[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Notices]
[Pages 59963-59967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24120]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Preliminary Plan for Distribution of Judgment Funds to the Loyal
Mdewakantons
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of hearings and request for comments.
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SUMMARY: The Department of the Interior is developing a plan for
distribution of judgment funds to the Loyal Mdewakantons if funds are
appropriated in satisfaction of a final judgment. The distribution plan
includes a determination of the criteria for eligibility to participate
in any award.
DATES: Comments on the preliminary plan must be received by November 1,
2012. The Department will hold in-person hearings on the preliminary
plan
[[Page 59964]]
on October 30, 2012, from 6 p.m. to 10 p.m. in Sioux Falls, South
Dakota at the Best Western Plus Sioux Falls Ramkota Hotel, 3200 W.
Maple Street, and on November 1, 2012, from 6 p.m. to 10 p.m. in
Bloomington, Minnesota at the Ramada Mall of America, 2300 East
American Boulevard.
ADDRESSES: Send comments to David Christensen, Tribal Operations
Officer, Bureau of Indian Affairs, Midwest Regional Office, Norman
Pointe II, 5600 West American Boulevard, Suite 500, Bloomington, MN
55437.
FOR FURTHER INFORMATION CONTACT: David Christensen, Tribal Operations
Officer, Bureau of Indian Affairs, Midwest Regional Office, Norman
Pointe II, 5600 West American Boulevard, Suite 500, Bloomington, MN
55437; telephone (612) 725-4554.
SUPPLEMENTARY INFORMATION: On August 5, 2011, as corrected by Order
dated August 18, 2011, the Court of Federal Claims directed the
Secretary of the Interior to prepare and submit to the Court a roll of
eligible claimants and a distribution plan for funds arising from the
judgment in Wolfchild, et al. v. United States, Docket Nos. 03-2684L &
01-568L, under the Indian Tribal Judgment Funds Use or Distribution Act
(25 U.S.C. 1401-1407). The Secretary has developed a preliminary plan
for distribution of the $673,944 judgment among an estimated 20,750 or
more potential beneficiaries. Based on the estimated 20,000 or more
potential claimants represented in the court action, individual
payments are likely to be in the $20.00-$40.00 range. The underlying
judgment of the Court is the subject of appeals by the parties and, as
such, no funds have yet been made available for any distribution.
Interested parties should note that the individual Plaintiffs and
the Defendant in the underlying litigation have appealed the CFC's
judgment to the United States Court of Appeals for the Federal Circuit.
(See, Fed. Cir. Case Nos. 2012-5035, -5036, -5043 (consolidated),
Appeal from the United States Court of Federal Claims in Consolidated
Case Nos. 03-CV-2684 and 01-CV-0568.) Because the parties have filed
appeals to the Federal Circuit, the CFC's judgment is not final and the
Department of the Treasury has not appropriated any funds to be
distributed.
In furtherance of complying with the Court's order to ``complete
preparation of such roll and plan satisfying the criteria specified in
25 U.S.C. 1403'' the Department, in accordance with 25 CFR 87.3(b),
will hold hearings on the record in Sioux Falls, South Dakota on
October 30, 2012, and in Bloomington, Minnesota on November 1, 2012 to
receive testimony on the preliminary plan. Written testimony will also
be accepted at the hearings or can be sent to the address in the
ADDRESSES section of this notice. Please be advised that your
testimony, whether oral or written, may be made publicly available at
any time. While you can request that any personal identifying
information contained in your testimony be withheld from public review,
we cannot guarantee that we will be able to do so.
The preliminary plan for the distribution of these funds reads as
follows:
Draft Report and Preliminary Plan
For the Use and Distribution of Judgment Funds Awarded to the
Descendants of the Loyal Mdewakanton in Docket Nos. 03-2684L & 01-568L,
Before the United States Court of Federal Claims
Background
The Department of the Interior respectfully submits this plan for
the distribution of $673,944.00, awarded by the Court of Federal Claims
in the case of Wolfchild v. United States, Dockets No. 03-2684L & No.
01-568L, August 5, 2011. Wolfchild v. United States, 101 Fed. Cl. 54
(2011) (as corrected August 18, 2011). The court remitted and remanded
to the Secretary the work of preparing a plan for the distribution of
the funds, setting forth the criteria for eligibility, and then
developing a roll of eligible claimants.
This case was brought in 2003 by a group of individuals who claim
to be the lineal descendants of the 1886 Mdewakantons, called the
``loyal Mdewakantons.'' Over time, more individuals have joined the
suit as plaintiffs or plaintiff-interveners, and this number is now
estimated as exceeding 20,750. The litigation has yielded various and
sometimes competing theories and definitions of a ``loyal Mdewakanton''
that would be eligible to share in an award.
In August 1862, the Minnesota Sioux \1\, then living on two
reservations in Southern Minnesota, rebelled against the United States.
The uprising resulted from the needless delay in distributing promised
treaty annuities, including food, to the starving Indians. The United
States responded with military force, and many of the Indians were
expelled from Minnesota or captured. After the rebellion was quelled,
Congress abrogated and annulled the treaties that had established the
reservations and that had provided an annuity to be paid to the tribes.
The Minnesota Sioux reservation lands in Minnesota were confiscated,
and most of the Sioux were forced to relocate further west.
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\1\ The Minnesota Sioux consisted of 4 bands: The Sisseton,
Wahpaton (upper bands), Wahpakootas and Mdewakantons (lower bands).
Contemporaneous accounts put most of the blame for the rebellion on
the lower bands. [Report of the Secretary of the Interior, 1866;
Joint Appendix, Ex. 32]
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Even in the aftermath of the uprising, when the Congress was
debating the bill that would investigate the hostilities and impose
punitive measures, recognition was given to the existence of a group of
Indians who ``have been faithful to the whites, have defended them, and
who have saved their lives in Minnesota.'' Many of those individuals,
because of their actions, severed their ties to the tribe and remained
in Minnesota. The government's confiscation of the Sioux lands in
Minnesota and the forfeiture of the annuities that had been paid
pursuant to the abrogated treaties left those individuals poverty-
stricken and homeless. In acknowledging the contributions of this
group, consisting of about 200 individuals, Congress authorized the
Secretary of the Interior to convey 80 acres of public land to ``each
individual of the before-named bands who exerted himself in rescuing
the whites from the late massacre of said Indians.'' Act of February
16, 1863, 12 Stat. at 654. Two weeks later, Congress enacted another
statute providing: [I]t shall be lawful for [the] Secretary [of the
Interior] to locate any meritorious individual Indian of [the four]
bands, who exerted himself to save the lives of the whites in the late
massacre, upon [the former Sioux reservation lands] on which the
improvements are situated, assigning the same to him to the extent of
eighty acres, to be held by such tenure as is or may be provided by law
. . . [provided] [t]hat no more than eighty acres shall be awarded to
any one Indian, under this or any other act.'' Act of March 3, 1863,
ch. 119, section 4, 12 Stat. at 819.
The Secretary never exercised the authority granted by the 1863
legislation to provide lands to the friendly Sioux, due to the intense
opposition of the white settlers. In regard to the friendly Sioux
remaining in Minnesota, the 1866 Report of the Secretary of the
Interior noted ``it is noticeable that Congress has, by several
enactments, made attempts to provide for them by donations of land and
money; but it has been found impracticable to accomplish anything under
those acts, on account of the hostility manifested by the white people
of that region towards everything in the form of an Indian. Many of
these men have, for the past three years, been
[[Page 59965]]
homeless wanderers, and actually suffering from want: A very poor
return for services rendered to the whites for the risk of their
lives.''
Efforts to provide for the Minnesota Sioux who had aided the
settlers during the Sioux Uprising continued. In 1888, 1889, and 1890,
Congress enacted legislation appropriating funds for the support of a
number of designated Indian tribes. Motivated by the failure of the
1863 Acts to provide relief, Congress included in each of these
statues, known collectively as the ``Appropriations Acts'', a paragraph
allocating a small sum to be used for the benefit of the Mdewakantons
who had remained in Minnesota after the 1862 revolt or had returned to
Minnesota in the following years.
The 1888 Act appropriated $20,000 ``to be expended by the Secretary
of the Interior'' in purchasing land, cattle, horses, and agricultural
implements for the ``full-blood Indians in Minnesota belonging to the
Mdewakanton band of Sioux Indians, who have resided in [Minnesota]''
since May 20, 1886, and who have ``severed their tribal relations.''
Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29. In 1889, Congress
appropriated a further sum of $12,000 ``to be expended by the Secretary
of the Interior'' for the ``full-blood'' loyal Mdewakanton residing in
Minnesota since May 20, 1886, or ``who were then engaged in removing to
said State.'' Act of March 2, 1889, ch. 412, 25 Stat. 980, 992-93. The
1889 Act was substantially similar to the 1888 Act but included three
additional provisions not included in the 1888 Act. Unlike the 1888
Act, the 1889 Act required the Secretary to expend the appropriated
funds in a manner such that each loyal Mdewakanton received as close to
an equal amount as practicable. Additionally, the 1889 Act mandated
that any money appropriated in the 1889 Act not expended within the
fiscal year would not be recovered by Treasury, but rather would be
carried over to the following years and expended for the benefit of the
loyal Mdewakanton. The 1889 Act made the ``equal amount'' requirements
applicable to the money appropriated under the 1888 Act as well. In
1890, Congress appropriated an additional $8,000 and adopted the same
substantive provisions as the 1889 Act, except that it expressly stated
that the further appropriated amount was to support Indians of both
``full and mixed blood.'' Act of August 19, 1890, 26 Stat. 336, 349.
The 1889 and 1890 Acts also differed from the 1888 Act by granting the
Secretary discretion based on what ``may be deemed best in the case of
each of these Indians or family thereof.'' Id. at 992 (emphasis added).
The 1888 Act, on the other hand, made no explicit mention of the loyal
Mdewakantons' families as beneficiaries of the appropriations. See 25
Stat. at 228-29.
The Department of the Interior used approximately $15,600 of the
$40,000 appropriated under the three Appropriations Acts to purchase
parcels of land in various parts of southern Minnesota where the
Mdewakantons had settled. Because of difficulties in determining which
of the Mdewakantons qualified as ``loyal'' during the 1862 uprising,
the Appropriations Acts provided that the appropriations would be
designated for the benefit of all Mdewakantons who were living in or in
the process of removing to Minnesota as of May 20, 1886. As a result,
the lands purchased with funds from the three Appropriations Acts are
known as ``the 1886 lands,'' and the Mdewakantons who were statutorily
eligible for benefits under the Acts are commonly referred to as ``the
1886 Mdewakantons.'' The Department of the Interior assigned individual
plots from those lands to qualifying Mdewakantons for their use and
occupancy, so long as they resided on or otherwise used the land.
The text delineating the beneficiary class in each Appropriation
Act varied in minute respects, but the essential thrust of the Acts was
Congress' desire that loyal Mdewakanton would be identified as those
Mdewakanton who had severed their tribal relations and who had either
remained in, or were removing to, Minnesota as of May 20, 1886. To
determine the persons who would be considered ``loyal'' Mdewakanton
under Congress' definition and thus would receive the benefits of the
Appropriations Acts, the Department of the Interior relied upon two
censuses: The McLeod listing and the Henton listing. The McLeod listing
was generated in 1886 by U.S. Special Agent Walter McLeod and listed
all of the full-blood Mdewakantons remaining in Minnesota at the time.
Under the Secretary's direction, on January 2, 1889, a supplementary
census was taken by Robert B. Henton, Special Agent for the Bureau of
Indian Affairs (``BIA''), of the Mdewakanton living in Minnesota since
May 20, 1886. That listing included some mixed bloods. Together, these
listings were used to distribute the benefits of the Appropriations
Acts to those persons whose names appeared on the lists, and
subsequently, to lineal descendants of those listed persons.
Over time, funds were generated by the use, sale and leasing of the
1886 lands, which were placed in Treasury trust fund accounts. Some of
these funds were obtained from a transfer of a portion of the 1886
lands by the United States to the Upper Mississippi River Wildlife and
Fish Refuge (``the Wabasha Land Transfer''). The remaining portion of
the money, however, stemmed from Interior's policy of leasing or
licensing 1886 lands for fair market value where no eligible
Mdewakanton or lineal descendant was available for a land assignment.
In 1975, the BIA performed a detailed accounting of all funds derived
from the 1886 lands then held by the Treasury. After deduction of the
Wabasha Land Transfer funds, the sum remaining attributable to the 1886
lands amounted to $60,464.02.
Pursuant to the Indian Reorganization Act of 1934, three
Mdewakanton communities were formed in the three areas where the 1886
lands were located. The three communities are the Prairie Island Indian
Community, the Shakopee Mdewakanton Sioux Community, and the Lower
Sioux Indian Community. The enrolled membership of the three
communities consists largely of lineal descendants of the Mdewakantons
who were living in Minnesota in 1886, but some enrolled members are not
descendants of the 1886 Mdewakantons, and many of the descendants of
the 1886 Mdewakantons are not enrolled members of any of the three
communities. Over time, the government purchased additional land for
the Prairie Island and Lower Sioux communities. Those lands were
regarded as reservation lands and as such were held in trust for those
two communities. Prior to 1980, those reservation lands were treated as
having a legally distinct status from the 1886 lands, even though
parcels of the two classes of property were intermingled in the same
areas within the geographical boundaries of the Prairie Island and
Lower Sioux communities.
In 1980, Congress enacted legislation designed to give the three
communities political control over all the property within the
communities that had been set aside for Indians, including the 1886
lands. See Public Law 96-557, 94 Stat. 3262 (1980) (the ``1980 Act'').
The 1980 Act provided that the 1886 lands, which ``were acquired and
are now held by the United States for the use or benefit of certain
Mdewakanton Sioux Indians'' under the Appropriations Acts, would
henceforth be ``held by the United States * * * in trust for'' the
three communities. Id. That legislation did not address the funds
derived from the 1886 lands then being held by the Treasury. However,
in 1981 and 1982 those funds were distributed to the three communities.
[[Page 59966]]
The Court of Federal Claims found that the transfer of monies
derived from the 1886 lands to the three communities was not authorized
by the 1980 statute, and that the ``loyal Mdewakantons'' referenced in
the Appropriations Acts should have been the beneficiaries. As
referenced above, the Department of the Interior is directed to
determine which claimants are the proper beneficiaries of the
Appropriations Acts, and who are therefore entitled to share in the
judgment. This process also entails consideration of the various
theories of recovery advanced by the plaintiffs in the court case in
order to establish the proper criteria for determining the class of
persons the Appropriations Acts were intended to benefit.
Various iterations have emerged as to how to define ``loyal
Mdewakanton'' and how to determine the lineal descendants of such loyal
Mdewakantons with respect to who should be the intended beneficiaries
of the Appropriations Acts. The contentions fall into three general
categories:
One iteration is that loyal Mdewakantons are limited to those
individuals appearing on censuses carried out at the direction of the
Secretary of the Interior in 1886 (the McLeod census) and 1889 (the
Henton census) specifically to identify the intended beneficiaries of
the Acts. The criteria specified in the Acts are Mdewakanton residing
in Minnesota on May 20, 1886 (or who were in the process of removing
there), and who had severed their tribal relations. As noted above, the
1890 Act made provisions to include both full and mixed blood
Mdewakantons.
A second iteration goes beyond the McLeod and Henton censuses to
define eligibility and would also rely on lists of individuals who were
scouts, or who rescued whites, or who performed other meritorious
services to aid the settlers during the uprising. This position is
supported by the fact that legislation enacted in 1863 pertaining to
Mdewakantons employed other standards. Those acts were not restricted
to the Mdewakanton, and spoke of ``meritorious'' or ``friendly''
Indians who had ``exerted themselves'' to rescue the white settlers.
This position would counsel toward the use of additional source
documents that reflect individuals not listed in the 1886 and 1889
censuses who had been ``loyal'' or ``friendly'' and therefore in the
class that Congress intended to benefit. These other sources might
include:
1862 Indian Camp Census, Report No. 156 in Report of U.S.
Commissioner of Indian Affairs, 1863. This list consists of the Sioux
Indians and ``half-breeds'' under the surveillance of the U.S. military
authorities at Camp Snelling, Minnesota during the winter of 1862. The
list included the families of Indians accused of fomenting the uprising
jailed at Davenport, Iowa; Indians who had been acquitted of
responsibility, and a number of scouts.
Camp Release Census 1863, Stephen Riggs Family Papers, Box 1,
Minnesota Historical Society. This census was of captives released to
Colonel Sibley, which included 162 mixed bloods.
Congressional Globe, 37th Cong., 3D Session at 514. The Globe
contains the transcription of a discussion on the floor of Congress on
January 26, 1863, regarding the 1862 uprising. Correspondence from the
Commissioner of Indian Affairs is introduced, containing a petition for
assistance from Indians who had rescued whites in the uprising, and
suffered ill-treatment from both whites and other Indians.
Sibley Sioux Scout List--1863 Sibley Expedition, May 28, 1863,
Sibley Papers, Minnesota Historical Society Collections, 10:611. This
list is of Indian scouts who were retained and recruited for the Sibley
Expedition to pursue hostile Indians that left the State of Minnesota
to escape any penalties for their participation in the 1862 uprising.
1866 Report of the Secretary of the Interior. This report, dated
April 20, 1866, includes the names of individuals that deserve the
``gratitude of the American people for having been principally
instrumental in saving the lives of white women and children during the
late Indian war.''
Payroll to Soldiers and Scouts 1891-92 (S.H. Elrod Scout and
Soldier List) (National Archives and Records Administration). This
document is a listing of scouts for the United States military of Sioux
descent during and subsequent to the uprising, who received per capita
payments under Congressional appropriations in 1893 and 1895.
1891 Samuel Brown Scout List--Census. A list of the frontier Scout
Force of Fort Wadsworth, Dakota Territory was found in the personal
papers of Samuel Brown, who served there as an interpreter and the
superintendent of government scouts. The list was apparently compiled
for the distribution of back annuities for members of the Sioux tribe
who had served as scouts in the Indian Wars, provided for in the Indian
Appropriations Act of 1891.
A third iteration recognizes that ``mixed blood'' Mdewakantons were
not included on the 1886 and 1889 censuses used to determine receipt of
benefits under the Appropriations Acts, but these mixed bloods were
specifically mentioned as beneficiaries in the 1890 Act. This position
would counsel toward consideration of later censuses that were perhaps
more likely to include mixed bloods and those who may not have been
present for the 1886 and 1889 counts but were ``in the process of
removing to Minnesota.'' Later enumerations of Mdewakanton in Minnesota
include:
Birch Cooley Census of Mdewakanton Indians, Robert B. Henton, 1891-
93, 1895-98.
Robert Henton was commissioned by the Secretary of the Interior to
conduct the census of 1889 of Mdewakanton Indians in Minnesota. These
subsequent lists of full and mixed-blood Mdewakantons at the Birch-
Cooley Agency appear to be a continuation of his earlier work, given
the inclusion of mixed-bloods as recipients of the 1890 Appropriations
Act.
Census of Mdewakanton Sioux of Minnesota, James McLaughlin, 1899.
An 1899 letter from the Commissioner of the BIA references this
census as a refinement of the earlier work done by Robert Henton to
enumerate the Mdewakantons entitled to the benefits of the
Appropriations Acts.
1917 Census of Mdewakanton Sioux Indians. This census was created
by Interior as part of a Court of Claims judgment in favor of the
Mdewakanton and Wahpekoota Band of Sioux Indians.
Proposed Finding on Criteria for a ``Loyal Mdewakanton'' Eligible To
Receive an Award
The Appropriations Acts defined the loyal Mdewakantons and intended
beneficiaries of the Act as (1) Indians in Minnesota, belonging to the
Mdewakanton Band of Sioux Indians, (2) who resided in the state on May
20, 1886, or were in the process or removing to Minnesota, and (3) who
have severed their tribal relations. A review of Interior Department
memoranda, correspondence and administrative determinations dating from
1886 through 1982 shows these as the criteria consistently applied in
making or evaluating assignments for the 1886 Lands. Because the funds
that form the basis of the proceeds in this case derive from those
lands, the same criteria should apply in determining who is eligible to
share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department
of the Interior made official eligibility determinations for 1886 Land
assignments, created various rolls of eligible individuals, and often
issued
[[Page 59967]]
certificates to assignees. We adopt these documents as probative of
eligibility for 1886 Land Assignments and proxy for membership in the
group of intended beneficiaries of the Appropriations Acts. Documents
which have previously been sanctioned by the Department for this
purpose are:
(1) The 1886 McLeod Census
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton
descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the
Secretary of the Interior for the purpose of determining eligibility
under the Appropriations Acts.
We determine that the class of persons eligible to participate in
any final judgment of the Court of Federal Claims are those who can
submit proof of descent from any individual listed on the documents
adopted as probative above.
Dated: September 21, 2012.
Diane Rosen,
Midwest Regional Director.
[FR Doc. 2012-24120 Filed 9-28-12; 8:45 am]
BILLING CODE 4310-W7-P