Rogers v. United States

877 F.2d 1550, 1989 WL 63439
CourtCourt of Appeals for the Federal Circuit
DecidedJune 15, 1989
DocketNo. 88-1468
StatusPublished
Cited by8 cases

This text of 877 F.2d 1550 (Rogers v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rogers v. United States, 877 F.2d 1550, 1989 WL 63439 (Fed. Cir. 1989).

Opinion

FRIEDMAN, Circuit Judge.

These are an appeal and a cross-appeal from a judgment of the United States District Court for the District of Nevada that certain individuals were entitled to participate in a prior award of just compensation for the taking by the United States during the last century of Indian lands. Rogers v. United States, No. R-80-63 BRT, Memorandum Opinion (D.Nev. Nov. 13, 1987) (hereinafter “Second Trial Decision”). We affirm in part, vacate in part, and remand to the district court for further proceedings in accordance with this opinion.

I

A. Between 1961 and 1964, the Indian Claims Commission awarded the Northern Paiute Indian Nation a total of $20,375,000 as just compensation for the taking by the United States between 1853 and 1872 of the Northern Paiute aboriginal homelands. In 1961 and 1968, Congress appropriated funds to pay these awards and placed the funds in trust pending the formulation of a distribution plan. Supplemental Appropriations Act, Pub.L. No. 87-332, 75 Stat. 733 (1961); Supplemental Appropriations Act, Pub.L. No. 90-608, ch. 12, 82 Stat. 1190 (1968).

In subsequent legislation, Congress established general guidelines for the distribution of any Indian judgment funds, and directed the Secretary of the Interior to prepare and submit to Congress a distribution plan for funds appropriated to pay Indian Claims Commission judgments. Distribution of Judgment Funds Act, Pub. L. No. 93-134, § 2, 87 Stat. 468 (1973); 25 U.S.C. § 1402 (Funds Act). The Funds Act also required the Secretary to promulgate within 180 days rules and regulations “to implement” the Act, and provided:

Among other things, such rules and regulations shall provide for adequate notice to all entities and persons who may receive funds under any Indian judgment of all relevant procedures pursuant to this chapter concerning any such judgment.

25 U.S.C. § 1406(a).

The Secretary submitted to Congress a distribution plan for the Northern Paiute judgment fund in July 1974. The plan provided for per capita distribution to “lineal descendants of Northern Paiute Indians.” 25 C.F.R. § 41.3(t)(l)(ii) (1976). Enrolled members of other tribes, who might also qualify as Northern Paiutes, but who were to receive comparable compensation through those tribes, were excluded from the distribution. 25 C.F.R. § 41.3(t)(2). In a letter accompanying the plan, the Secretary noted expected difficulties in notifying eligible Northern Paiutes, since lineal descendants were scattered among several currently recognized tribes and “there are, in addition, numerous individual Northern Paiute descendants who are not affiliated with any Federally recognized groups today.” Rogers v. United States, No. R-80-63 BRT, Order, slip op. at 3 (D.Nev. Aug. 3, 1981) (hereinafter “1981 Order”).

On April 16,1975, after a period of notice and comment, the Secretary published in the Federal Register regulations governing the enrollment of Northern Paiutes for the distribution. 40 Fed.Reg. 17,022 (Apr. 16, 1975). In order to expedite the payments to eligible Northern Paiutes, the regulation was made effective immediately instead of in 30 days. Enrollment commenced immediately, and terminated 180 days later, on October 13, 1975. 25 C.F.R. § 41.3(t)(3) (1976). The regulations provided for a “place to obtain forms of application of enrollment, the place where they are to be filed and the time within which they must be filed.” 1981 Order at 4, citing 25 C.F.R. § 41.3(t).

The Secretary never promulgated the regulation governing the giving of notice to potential recipients of funds under Indian judgments that the Funds Act required.

The Bureau of Indian Affairs did, however, send letters to “Nevada and California Newspapers, television stations and ra[1554]*1554dio stations” “soliciting your help in this search and ... enclosing a public service announcement,” The announcement indicated that more than $20 million was ready for distribution and that eligible persons of Northern Paiute ancestry must apply prior to the closing date of October 13, 1975. Letters were also sent to 97 different organized Indian groups in 24 states and the District of Columbia.

Since the closing date for enrollment was a federal holiday, the Assistant Secretary for Indian Affairs determined on March 2, 1978 that applications received by October 14, 1975 would be considered timely. Due to confusion regarding implementation of this change, the deadline was later extended to any applications signed or dated by October 14 and received by October 24.

Provision also was made for individuals who had attempted but failed to qualify for participation in a comparable award made to the Washoe tribe because they could not establish tribal membership, but who could prove lineal descendancy from a Northern Paiute Indian. These individuals were permitted to use the filing date of their Wash-oe application as the filing date for their Northern Paiute application. The deadline for applications for Washoe enrollment had been January 31, 1975.

This procedure was adopted in response to a letter from the chairman of the Wash-oe Tribal Council, which pointed out to the Bureau of Indian Affairs (BIA) that persons rejected for Washoe enrollment should be able to preserve their rights to Northern Paiute enrollment. In that letter, which is not in evidence, the chairman allegedly gave the BIA the names of individuals in that category. A later letter from the chairman is in the record and contains lists of affected individuals.

The BIA received approximately 12,000 enrollment applications, which it individually reviewed. To assist in the review, the BIA requested help from various Indian tribes, and a BIA representative visited a number of Indian reservations and obtained information used in making eligibility determinations.

As a result of this review, the BIA determined that approximately 9,000 individuals were entitled to participate in the fund. The fund was distributed on April 2, 1980. Each participant received $5,162.52.

B. Shortly before the distribution was made, two Northern Paiute applicants, Rogers and Howell, both of whose applications had been denied for late filing, filed suit in the district court seeking to participate in the award. They alleged that the government's failure to promulgate regulations governing the giving of notice, as the Funds Act required, had contributed to their failure timely to enroll and thus was responsible for their failure to share in the fund.

The district court set aside the rejection of Rogers’ and Howell's applications “for late filing.” 1981 Order at 7. The court held that despite “extensive efforts to give notice,” the congressionally mandated “directive [concerning notice was] ignored.” 1981 Order at 5.

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877 F.2d 1550, 1989 WL 63439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-united-states-cafc-1989.