United States v. Turtle Mountain Band of Chippewa Indians

612 F.2d 517, 222 Ct. Cl. 1, 1979 U.S. Ct. Cl. LEXIS 333
CourtUnited States Court of Claims
DecidedDecember 12, 1979
DocketApp. No. 8-78
StatusPublished
Cited by61 cases

This text of 612 F.2d 517 (United States v. Turtle Mountain Band of Chippewa Indians) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Turtle Mountain Band of Chippewa Indians, 612 F.2d 517, 222 Ct. Cl. 1, 1979 U.S. Ct. Cl. LEXIS 333 (cc 1979).

Opinions

FRIEDMAN, Chief Judge,

delivered the opinion of the court:

This is an appeal by the United States from an interlocutory order of the Indian Claims Commission awarding plaintiff Indian bands (appellees here) $52,527,337.97 as compensation for the extinguishment of their aboriginal title to land. The amount is the difference between the fair market value of the land on the date of extinguishment of the aboriginal title and the compensation the government previously paid for the land.1

At issue in this litigation is a tract in excess of 8 million acres located in north-central North Dakota on the Canadian border. A group of Chippewas, including plaintiffs, moved westward into this area in the early 19th century and successfully established themselves there. In 1882, the area was surveyed by the government and opened up for settlement. Subsequently, Congress sought to acquire this region and established the McCumber commission for that purpose. Negotiations with the plaintiff bands eventually culminated in a pact, known as the McCumber Agreement, approved in its final form by Congress on April 21, 1904, 33 Stat. 189, and by the Indians on February 15, 1905, under which the plaintiffs ceded title to the land and received $999,887.03.

This is the second time the case has been before us. In the prior appeal, we upheld the Commission’s findings (23 Ind. Cl. Comm. 315 (1970)) that the plaintiffs had aboriginal title to the land and that their title was extinguished in 1905 by the McCumber Agreement. Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 490 F.2d 935 (1974). In the present appeal, the government does not dispute either plaintiffs’ aboriginal title or the inadequacy of the original compensation for its cession. It contends only that the Commission’s determination of fair market value at the time of acquisition was incorrect in the two respects discussed below. We reject both of these challenges to the Commission’s order and affirm it.

[5]*5I.

A. In its previous decision the Commission found that prior to 1905 the plaintiffs had aboriginal title to the land. The government challenged that finding on four grounds (203 Ct. Cl. at 437, 490 F.2d at 941):

(1) Indian title was not acquired prior to the assumption of United States sovereignty through the Louisiana Purchase; (2) there was no exclusive use and occupation by Chippewas because of the presence of large numbers of "mixed bloods”; (3) any Indian title that may have existed was "extinguished” prior to the 1905 taking; and (4) the findings on aboriginal title are inadequate.

In our opinion we carefully considered and rejected each of those contentions. With respect to the argument that the plaintiffs’ aboriginal title was extinguished prior to 1905— which the defendant continues to press here — we stated that the government’s argument was that the title "was 'extinguished’ before February 15, 1905, when the McCumber Agreement became effective . . . because of the establishment of an Executive Order reservation, the impact of white settlement, or voluntary abandonment of the area by the Indians (or all three together).” Id. at 443, 490 F.2d at 944.

We declined to consider "new” evidence on this point which the United States had not offered before the Commission but included in an appendix to its brief, since "no good excuse for this neglect had been suggested” (id., 490 F.2d at 945) and therefore "appraise[d] the Government’s points on the basis of the record made before the Commission.” Id. at 444, 490 F.2d at 945. Noting the settled principle that Congress has "the exclusive right to extinguish Indian title” (id.) or "to eliminate aboriginal title” (id. at 447-48, 490 F.2d at 947), we concluded that neither the establishment of the Turtle Mountain Reservation by Executive orders of 1882 and 1884, the entry of white settlers on the land, nor the Indians’ alleged voluntary abandonment of the land showed an extinguishment of aboriginal title before 1905.

B. Under well-established principles, that determination is the law of the case and impervious to challenge on subsequent appeals. The doctrine of law of the case [6]*6"expresses the practice of courts generally to refuse to reopen what has been decided.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). Thus, "once a case has been decided on appeal, the rule adopted is to be applied, right or wrong, absent exceptional circumstances, in the disposition of the lawsuit.” Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554 (5th Cir. 1978).

This is a compelling case for applying the doctrine. The two grounds upon which the defendant now challenges the Commission’s earlier determination that Indian title was not extinguished until 1905—that title was extinguished by the creation through Executive order of a reservation in 1882, or by the "entry [after 1882] of settlers, homesteaders, railroads and others onto the award area” — were fully argued to and considered and rejected by us in the prior appeal, and we denied rehearing en banc. No litigant deserves an opportunity to go over the same ground twice, hoping that the passage of time or changes in the composition of the court will provide a more favorable result the second time. See Roberts v. Cooper, 61 U.S. (20 How.) 467 (1857); White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967); Lumberman’s Mutual Casualty Co. v. Wright, 322 F.2d 759, 763-64 (5th Cir. 1963).

The provision in the Indian Claims Commission Act that permitted appeals to this court from "any interlocutory determination by the Commission establishing the liability of the United States” (25 U.S.C. § 70s(b) (1976)), confirms the soundness of treating the decision in such an appeal as the law of the case. The provision was designed to give the parties before the Commission the opportunity to avoid the time and expense involved in litigating questions relating to the amount of recovery until the liability of the United States definitively was determined. Having chosen to seek interlocutory review of the Commission’s determination of the date of extinguishment of aboriginal title, the government should not be permitted a second chance to litigate that question because it is dissatisfied with the outcome of the first appeal. To permit such relitigation would frustrate the basic policy of the interlocutory appeals provision of the Indian Claims Commission Act.

We have applied the law-of-the-case doctrine to preclude Indian tribes from relitigating an issue determined against [7]*7them in an interlocutory appeal. Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 204 Ct. Cl. 831, cert. denied, 419 U.S. 901 (1974). We follow the same practice here with respect to the United States.

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Bluebook (online)
612 F.2d 517, 222 Ct. Cl. 1, 1979 U.S. Ct. Cl. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-turtle-mountain-band-of-chippewa-indians-cc-1979.