[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Pages 59963-59967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24120]



Bureau of Indian Affairs

Preliminary Plan for Distribution of Judgment Funds to the Loyal 

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of hearings and request for comments.


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 

[[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 

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 
    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 

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

    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.

    \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]

    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 
    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 
    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 
    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 
    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 
    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 
    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 

[[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]