable (App. p. 330-355.)

It took another 13 years for the U.S. Senate to ratify the false treaty over the strong and bitter protest of the Little Shell Band. It never became a treaty with the Little Shell. Little Shell and his Band never received a dime of the one million dollars.

Within days of the signing, on October 24, 1892, Little Shell’s Grand Council of Pembina met to renounce the treaty. They protested that it was not the product of persons having authority to give away the Pembina’s aboriginal lands. Their lawyer, John Bottineau, continued to register frequent and loud protests. In a written report filed with the Commissioner of Indian Affairs, he wrote:

"Because said agreement, or 10 cent treaty, so called, was unlawfully concluded and executed with the younger or unauthorized members without the consent or approval of the chief and the council of the tribe said Chief Little Shell and his council which is composed of his braves, the leading and representative men of the tribe, did not only refuse to sign said proposed agreement, but also did then and there oppose its execution, and ever since have protested against its ratification by Congress for the good and valid reasons and objections set forth." (Proceedings of the Grand Council, filed with the Commissioner of Indian Affairs, File No 1993, Special Case No. 110, January 1893.) (App. p.143-150.)

In its own report to the President, the McCumber Commission conceded things had not gone as they should have:

"While the agreement is not in exact accordance with the act of Congress providing for the commission and defining its duties it is forwarded for the favorable action of Congress as the best available". (App. p.101.)

Chief Little Shell died in 1901. His son-in-law, Rising Sun, became Chief. The Band continued to protest ratification of the treaty even after Congress ratified it in 1905. For decades they protested the great injustice that had been done to them. In return they received only government retribution.

The people who did accepted the McCumber Treaty became enrolled members of the federally recognized Turtle Mountain Band of Chippewa. As the 20th Century proceeded and homesteaders tied up all the land, the followers of the Chief Little Shell Band settled in the Belcourt and Turtle Mountain areas of North Dakota.

Members of the Little Shell Band attempted to preserve the Little Shell Grand Council as an ongoing governing entity. But if they "assembled", or spoke out on behalf of "Little Shells", they were threatened, thrown in jail, denied contracts, employment, health service, and governmental commodities (App. p.295.) "If they attempted to hold "Little Shell"' meetings to discuss the pursuit of "Little Shell" rights they were arrested and fined." They held secret meetings. "Pow Wows" were conducted in private homes so they would not be observed. Bingo and other activities were conducted to raise money so that Little Shell representatives could secretly go to Washington D.C. to meet with government officials to seek redress for their grievances.

At one point, just as had been done to the Cherokee in the 1830’s, the government "relocated" a group of Little Shell by loading them onto railroad boxcars and hauling them to a point along the northern border of Montana where they were dumped off. Descendants of those banished members still live there today. They became the Little Shell of Montana.

In the 1930’s Thomas Little Shell, the "Great Chief’s" grandson, lobbied for the creation of a commission where the wrongs that had been committed against his people might be vindicated. Congress finally created an Indian Claims Commission under the Court of Claims in 1946 to hear "claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive Orders of the President." Pub. L 79-726, 60 Stat. 1049. 25 U.S.C.70

The directions given to this Commission by the Congress included a mandate that the violations of Indian rights associated with the "ten cent treaty" be investigated and adjudicated. The mandate expressly included a charge that the Commission investigate the treatment that had been given to the Little Shell Band.

Instructions to the Court of Claims by Congress included the following:

"Whether the Agreement of 1892 was consented to and ratified by the Band or Chief or Thomas Little Shell and the amount of any loss to said land resulting from actions taken under said agreement without the consent of said band?

"Whether the lands to which Chief Little Shell’s Band had title by occupancy were taken from it without the consent of that band and what the value thereof would be?

"Whether under the Agreement of 1892 lands were taken by the United States of America without payment of adequate consideration therefore or without paying any consideration at all?" (Emphasis added) Id.

After passage of the Act creating the Indian Claims Commission, the lineal descendants of Chief Little Shell hired a lawyer, Lawrence C. Mills of Chicago, Illinois to represent their interests. At that time Louis Delorme was Chief of the Little Shell Grand Council of 1863. He was the father of the plaintiff-appellant herein. Mills sought compensation for the government’s taking of the Little Shell’s ancestral lands. The lawsuit filed was filed as Docket No. 221 before the Indian Claims Commission (App. p. 295-296.)

Those Pembina who had agreed to settle on the Turtle Mountain Reservation and had become enrolled members of the federally recognized Turtle Mountain Band also filed a separate lawsuit. They hired the Wilkenson Law Firm of Washington D.C. to represent them. Their claim was based upon an assertion that the 10 cents an acre that had been paid to their ancestors under the McCumber Treaty was unconscionable. Other Pembina affected by the unconscionable amount also filed their own separate lawsuits. These included the Red Lake Band, the White Earth Band in Minnesota and the Rocky Boy of Montana.

The Indian Claims Commission joined all the lawsuits for trial because it felt the factual evidence as to the value of the lands at the time they were "taken" and the evidence establishing the rights of those Bands would all be based on similar or identical evidence.

At the commencement of the lawsuit great effort was made by the government to convince the Indian Claims Commission that the Little Shell's case should be dismissed. The assertion was that the Little Shell were so assimilated into the Turtle Mountain Tribe that they had lost their identity as a separate entity. The government insisted that the Little Shell claim was totally incorporated within the claims being made by the Turtle Mountain Tribe. This is an assertion that persists to this day in spite of the fact it was soundly rejected by the Indian Claims Commission and the Court of Claims on appeal. The Indian Claims Commission said:

"Since the Commission allowably found that the ancestral Turtle Mountain Band divided because of Little Shell's protest against the McCumber negotiations, and since the present Turtle Mountain Band does not claim to represent all of the present Little Shell members, the later group is entitled to separate representation as a claimant on behalf of the original Turtle Mountain Band. As we held in McGhee, the ancestral group ‘owns’ the claim, and the present day Indian groups are before the Commission only on behalf of the ancestral entity. 122 Ct. Cl. at 386-88. The conclusion reached in McGee is that an officially organized group of descendants of the ancestral entity, and an identifiable but unorganized group of descendants, are both entitled to separate representation in the proceedings before the Commission. Id, See also Cherokee Freedmen v United States, 195 Ct Cl. 39, 45 (1971). This principle is controlling here and authorized the separate participation by the Little Shell plaintiffs whom the Commission could permissibly deem, in view of the band's genesis and history, as an ‘identifiable group’". Turtle Mountain Band of Chippewa Indians, et al., v. The United States, 203 Ct. Cl. 426 (App. p.370.)

The litigation lasted ten years. The Committee awarded $52,527,337.97. After attorney fees and set-offs the claim was established at $47,376,622.93. (App. p.355.) The government appealed the judgment to the Court of Claims. The Turtle Mountain Band cross-appealed. In their cross-appeal the Turtle Mountain Band took up the earlier fight the government had tried to make and attempted to have the Little Shell Band ousted as one of the successful claimants. They wanted to be the sole recipient of the lawsuit proceeds and have total control over its distribution. They wanted to make all decisions about who qualified to receive a share of the award. They asked the Court of Claims on appeal to find that the Little Shell had been so assimilated into the Turtle Mountain Band that it did not exist as a separate entity. The argument was soundly rejected by the Appeals Court. The Court of Claims said:

"In attacking this holding, [by the Indian Claims Commission] the Turtle Mountain Band first attempts to swallow the Little Shells by contending that most, or the great majority, are Turtle Mountain members. But we do not understand the Turtle Mountain Band to concede that all of the Little Shell Bands are Turtle Mountain members, and the Little Shells deny that that is so. This being the case we cannot mechanically conclude that the Little Shell petitioners are barred from separate participation." (emphasis added.) Turtle Mountain Band of Chippewa Indians, et al., Id., (App. p. 369-370.)

Before the Court of Claims the Turtle Mountain Band also attacked the Little Shell’s rights as a separate and distinct entity upon the ground they were not "organized". They asserted that only that part of the Turtle Mountain Indians that had achieved official federal "recognition" by the Secretary of Interior was entitled to be the exclusive representatives of all the plaintiffs in the action. The idea that only Indians that are a part of a "recognized band" was carried forward at the Agency Superintendent level.
20 years later when distributions begin this same notion still govern governmental action. Agency Superintendent Dorene Bruce wrote to a Little Shell legal counsel as follows:

"There are no program funds available for the Little Shell band of North Dakota nor will there be until this group becomes Federally recognized. The Bureau of Indian Affairs does not have the authority to set aside funds for Little Shell of North Dakota." (App. p. 304.)

But the Court of Claims had clearly rejected any notion that the Band had to be an "organized Band" or one that had been federally recognized in order to be entitled to its own separate share. (App. p. 370.)

Echoing the Indian Claims Commission, the Court of Claims said:

"But the Little Shell Chippewa’s need not have formed a separate band or other organized entity in the 1892-1905 period in order that an identifiable group of their descendants may bring this claim separately. Since the Commission allowably found that the ancestral Turtle Mountain Band divided because of Little Shell’s protest against the McCumber negotiations, and since the present Turtle Mountain Band does not claim to represent all of the present Little Shell members, the latter group is entitled to separate representation as a claimant on behalf of the original Turtle Mountain Band. As we held in McGhee the ancestral group ‘owns’ the claim and present-day Indian groups are before the Commission only on behalf of the ancestral entity. 122 Ct.Cl. at 386-88. The conclusion reached in McGhee is that an officially organized group of descendants are both entitled to separate representation in proceedings before the Commission. Id, See also Cherokee Freedmen v United States, 195 Ct. Cl. 39, 45 (1971). This principle is controlling here and authorized the separate participation by the Little Shell plaintiffs whom the Commission could permissibly deem, in view of the band’s genesis and history, as an ‘identifiable group’". (Emphasis added).
(App. p.368.)

After losing in the Court of Claims on appeal the Turtle Mountain Band’s lawyers advised their clients they should not appeal to the United States Supreme Court. Obviously the lawyers decided it would be wise to keep the Little Shell Band in the litigation because their claims were better, more ancient and more legally compelling than those of the other claimants. (App. p.371-373.)

It took another ten years before Congress conducted hearings to fund the award in Senate Bill 1735. (App. p. 374-473.) The Little Shell were not financially able to attend those hearings. (Letter from Mary Wilson, on behalf of the Little Shell Band of North Dakota, Hearing on S. 1735 before the Select Committee on Indian Affairs, United States Senate, Ninety-Seventh Congress, Second Session, June 17, 1982. App. p.435)

The Chairman of the Turtle Mountain Band, representatives of the BIA and the Secretary of Interior’s office did attend. Before Congress the Turtle Mountain Band continued its fight to exclude the Little Shell from participation in the award. They argued for a structure that would accomplish what they had been denied by the Court of Claims. Their Chairman proposed a committee, appointed by his tribe, to screen all persons claiming to be of Pembina Descendancy to meet a 1/4th blood quantum requirement for eligibility to share in the award. Id. Statement of Richard J. Lafromboise, Chairman of the Turtle Mountain Band of Chippewa Indians. Id.

John W. Fritz, Deputy Assistant Secretary for Indian Affairs, also took up the cause of devising a plan that would exclude the Little Shell. He stated in his testimony at the Senate hearings of S. 1735 (App. p. 380-383) as follows:

"There are factions of Pembina Chippewa who continue to assert that they are fully representative of the historic Pembina Band that should be the sole beneficiaries of the award funds. Usually referring to themselves as the Little Shell Band, they are principally located in North Dakota in the Turtle Mountain Reservation area."

Continuing on he said:

"[proposed] S. 1735 nowhere contains the identification ‘Little Shell Band’ and this we find to be consistent with our recommendations. The appellation Little Shell is of no value in establishing Pembina ancestry." Id, Testimony of John W. Fritz.

Next came testimony from Ken Scott, Assistant Secretary of Indian Affairs for the Department of Interior, who echoed the words of Mr. Fritz:

"The appellation Little Shell is of no value in establishing Pembina ancestry." Id.

Because of this official stance by the Executive Branch, to this day the Little Shell have never been allowed to share in the award money won.

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