October 1, 1996
MEMORANDUM
TO: TEC Members
FROM: Norman Deschampe, President
SUBJECT Special TEC Meeting
I have scheduled a special TEC meeting to discuss the claims between the
Minnesota Chippewa Tribe and the US Government over the timer sales and
account of the funds that has been going on for over 45 years.
This meeting will take place at the Hinckley Inn In Hinckley, Minnesota
beginning at 2:00 p.m. on Tuesday, October 8, 1996.
This is the only issue that is scheduled to be discussed at the meeting and
I want to stress how important it is that everyone be in attendance.
I have attached some land timber and population totals on each of the six
reservations for you information. These figures should be considered when
it is time to discuss distribution if a settlement is reached with the US
Government.
If you have any questions regarding the claim or the figures that I have
attached, please contact Gary Frazer and he will arrange a meeting with you
or you council to update you.
218-335-8581
Fax : 218-335-6562
Legal Brief prepared by Schoesler Law Firm:
CHIPPEWA TRIBE CLAIMS CASES
Minnesota Chippewa Tribe v. United States
United States Court of Federal Claims, Washington, D.C. Docket No. 19 and
Docket No. 188
One case was filed in 1948 and one case was filed in 1951
The cases were brought before the Indian Claims Commission. This
Commission was set up in 1946 to try to resolve lingering claims of tribes
that they had not received fair compensation for lands that had been taken
from them. The commission had jurisdiction to hear claims that involved
general "unfairness" and "dishonorable dealing" with tribes by the united
States, as well as claims that could be made under strictly legal
principles. The reason for this was that many tribal claims for money
damages could not be proved under traditional principles of law, or in fact
had been rejected by courts previously. (Many of the MCT claims in docket
19 and 188 had been dismissed in the 1920s and 1930 under traditional legal
principles.)
The Indian Claims Commission was abolished in 1978. The MCT claims in
Docket 19 and 188 had never gotten resolved by the Indian Claims
Commission. When the Commission was closed down in 1978, the claims were
transferred to the United States Claims Court, which later was renamed the
United States Court of Federal Claims. They have remained the claims court
system ever since.
Money Claims:
It is important to realize that these claims since the beginning have only
been for money damages. That is the only kind of relief that the law
allows and is the only kind of relief that was allowed to be asked for
under the Indian Claims Commission Act. The United States has not been
sued to get Chippewa land returned. The only way to obtain land is through
congressional legislation. Settlement of these cases do not pose a choice
between money and land. It poses only a choice between money and no money.
Complexity:
These are among the last handful of cases still remaining from the Indian
Claims Commission. They have been acknowledged by the court of Claims to
be among the most difficult and complex cases before the court. That is
probably one of the reason they have never been resolved.
Factual Background:
Most of the issues in the MCT cases stem from the Nelson Allotment Act,
passed by Congress in 1889. Under the terms of that Act (in very
simplified summary) lands on the MCT reservations wear taken from tribal
ownership and sold to non-indians (except that some lands were allotted to
tribal members) or sold to the federal government itself. Over 600,000
acres of land were lost to the tribal reservations in this way. They tribe
was compensated for the land by receiving -- in a trust fund -- the
proceeds of the sales. A complex system of land and timber sales was
created by the Nelson Act. Often, timber was sold separately for a certain
sum, and the land was sold after the timber had been cut. Most of the MCT
claims stem from suspicions that the land and timber were not sold at going
rates, and that the money that went into the trust fund was misspent by the
federal government. There are a few claims in the dockets that relate to
sales or loss of Chippewa land under statutes other than the Nelson Act,
but the bulk of the claims relate to the Nelson Act.
Legal Issues:
Although the cases have a large number of complex sub-issues, there are two
overriding general issues.
1. Accounting Claims: These claims allege that the United States never
properly "accounted" to the MCT for how money was collected for land sales,
deposited in the treasury for the benefit of the tribe, and spent for the
benefit of the tribe under the terms of the Nelson Act. The MCT suspected
that if the money could be properly tracked, it would be seen that the
tribe lost interest by the money not being efficiently collected and
deposited. It is also suspect that some of the money that found its way
into the Chippewa "trust" fund for MCT Bands was badly administered or
misspent by the United States. (Over time, about $21 million was spent out
of the trust fund for the supposed benefit of MCT Bands.) In order to
prove damages, the tribe had to cross two major barriers. First, it had to
receive a proper "accounting" showing how the money was handled a hundred
years ago and how it was spent. Then it had to be able to prove on the
basis of the accounting that a specific amount of money was mishandled or
misspent. The money damages would be the amount actually mishandled or
misspent.
2. Land Value Claims: These claims allege that when the United States sold
the land (either to non-Indians or to itself) it sold it too cheaply --
under its fair market value at the time. Underlying this claim was the
suspicion that the appraisal, scaling, auction and general sales process
set up by the Nelson Act was fraudulently or negligently carried out. The
tribe claimed it should have gotten more money for the land than it
actually got. In order to prove damages here, the tribe had to cross two
more barriers. first, it had to receive a proper "accounting" of how much
money was actually received for the timber and land on each 40 acre parcel
(over 100,000 of such parcels). Then it had to prove that at the time of
the sale (late 1800s and early 1900's) the value of the timber and land on
such parcels was substantially more than was relieved. The money damages
would be the difference between the "real" value and what was actually
received. (Note: the law allows no interest on this kind of damage.)
Difficulties of Proof:
For decades, the united States would not provide the MCT with detailed
"accounting" of receipts from land sales, the deposits of such receipts, or
the disbursements from the trust fund. the tribe had to hire experts to
try to create these accounting from available records. The tribe also had
to try to figure out, in a way provable in court, what the "real" value of
the timber and land on each affected 40 acre parcel was -- over 100 years
ago. The tribe as spent about $2 million on these issues.
When the United States recently provided raw data on these issues to the
MCT, the data consisted of about a million documents related to
disbursements and thousands of pages of printouts related to receipts from
land and timber sales. Receipt of the data is only the first step. The
data then has to be analyzed to see if there really were any mistakes made
in the handling and disbursement of the money, and the sale of the land and
timber.
Settlement:
The proposed settlement would give the Minnesota Chippewa Tribe $20 million
in damages for all of its claims in the Court of Federal Claims. the cases
would be dismissed, and the tribe would have nothing more pending the the
claims court in Washington, D.C. The parties would present the court with
a stipulation for settlement, signed by the attorneys for the Tribe and the
United States. The Judges would issue a final court judgment in the case,
based on the stipulation. The settlement stipulation would identify the
money amount to bee awarded and would specifically state that the tribe is
giving up all the claims identified in the dockets -- which means all money
claims based on the sale or loss of its land under the Nelson Act. The
figure of $20 million is a fair one, based on the nature, age, complexity,
and proof problems associated with the MCT case.
Process:
The MCT must ratify the terms of settlement and authorize its attorney to
sign a settlement stipulation with the United States. The Justice
Department lawyers must similarly obtain a formal authorization from
suitable U.S. officials to sign a stipulation. Although the formal
authorization from the U.S. bureaucracy will probably not come fro a couple
of weeks yet, the Justice Department lawyers in charge of the case have
agreed to the settlement figure, have been keeping the appropriate
officials involved in the process, and have been told to go ahead with
forming a detailed stipulation. After a stipulation is signed, the parties
go to court to get the judge to issue a suitable order. Money should be
deposited in a trust account for the benefit of the MCT. Before it is
actually released, the Secretary of the interior has to present Congress
with a plan for the use and distribution of the funds. Congress has an
opportunity to intervene in the process but seldom does.
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Facts To Remember:
A percentage of the settlement will be paid to the Schoessler Lawfirm.
Attorneys of the Schoessler Lawfirm have in the past opposed the member
Bands of the MCT in treaty rights cases.
The Schoessler Lawfirm was dismissed by duly elected Leech Lake Chairman
Eli Hunt.
The Schoessler Lawfirm is still being paid with tribal fund by Alfred
Fairbanks and Jack Seeyle to file lawsuits against duly elected Leech Lake
Chairman Eli Hunt
A news release is forthcoming to update the status of the power struggle
and crisis in leadership at Leech Lake.
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Bernard J. Rock, Sr.
Leech Lake Pillager Band
Spotted Eagle Warrior Society
North Central Minnesota Native American Veterans
Outreach and Resource Center
Transcribers Note: To whom it may concern, the spellcheck on this computer
program keeps questioning the word Schoessler and asking me if I mean
Chiseler ?! Honest : )