Case No. 11-5049 UNITED STATES COURT OF APPEALS …Case No. 1:10-cv-00968-GK, Judge Gladys Kessler...

Case No. 11-5049___________________________________________________________

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

___________________________________________________________

TIMBISHA SHOSHONE TRIBE, et al.,

Appellants,

v.

KENNETH LEE SALAZAR, Secretary of Interior, et al.,

Appellees.____________________________________________________________

On Appeal from the United States District Court for the District of Columbia

Case No. 1:10-cv-00968-GK, Judge Gladys Kessler____________________________________________________________

REPLY BRIEF OF APPELLANTS____________________________________________________________

COUNSEL FOR APPELLANTS

Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959

Robert T. CoulterPhilomena KebecIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006

USCA Case #11-5049 Document #1317954 Filed: 07/11/2011 of 39

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

SUMMARY OF REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The Taking Cause of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Government’s Taking Concession. . . . . . . . . . . . . . . . . . . . . . . 3

B. The Government’s “Plenary Power” and “Retained Authority”Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. Classifications Harming Indian Tribes Must be Given Strict Scrutiny. . . . . 14

III. Plaintiffs-Appellants have authority to maintain this suit. . . . . . . . . . . . . . . 22

IV. The Preliminary Injunction Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

A. The District Court Erred in Finding Plaintiffs-Appellants are notLikely to Establish Their Authority to Sue.. . . . . . . . . . . . . . . . . . . 27

B. There is No Available Damages Remedy. . .. . . . . . . . . . . . . . . . . . 21

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

STATUTORY ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32


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TABLE OF AUTHORITIESCases

Absentee Delaware Tribe of Oklahoma and The Delaware Tribe of Indians v.United States,21 Ind. Cl. Comm. 344 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

*Adarand Constructors v. Pena, 515 U.S. 200 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21

Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F. 3d 8 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Askew v. Trs. of the Gen. Assembly of the Church of the Lord Jesus Christ of theApostolic Faith, 644 F. Supp. 2d 584 (E.D. Pa. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

*Babbitt v. Youpee, 519 U.S. 234 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 24

*Chippewa Cree Tribe v. United States, 73 Fed. Cl. 154 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

*Choate v. Trapp, 224 U.S. 665 (1912). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

*Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

* Authorities upon which we chiefly rely are marked with asterisks.


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Columbian Rope Co. v. West, 142 F.3d 1313 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) . . . . . . . . . . . . . . . . . . . . . 12

*Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-8, 15-21

*Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

*Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

*Hodel v. Irving, 481 U.S. 704 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

*Jones v. Meehan, 175 U.S. 1 (1899). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Karcher v. May, 484 U.S. 72 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Kincaid v. Rusk, 670 F.2d 737 (7 Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 26

Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

LeBeau v. United States, 474 F.3d 1334 (Fed. Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Minnesota Chippewa Tribe v. United States, 315 F.2d 906 (Ct. Cl. 1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


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Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 , 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) . . . . . . . . . . . . . . . . . . . . . 12

Morton v. Mancari, 417 U.S. 535 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Motor & Equip. Mfrs. Ass’n. v. Nichols, 142 F.3d 449 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 n. 8 (D.C. Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Narragansett Indian Tribe v. Nat’l Indian Gaming Comm., 158 F.3d 1335 (D.C. Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

O’Neal v. Cowles Magazines, 225 F.2d 43 (D.C. Cir. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Pueblo of Sandia v. Babbitt, 231 F.3d 878 (D.C. Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139 (D.C. Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Schering Corp. v. Shalala, 995 F.2d 1103 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

*Student Loan Mktg. Ass’n., v. Riley, 104 F.3d 397 (D.C. Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Syracuse Broadcasting Corp. v. Newhouse, 14 F.R.D. 168 (N.D.N.Y. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. Air Tour Ass’n v. FAA, 298 F.3d 997 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

*United States v. Creek Nation, 295 U.S. 103 (1935). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


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*United States v. Dann, 470 U.S. 39 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

*United States v. General Motors Corp., 323 U.S. 373 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

*United States v. Sioux Nation, 448 U.S. 371 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Western Shoshone Identifiable Group v. United States, No. 1:06-cv-00896-EJD, slip opinion (Fed. Cl. Nov. 24, 2009)(reprinted in Addendum II of Brief ofAppellants).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wright v. R.&L. Mkt., 9 F.R.D. 559 (1949).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Statutes

Western Shoshone Claims Distribution Act, Pub. L. No. 108-270,118 Stat. 805 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 17

25 U.S.C.A. §70u(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

25 U.S.C.A. §§ 1291, 1292 (2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Rules

Fed. R. App. P. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fed. R. App. P. 43(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fed. R. App. P. 43(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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Fed. R. Civ. P. 25(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Fed. R. Civ. P. 8(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Other Authorities

From the Record in Delaware Tribal Bus. Comm. v. Weeks,430 U.S. 73 (1977):

Brief for the Delaware Tribal Business Committee, et al., 1976 WL 181618.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Reply Brief for the Delaware Tribal Business Committee, et al, 1976 WL 181623.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brief for the Secretary of the Interior, 1976 WL 194271.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Reply Memorandum for the Appellants, 1976 WL 194272.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brief for Appellants Opposing Motion to Dismiss, 1976 WL 194377.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brief for Appellees, 1976 WL 194378.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brief for the Absentee Delaware Tribe Business Committee, 1976 WL 194387.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Reply Brief for the Absentee Delaware Tribe Business Committee, 1976 WL 194388.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Jurisdictional Statement of the Solicitor General of the United States, 1976 WL 194437.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


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SUMMARY OF REPLY

Defendants-Appellants’ Brief asserts, as the government has throughout this

case and in Indian cases generally, essentially unlimited governmental power over

Indian rights and property. But the arguments it presents are most significant not

for any reasoning or authority offered to support its positions – because there is

little to none – but for the concessions made on both of the major issues.

On the taking cause of action, the government makes the extremely

formalistic argument that the group of tribes specifically named in the Act, the

Western Shoshone Identifiable Group, has a vested interest in the award and could

claim a taking, but the Timbisha Shoshone Tribe does not, although it is one of the

tribes making up the Identifiable Group. The government offers no argument or

authority for this form-over-substance position, and in the process concedes the

taking issue.

The government also argues that the Tribe has no vested interest in the

judgment award because Congress “retained” authority to decide on a case by case

basis whether successful claimant tribes should receive any part of the awards

made to them by the Indian Claims Commission (Claims Commission). But the

Supreme Court has already decided this very issue to the contrary, and the

legislative history on this point is very strong against the government’s position.

On the equal protection claim, the government abandons the district court’s


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principal basis and reasoning for refusing to apply strict scrutiny – Indian

classifications are “non-suspect” – and offers an unconvincing substitute.

These arguments, that amount to concessions on the major issues, are

accompanied by the government’s heavy reliance on the Interior Department’s

recent decision giving temporary recognition to a faction of the Tribe whose leader

and many of whose members do not meet the qualifications for membership in the

Tribe set out in the Tribe’s Constitution. Nevertheless, the government argues that

solely because of the Interior Department’s decision, Plaintiffs-Appellants do not

have authority to maintain this suit and that the case is somehow moot. The only

facts before the district court on this issue were in a sworn statement presented by

Plaintiffs-Appellants that supported and attested to their authority to bring this

suit. In any event, the Interior Department’s temporary recognition of an opposing

faction does not deprive the Plaintiffs-Appellants of their authority to maintain

this suit, and the factual issues raised by this argument are not properly before the

Court in this appeal.

This case is about a straight-forward taking of property by Congress without

compensation. The case would present no difficulty but for the fact that the

property (the judgment award) belongs to Indian tribes and but for the argument

that Congress has “plenary power” – essentially extra-constitutional power – to

control, and do as it pleases with Indian tribes and their property. These


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arguments deny the most basic constitutional rights and the rule of law to one

specific race or ancestry – Indians – and should be soundly rejected by this Court.

ARGUMENT

I. The Taking Cause of Action.

A. The Government’s Taking Concession.

The government makes a technical argument about the taking issue that

would seem forgettably silly if it were not also a concession of the Tribe’s taking

claim. The government argues that there is no taking of the Tribe’s property

because the Act does not take explicitly from the Timbisha Shoshone Tribe but

from the “Western Shoshone Identifiable Group”; only the Identifiable Group is

the “owner of the fund” and can claim a taking. Brief of Defendants-Appellees at

27-28. “[P]laintiffs were not the holders of the judgment. The original judgment

was entered ‘for and on behalf of the Western Shoshone Identifiable Group.’” Id.

at 28 (emphasis in original). This is determinative, the government argues, even

though the government agrees that the Tribe is one of the “constituent” tribes of

the Identifiable Group. Id. at 25-26. The government offers no reasoning or

authority for the assertion that ownership rights in the name of a specific group of

entities or tribes confers no ownership rights on the entities or tribes themselves.

Would a fund owned by the “National League teams of Major League Baseball”

confer no ownership right on the Washington Nationals? The government’s


These factual allegations and all reasonable implications from them must1

be accepted as true for purposes of a motion to dismiss under Rule 12(b)(6). BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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argument seems an unsupportable throwback to the form-over-substance

formalism long discarded by our courts.

There is no genuine doubt that the Timbisha Shoshone Tribe is one of the

Western Shoshone tribes making up the Group. This was alleged as a matter of

fact in the Complaint, para. 17 (JA 15) and has been decided by Chief Judge1

Damich of the Court of Federal Claims in Western Shoshone Identifiable Group v.

United States, No. 1:06-cv-00896-EJD, at *14 of the slip opinion (Fed. Cl. Nov.

24, 2009)(reprinted in Addendum II of Brief of Appellants). Indeed, the

government formally admitted in that case, as it has here, that the Tribe is a

member of the Identifiable Group. JA 177. Chief Judge Damich has held in two

opinions in that case that the award fund is held in trust for the Timbisha

Shoshone Tribe and the other tribes making up the group and that the tribes are

“owners” and “beneficial owners” of the fund despite the fact that none of the

tribes is to receive any part of the award under the Distribution Act challenged

here. Western Shoshone Identifiable Group at *14, *4. That is the meaning of the

sentence in his decision, relied on by the government, saying that his decision that

the Tribe and other tribes have a present ownership interest in the award did not


5

“require the Tribal Plaintiffs to have vested interests in the proceeds of the

distribution of the Western Shoshone tribal trust funds.” Chief Judge Damich thus

rejected the government’s argument that the tribes can have no vested interest in

the award unless it is granted by the Distribution Act.

That the Tribe is a part of the Identifiable Group is also clear from the fact

that the Commission’s award was to compensate for the loss of lands that were

and are the homeland of the Tribe, as alleged in the Complaint. The Department

of the Interior has also recognized that the Timbisha Shoshone Tribe is part of the

Group in a report it made to identify the members of the Group. JA 193.

Yet, the government argues that, because the award was made to the

Identifiable Group and not to the Tribe by name, the Tribe has no vested interest

and is, therefore, in the same position as the individuals in LeBeau v. United

States, 474 F.3d 1334 (Fed. Cir. 2007). The government quietly but clearly

concedes that if the award was made to the Tribe, then the award is “tribal

property” and LeBeau does not apply. See Brief of Defendants-Appellees at 26,

fn. 15. The government points out that in Delaware Tribal Bus. Comm. v. Weeks,

430 U.S. 73 (1977), the award was made to two tribes, and this is said to account

for the Supreme Court’s conclusion that the award was tribal property. The award

in Weeks was a single award of money made jointly to the two tribes, denominated

simply as “plaintiffs”. Absentee Delaware Tribe of Oklahoma and The Delaware


6

Tribe of Indians v. United States, 21 Ind. Cl. Comm. 344 (1969). The award was

not apportioned or divided in any way by the Commission. Thus, the award in

Weeks was much like that in this case. The sole difference is that in this case the

award was made to a group that was made up of constituent tribes including the

Timbisha Shoshone Tribe. There is no reason why, in this case, the tribes should

have no rights and yet in Weeks they are conceded to own the award.

Even if this did not settle the issue of vested rights, the position of the Tribe

in relation to the judgment award is entirely different from the position of the

individuals in LeBeau in many other respects. Only tribes and identifiable groups

could make claims before the Claims Commission, and awards could be made only

to them, never to individuals. In this case the award was made to the Tribe as a

part of the Identifiable Group. The claim for which the award was made was for

the loss of lands belonging to the Tribe and lands belonging to the other tribes –

not for any wrongs to individuals. The payment of the award barred further claims

by the tribes making up the Group and those claiming under the tribes’ title; that

is, the tribes alone suffer that legal consequence of payment of the award, not any

individual. United States v. Dann, 470 U.S. 39 (1985). The award was paid to the

claimants, the Tribe or tribes making up the Group, and the fund was placed in

trust for them, as the Supreme Court has held (id. at 50) and as the government has

agreed. Brief of Defendants-Appellees at 23, fn. 11. The Supreme Court has said


The tribes that share a vested interest in the judgment award have various2

legal options for dividing the award if they wish to do so, including a negotiatedagreement, litigation, or seeking appropriate legislation.

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that “property” includes “every sort of interest the citizen may possess.” United

States v. General Motors Corp., 323 U.S. 373, 378 (1945). The claimant tribes

thus acquired a vested right in the award when it became final under the terms of

the Indian Claims Commission Act, whereas individuals could have no such right

and could gain a right to a share of the award only by some later grant or legal act

consistent with the rights of the tribes. This present vested interest in this award

on the part of the tribes has been recognized by the Court of Federal Claims as

discussed above.

To sum up this issue, a Claims Commission award and the Indian Claims

Commission Act do not create any rights at all for individuals. But the Tribe as a

member of the Identifiable Group has a clear right to a just share of the award.

Though it is uncertain exactly how much that share would be, in no event would

the Tribe’s share be nothing. In Weeks, the award was to two tribes, and the fact2

that the award was not apportioned among the tribes by the Commission did not

diminish the Supreme Court’s conclusion that the award is “tribal property.” The

government’s argument has no merit, and in the process, the government has

conceded the taking issue.


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B. The Government’s “Plenary Power” and “Retained Authority”Argument.

Defendants-Appellees also oppose the Tribe’s taking cause of action on the

ground that Congress has “plenary power” in the field of Indian affairs and,

pursuant to this power, has retained for itself the authority to determine who

should receive Indian Claims Commission judgment funds, including the power to

deny the funds entirely to the tribes awarded the judgments. Brief of Defendants-

Appellees at 11-12. This power is inconsistent, the government argues, with a

property right in the fund on the part of the Tribe.

This argument is directly contradicted by Weeks and the many other cases

that hold that Claims Commission awards are “tribal property,” the property of

tribes awarded the judgment. Weeks at 85. See, e.g., Minnesota Chippewa Tribe

v. United States, 315 F.2d 906, 914 (Ct. Cl. 1963); Chippewa Cree Tribe v. United

States, 73 Fed. Cl. 154, 161-62 (2006). The award could not be “tribal property”

if the tribes had no vested interest and Congress were free to withhold the award

or simply take it and give it to others.

The argument of retained congressional authority was addressed at length

and rejected by the Supreme Court in United States v. Dann, 470 U.S. at 45-47.

As the Court discussed in Dann, Congress considered and rejected the possibility

of retaining authority, opting instead for making decisions of the Claims


9

Commission as final as judgments of the Court of Claims. The practice of

enacting statutes to distribute Claims Commission awards could not, of course,

give Congress any power that the Constitution specifically forbids, and there is no

decisional authority at all to suggest that Congress in distributing an award can

effect a taking (without compensation) of that award from the tribe or tribes to

which the award was made by the Commission.

The government’s reliance on the supposed “plenary power” of Congress is

misplaced, because, despite the “plenary power” notion, the Supreme Court has for

more than 100 years refused to countenance the taking by congressional act of

property or property rights owned by Indian tribes or Indian individuals. Nothing

in the Constitution and nothing in the plenary power doctrine gives Congress

authority to take vested rights, especially federally created rights, from Indian

tribes without compliance with the Fifth Amendment.

It is well settled, even in the field of Indian affairs, that once Congress has

created or recognized a property right, it may not disturb that right without

compliance with the Fifth Amendment. In Jones v. Meehan, 175 U.S. 1 (1899), an

Indian chief was granted a tract of land in fee by treaty, and a subsequent action by

Congress interfering with that title was found invalid because it violated the Fifth

Amendment. Id. at 31. In Choate v. Trapp, 224 U.S. 665 (1912), the Supreme

Court found the tax exemption for an Indian allotment granted by federal law


10

pursuant to an agreement was a vested right and could not be later disturbed by

Congress without violating the Fifth Amendment. In so deciding, the Supreme

Court adopted the rule of statutory construction that Indian legislation is to be

liberally construed in the Indians’ favor and doubtful expressions are to be

resolved in their favor. 224 U.S. at 675. We will return to these rules of

construction as applied in this Court at p. 12 infra. This long-established rule

giving constitutional protection to federally created rights held by Indians applies

as well to tribes. See, e.g., United States v. Shoshone Tribe of Indians, 304 U.S.

111 (1938). This fundamental principle has been repeatedly reaffirmed by the

Supreme Court. Babbitt v. Youpee, 519 U.S. 234 (1997) (act of Congress

interfering with land rights of Indian allotment owners is unconstitutional); Hodel

v. Irving, 481 U.S. 704 (1987) (same). The Constitution protects tribes’ lands and

other property generally from taking without compensation. Lane v. Pueblo of

Santa Rosa, 249 U.S. 110, 113 (1919); United States v. Creek Nation, 295 U.S.

103, 109-10 (1935) (governmental power over the Creek Nation was not absolute

and did not enable the United States to give the tribal lands to others, or

appropriate them to its own purposes, without rendering, or assuming an

obligation to render, just compensation for them); United States v. Sioux Nation,

448 U.S. 371 (1980).


The only provisions of the Constitution cited as support for Congress’s3

supposed “plenary power” are the Indian Commerce Clause (“to regulateCommerce . . . with the Indian Tribes”) and the treaty power, which is not actuallya power of Congress. Brief of Defendants-Appellees at 20-21.

11

None of the cases or constitutional provisions cited by the government3

(Brief of Defendants-Appellees at 19-21) in support of Congress’s supposed

power over Claims Commission awards goes so far as to say that Congress can

take the award away from a successful tribal claimant without compensation and

give it to others. Congress created the Indian Claims Commission and mandated

that it decide claims filed by Indian tribes and make money awards to successful

claimants. By so doing, Congress authorized the Claims Commission to create

specific rights in successful tribes by making final judgments in their favor, and

Congress gave those determinations the same effect as a final judgment of the

Court of Claims. 25 U.S.C.A. §70u(a) (1976 ed.). Brief of Appellants, Statutory

Addendum. Having created specific rights on the part of successful claimant

tribes through the Indian Claims Commission Act, Congress was no longer free to

take or interfere with those rights without compliance with the Fifth Amendment.

The Indian Claims Commission Act provides that an award of the Claims

Commission “shall have the effect of a final judgment of the Court of Claims.” 25

U.S.C. A. §70u(a) (1976 ed.). If this statute means anything at all it means that an

award to a claimant is final and creates rights that cannot be disturbed by Congress


12

without payment of Fifth Amendment compensation. The government’s argument

that Congress can freely take the entire judgment award from the tribal owners and

give it to others makes this statutory provision meaningless.

This Court has recognized the long-established canons of construction for

federal statutes dealing with the rights of Indian tribes. In Cobell v. Norton, 240

F.3d 1081, 1101 (D.C. Cir. 2001), this Court wrote:

The governing canon of construction requires that "statutes are to beconstrued liberally in favor of the Indians, with ambiguous provisionsinterpreted to their benefit." Montana v. Blackfeet Tribe of Indians,471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). Therefore, even where the ambiguous statute is one entrusted to anagency, we give the agency's interpretation "careful consideration"but "we do not defer to it." Muscogee (Creek) Nation v. Hodel, 851F.2d 1439, 1445 n. 8 (D.C. Cir. 1988). This departure from theChevron norm arises from the fact that the rule of liberally construingstatutes to the benefit of the Indians arises not from ordinary exegesis,but "from principles of equitable obligations and normative rules ofbehavior," applicable to the trust relationship between the UnitedStates and the Native American people. Albuquerque Indian Rightsv. Lujan, 930 F.2d 49, 59 (D.C. Cir. 1991); see also County ofOneida v. Oneida Indian Nation of New York State, 470 U.S. 226,247-48, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (Court resolvesambiguity in favor of Indian claims); Pueblo of Sandia v. Babbitt, 231F.3d 878, 880 (D.C. Cir. 2000).

Id. at 1101; see also id. at 1100-01.

This very sound set of principles calls for an interpretation of the Claims

Commission Act that gives terms their usual meaning, not one that takes away or

diminishes the very rights created by the Act. A judgment and an award to a


13

successful claimant tribe or group of tribes must mean that they are entitled to

compensation in the stated amount and that the award belongs to them. A

determination or judgment that is final is not subject to alteration, and it creates

vested rights, as we discussed in our main Brief at pp. 6-10. The interpretation

offered by the government makes the Claims Commission process practically a

fraud, because, so the argument goes, Congress could deny or take back the

judgment award from a tribe that wins its claim.

The government’s construction of the Claims Commission Act is that a

Claims Commission award made to compensate tribes for the loss of their lands

gives the successful claimants no right at all to the judgment award or to any

compensation for the wrongs proven. Rather, the government argues, the award

was paid into a trust account for an abstract entity (the Identifiable Group) and not

for any of the Western Shoshone tribes, and the claims of all of the tribes were

thereby extinguished and barred by the Claims Commission Act. And yet the

government has no obligation to compensate the tribes in any way. This is a

construction of the Claims Commission Act, particularly of §70u(a), that is

extremely adverse to Indian tribes and thus inconsistent with the canons of

construction quoted above, not to mention the government’s trust obligations and

the rules of reason and equity.


14

II. Classifications Harming Indian Tribes Must be Given Strict Scrutiny.

Our main brief on behalf of Plaintiffs-Appellants urged reversal of the

district court based on two major equal protection arguments – that strict scrutiny

is appropriate because the Act imposes harm on a group designated in explicitly

racial terms; and that, if rational basis review were applied, expediting payment is

not a legitimate or rational justification for taking property and giving it to others.

The Brief of Defendants-Appellees challenges both arguments, but, significantly,

does not support some of the most significant aspects of the district court’s

analysis, including the key justification for refusing to apply strict scrutiny

adopted by the district court at the urging of the government.

The main rationale adopted by the district court for refusing to apply strict

scrutiny to this explicitly racial classification was the position advanced by the

government below: Indian classifications, though undeniably racial or ancestral,

are “non-suspect.” JA 47-48; see Defendants’ Motion to Dismiss, JA 14-15. Our

Brief of Appellants emphasized that, although there is some authority for such a

position, it is unsupportable and itself amounts to the worst kind of denial of equal

protection by courts – judicial exclusion of a particular race or ancestry from equal

protection of the law and from the minimal requirements of the rule of law.


The abandonment of the “non-suspect classification” position by the4

government in this case is significant for equal protection law generally and forIndian law and the rights of Indians specifically.

15

We welcome the government’s abandonment of this position. However,4

the government’s new analysis presented in the Brief of Defendants-Appellees

embodies the same position without explicit advocacy of it. Further, the

government now relies almost exclusively on a case, Delaware Tribal Bus. Comm.

v. Weeks, that does not even address the issues raised by the equal protection

claim in this case. And while the government cites and acknowledges the

relevance of Adarand Constructors v. Pena, 515 U.S. 200 (1995) – neither of

which the district court did – it ignores the clear holding and specific language of

Adarand and similar cases.

The government’s new position is that strict scrutiny does not apply to a

“distribution act.” Brief of Defendants-Appellees, at 35-37. “[D]istribution act”

refers, of course, to acts “in the Indian law context” (id. at 35) distributing funds

to Indian tribes or individuals – which brings the government’s position back,

once again and without explanation, to an exception to the usual equal protection

rules for one racial group, Indians. The “non-suspect” exemption of one racial

group from the rules that apply to all others has crept in by a back door.

This is required, the government argues, by Weeks, and application of strict


16

scrutiny “would require” that Weeks be “overruled” (id. at 35), because, the

government’s logic goes, Weeks dealt with a statute that “mentions ancestry” but

did not apply strict scrutiny. Id. at 35-36. However, the Supreme Court did not

apply or discuss strict scrutiny in Weeks, because in that case there was no claim

of discrimination on the basis of race or ancestry, nor any request or suggestion

that strict scrutiny be applied. And our argument is not that any mention of

ancestry triggers strict scrutiny, but that, as the Supreme Court held in Adarand

and other recent cases, legislation imposing harm (or conferring a benefit) on the

explicit basis of race or ancestry should receive strict scrutiny.

Weeks concerned the different paths taken by various Delaware Indians

after the government’s seizure of their land. Some associated with the Cherokees,

some moved to Oklahoma, some settled in Kansas. The lawsuit arose because the

Kansas Delawares were left out of a distribution act that included other Delawares.

The Kansas Delawares challenged their exclusion as a violation of equal

protection on the ground that it was not rational to include some Delawares and

exclude the Kansas Delawares in the distribution act.

All of the individual and group plaintiffs and defendants in Weeks were

Delaware Indians. The Kansas Delaware Indians did not and could not claim

discrimination against Delaware Indians, and therefore they did not request or

suggest that strict scrutiny be applied. In the Weeks decision, none of the


In the Weeks record, see particularly Jurisdictional Statement of the5

Solicitor General of the United States, 1976 WL 194437; Brief for AppellantsOpposing Motion to Dismiss, 1976 WL 194377; Reply Memorandum for theAppellants, 1976 WL 194272; Brief for the Absentee Delaware Tribe BusinessCommittee, 1976 WL 194387; Brief for the Secretary of the Interior, 1976 WL194271; Brief for Appellees, 1976 WL 194378; Brief for the Delaware TribalBusiness Committee, et al., 1976 WL 181618; Reply Brief for the AbsenteeDelaware Tribe Business Committee, 1976 WL 194388; Reply Brief for theDelaware Tribal Business Committee, et al, 1976 WL 181623.

17

Supreme Court’s opinions discusses or mentions strict scrutiny or any claim of

discrimination on the basis of race or ancestry, nor do the complaint or the

plaintiffs’ or defendants’ briefs before the Supreme Court. 5

The distribution act in Weeks mentions “ancestry” to define those current

Delaware Indians among the various groupings of Delaware Indians who would

receive funds from the distribution. 25 U.S.C.A. §§ 1291, 1292 (2006) (See

Addendum). This is not a racial or ancestral designation, anymore than

distinguishing African-Americans whose ancestors migrated from Mississippi to

Chicago as opposed to Philadelphia would be; and no harm was imposed or

benefit conferred based on race or ancestry. There was no claim, nor could there

be, of discrimination against Delaware Indians on the basis of race or ancestry.

The distribution act challenged as discriminatory on the basis of race in the

instant case – which the government characterized as “classifying Indians” (JA 47-

48) – specifically imposes harm on the “Western Shoshone Identifiable Group” of


18

Indian tribes and the “Western Shoshone Indians” by taking their property and

giving it to others. Not all distribution acts are equal. A general rule or holding

that dispenses with strict scrutiny for all distribution acts, as suggested by the

government, would be incoherent and irrational, and would undercut exclusively

Indian equal protection claims.

The government’s reliance on Weeks is misplaced. Nor do the other cases

cited by the government offer support for its position. Narragansett Indian Tribe

v. Nat’l Indian Gaming Comm., 158 F.3d 1335 (D.C. Cir. 1998), concerned

different treatment among Indian tribes and, like Weeks, did not involve a claim of

discrimination on the basis of race or ancestry. The Court specifically noted that

the parties “agree that strict scrutiny does not apply.” 158 F.3d at 1340. U.S. Air

Tour Ass’n v. FAA, 298 F.3d 997 (D.C. Cir. 2002), presented a challenge, like

Morton v. Mancari, 417 U.S. 535 (1974), discussed in our main brief at p. 21, to a

preference for Indians, regarding aircraft overflights of the Grand Canyon; the

Court focused, as in Morton, on the government’s interest in the particular

preference and on whether the preference was a political rather than racial

classification. Neither of these cases presents – as the taking of the Timbisha

Tribe’s property does – a racial discrimination challenge to a statute that imposes

direct, specific harm on a group explicitly described by race or ancestry.

The government did not present any argument in support of the district


19

court’s other grounds for refusing to apply strict scrutiny – that strict scrutiny is

applicable for explicit Indian classifications only as to state or local measures, but

not federal measures; and that strict scrutiny is not applicable to explicit

classifications for the purpose of identification. Nor did the government argue or

even assert before this Court or the district court that the statute meets the

compelling interest and least restrictive means requirements of strict scrutiny.

The government has argued that the statute satisfies rational basis

requirements, again with misplaced reliance on Weeks. Brief of Defendants-

Appellees, at 32-35. The government interest presented and analyzed is “to avoid

any further delay.” Id. at 32.

Essentially, the government is saying, if we generalize their argument, that a

long time had passed since it gave A ownership rights to specific property, and the

government wished to do something to transfer the property without further delay,

so this Court should rule that it was reasonable and legitimate to give A’s property

to B because B has some connection to A and it’s quicker that way. This would be

transparently inappropriate, if not laughable, if A were a more familiar sort of

entity with the capacity to own property and B were A’s members or others with

an interest in A. If A were, for example, a trust, corporation, or church, the

government would be used to drawing sharp distinctions between them and their

beneficiaries, shareholders, and parishioners, respectively.


20

Such property distinctions are, of course, important in American law, and

courts spend a lot of their time drawing such distinctions in ownership and other

rights and responsibilities as precisely, fairly, and according to applicable law as

possible. But often the government and the courts have taken the rights and

property of Indians tribes and Indians generally with a nonchalance and lack of

serious focus or attention that would be shocking if applied to others. Indeed,

among the various entities with the capacity to own property, this particular one –

an Indian tribe – has the strongest claim to a strong legal status independent of its

members or constituents. Unlike the other entities just mentioned, Indian tribes

have the status of nations and explicit constitutional legitimacy that includes the

power to enact and enforce their own laws.

No court should, as the district court did in this case, regard the property of

an Indian tribe as loosely or inconsequentially synonymous with the property of

members of the tribe. Taking property from an Indian tribe and giving it to

Indians associated with the tribe is not reasonable or legitimate because it’s

quicker.

This nonchalance with Indian property and rights is also apparent in the

government’s emphasis on Congress’ power with only dismissive consideration of

constitutional limits on that power. In this regard, the government might look to

its favorite case, Weeks, where the Court said:


21

the plenary power of Congress in matters of Indian affairs does not meanthat all federal legislation concerning Indians . . . is immune from judicialscrutiny . . . [including scrutinizing] to determine whether it violates theequal protection component of the Fifth Amendment. 430 U.S. at 83-85(citations and quotation marks omitted).

Finally, while the government, unlike the district court, acknowledges the

relevance of Adarand and similar equal protection decisions (cited in the Brief of

Appellants, at 16-17), it ignores their central holding and language. The

government even suggests a new category – “primary classification,” seemingly

meaning that a possible nonracial purpose for a racial classification might exempt

it from strict scrutiny – to avoid the clear meaning of Adarand. Brief of

Defendants-Appellees, at 36.

Specifically, Adarand said and held the following (515 U.S. at 223-24, 227

(emphasis added)):

1. “[A]ll racial classifications, imposed by whatever federal, state, or local

governmental actor, must be analyzed by a reviewing court under strict scrutiny.”

2. “The standard of review is not dependent on the race of those burdened

or benefitted by a particular classification.”

3. The reason racial classifications must be subject to strict scrutiny is that,

without strict scrutiny, “there is simply no way of determining what classifications

are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by

illegitimate notions of racial inferiority or simple racial politics.”


22

4. If there were any categorical exceptions, a racial exception, like the

Indian exception adopted by the district court and the government’s “distribution

act” exception applicable to only one race, would be the least appropriate, because

the standard of review “is not dependent on the race of those burdened or

benefitted.”

Strict scrutiny should not automatically be triggered by every mention of

race or ancestry in legislation, but where harm is imposed (or a benefit is

conferred) on the explicit basis of race or ancestry, strict scrutiny should be

applied. In such a case, if no compelling government interest is established or

even asserted by the government, such legislation should be invalidated.

III. Plaintiffs-Appellants have authority to maintain this suit.

Defendants-Appellees contend that the Tribe and the other Plaintiffs-

Appellants have not demonstrated that they have authority to maintain this suit,

because the Secretary of the Interior gave temporary recognition for 120 days to an

opposing faction of the Tribe. The government contends that the Secretary’s

recognition means that the opposing leader, George Gholson, should be

automatically substituted for the Plaintiffs-Appellants pursuant to Fed. R. App. P.

43(c)(2), and that the appeal should be dismissed as somehow moot.

The government has given a very one-sided and misleading account of the

facts. The Department of the Interior decided, on March 1, 2011, contrary to


23

applicable law, to recognize an opposing faction for a 120-day period, which has

expired, so that it would conduct a special election for all of the seats on the Tribal

Council. The Timbisha Constitution does not provide for nor sanction such an

election. Nevertheless, the faction temporarily recognized by the Department

conducted such a special election at the behest of the Department. In this election,

persons who are not members of the Tribe and who do not meet the membership

requirements of the Timbisha Constitution were permitted to stand for office and

to vote. No process was provided for contesting the election or for contesting the

qualifications of voters or candidates.

The government’s allegations and the related legal issues are very much in

dispute, and they are being litigated in a separate lawsuit by the Tribe in the

Eastern District of California, Timbisha Shoshone Tribe v. United States

Department of Interior, 2:11-cv-0995 (E.D. Cal.). In that suit, the Tribe challenges

the Department of Interior’s decisions concerning recognition and the

Department’s reliance on a special election not permitted under the Tribe’s

Constitution.

Nothing has occurred that has divested Plaintiffs-Appellants of their

authority and standing to bring this suit. Department of Interior recognition is not

necessary for the Timbisha Tribal Government to function pursuant to its own

Constitution, and recognition is not necessary for a tribal government to sue on its


24

own behalf, as the district court correctly decided. JA 341-45. See Golden Hill

Paugussett Tribe v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994).

The government’s argument is actually an affirmative defense based on

factual allegations that directly contradict the allegations of the Complaint, paras.

4-10. JA 13-14. Plaintiffs-Appellants have alleged that they are members of the

Tribal Council elected pursuant to the Tribal Constitution or that they are members

of the Tribe, and that the Tribal Council by resolution authorized this suit on

behalf of the Tribe. Of course, in reviewing a dismissal for failure to state a claim,

the allegations of the complaint must be taken as true, and the plaintiff must be

given the benefit of all reasonable inferences from those allegations. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Aktieselskabet AF 21. November

2001 v. Fame Jeans, Inc., 525 F. 3d 8, 17 (D.C. Cir. 2008). See Golden Hill

Paugussett Tribe at 58. See also Askew v. Trs. of the Gen. Assembly of the

Church of the Lord Jesus Christ of the Apostolic Faith, 644 F. Supp. 2d 584, 591

(E.D. Pa. 2009).

The government, with this argument, is attempting to litigate a possible

defense that cannot be properly asserted in this appeal from a dismissal under

Federal of Rule of Civil Procedure 12(b)(6). Such a defense must be raised in an

appropriate pleading, not in a 12(b)(6) motion. Fed. R. Civ. P. Rule 8(c). See

Syracuse Broadcasting Corp. v. Newhouse, 14 F.R.D. 168, 170 (N.D.N.Y. 1953);


25

Wright v. R.&L. Mkt., 9 F.R.D. 559, 560 (1949).

Further, the extra-record documents the government points to in support of

its argument are not properly considered on this appeal from the district court’s

ruling. O'Neal v. Cowles Magazines, 225 F.2d 43, 45 (D.C. Cir. 1955) (refusing

to consider documents not part of the record before the district court). See Fed. R.

App. P. 10(a).

The government’s allegations, even if proven, would not make this case

moot. "An action is moot when nothing turns on its outcome." Schering Corp. v.

Shalala, 995 F.2d 1103, 1105 (D.C. Cir. 1993); Motor & Equip. Mfrs. Ass'n. v.

Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998). However, the government barely

mentions the decisional law about mootness, and certainly does not meet the

“heavy” burden a mootness challenge entails. Reeve Aleutian Airways, Inc. v.

United States, 889 F.2d 1139, 1142-43 (D.C. Cir. 1989). This Court has held “[a]

dispute is not moot unless (1) there is no reasonable expectation that the alleged

violation will recur and (2) ‘interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation.’” Id. (quoting County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). In other words, a federal

court may only refrain from deciding a case on mootness grounds where “events

have so transpired that the decision will neither presently affect the parties' rights

nor have a more than-speculative chance of affecting them in the future."


26

Columbian Rope Co. v. West, 142 F.3d 1313, 1316 (D.C. Cir. 1998) (citations

omitted). The government has made no showing regarding any element of

mootness analysis as required by this Court.

Rule 43 of the Federal Rules of Appellate Procedure is of no help to the

government’s argument. Rule 43(c) in no way relieves a party of the heavy burden

required to succeed on a mootness challenge, because "substitution [under Rule

43(c)] is merely a procedural device that does not govern the question of

mootness." Kincaid v. Rusk, 670 F.2d 737, 741 (7th Cir. 1982). Indeed, the entire

purpose of the rule, like the civil procedure rule upon which it is modeled, is to

“prevent suits involving public officers from becoming moot due to personnel

changes.” Karcher v. May, 484 U.S. 72, 83 (1987) (emphasis added) (citing

Advisory Committee Notes on 1961 Amdt. to Fed. R. Civ. P. 25(d)(1)); see

Advisory Committee Notes on 1961 Amdt. to Fed. R. Civ. P. 25(d)(1) (“Automatic

substitution under the amended rule, being merely a procedural device for

substituting a successor for a past officeholder as a party, is distinct from and does

not affect any substantive issues which may be involved in the action.”).

Finally, even if the government were correct that Rule 43 requires

substitution of individual defendants based on disputed factual allegations outside

the appellate record, this would do nothing to impair the claims or the standing of

the Tribe itself. Rule 43 speaks only to substitution of “a public officer who is a


27

party” and in no way affects the capacity of any government entity to sue it its own

name. The government has not contended – and cannot contend – that the Tribe

itself does not have standing to assert its own rights and does not face an injury

that this Court can redress if the Tribe prevails on the merits.

V. The Preliminary Injunction Issues.

Some arguments in the Brief of Defendants-Appellees on the preliminary

injunction issue deserve a brief reply.

A. The District Court Erred in Finding Plaintiffs-Appellants are notLikely to Establish Their Authority to Sue.

The government (id. at 17, fn. 9) misstates the argument on pp. 24 and 25

of our main brief. We argue that the district court erred by assuming facts not in

the record in order to decide a factual issue, by ignoring the evidence before the

court, and by not conducting a hearing to permit the parties to submit evidence.

The government’s claim in that same footnote that Interior’s recognition of

an opposing faction divests Plaintiffs-Appellants of the ability to maintain this suit

is completely false. There is no legal authority whatever to support such an

argument.

B. There is No Available Damages Remedy.

In relation to the denial of a preliminary injunction, the government argues

that an action for damages is actually available to the Tribe. However, the


28

government ignores the conclusions of this Court in Student Loan Mktg. Ass’n., v.

Riley, 104 F.3d 397 (D.C. Cir. 1997), and the Supreme Court in Eastern

Enterprises v. Apfel, 524 U.S. 498 (1998), that in cases of this sort, a damages

remedy is not available and does not bar equitable relief. This is precisely the sort

of case comprehended by those decisions, because it involves a statute mandating

payments of cash, and there is no possibility that Congress could have intended to

pay compensation.

The government also argues that a damages action is not made impossible

for the Tribe by the sovereign immunity of the other Western Shoshone tribes that

would be “indispensible parties” in any such damages action for the taking of the

judgment fund awarded to all the tribes. The government argues that the United

States could represent the interests of the absent tribes. Brief of Defendants-

Appellees, at 40-1. However, the United States has interests that are absolutely

adverse to those of the tribes. These are the Western Shoshone tribes that were

awarded the judgment fund that the United States is now taking and distributing to

individuals (without compensation to the tribes). Each tribe has a potential claim

against the United States for the taking of its share of the judgment fund. The

United States could not reasonably claim to represent the interests of parties that

hold such potential claims.


29

CONCLUSION

Plaintiffs-Appellants respectfully request this Court to reverse the order

granting the motion to dismiss and to remand the case with instructions to issue a

preliminary injunction.

July 11, 2011 /S/

Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, MT 59601(406) 449-2006

Philomena KebecIndian Law Resource Center601 E Street, S.E.Washington, D.C. 20003(202) 547-2800

Of CounselDavid Kairys1719 North Broad StreetPhiladelphia, PA 19122(215) 204-8959


30

CERTIFICATE OF SERVICE

I certify this Reply Brief of Appellants was served on July 11, 2011 by

electronic filing using the Court of Appeals CM/ECF system on the following:

Brian C. TothAppellate SectionEnvironment and Natural Resources DivisionUnited States Department of JusticeP.O. Box 23795Washington, DC 20026-3795Counsel for Appellees

/S/

Robert T. CoulterIndian Law Resource Center602 North Ewing StreetHelena, Montana 59601(406) 449-2006


31

Certificate of Compliance with Type-Volume Limitation,Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed.

R. App. P. 32(a)(7)(B) because this brief contains 6,925 words, excluding the parts

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App.

P. 32(a)(6) because this brief has been prepared in a proportionally spaced

typeface using WordPerfect version X3, in New Times Roman 14 point type.

__________/S/__________

Robert T. CoulterAttorney for Plaintiffs-Appellants

Dated: July 11, 2011


32

STATUTORY ADDENDUM

25 U.S.C.A. §§ 1291, 1292 (2006)

§ 1291. Disposition of fundsThe funds appropriated by the Act of December 26, 1969 (83 Stat. 447, 453), topay a judgment in favor of the petitioners, the Delaware Tribe of Indians in docket298, and the Absentee Delaware Tribe of Western Oklahoma, and others, indocket 72, together with any interest thereon, after payment of attorney fees,litigation expenses, and such expenses as may be necessary in effecting theprovisions of this subchapter, shall be distributed as provided herein.

§ 1292. Membership roll requirementsThe Secretary of the Interior shall prepare a roll of all persons who meet thefollowing requirements:

(a) they were born on or prior to and were living on October 3, 1972; and

(b) they are citizens of the United States; and

(c)(1) their name or the name of a lineal ancestor appears on the Delaware Indianper capita payroll approved by the Secretary on April 20, 1906, or (2) their name or the name of a lineal ancestor is on or is eligible to be on theconstructed base census roll as of 1940 of the Absentee Delaware Tribe ofWestern Oklahoma, approved by the Secretary.


Case No. 11-5049 UNITED STATES COURT OF APPEALS …Case No. 1:10-cv-00968-GK, Judge Gladys Kessler...

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