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Wyandot Nation of Kansas v. United States

United States Court of Appeals, Federal Circuit

June 8, 2017

UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:15-cv-00560-TCW, Judge Thomas C. Wheeler.

          Mario Gonzalez, Gonzalez Law Office, Prof. LLC, Rapid City, SD, argued for plaintiff-appellant. Also represented by Brian John Leinbach, Engstrom, Lipscomb & Lack, Los Angeles, CA.

          Allen M. Brabender, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by John C. Cruden.

          Before Dyk, O'Malley, and Wallach, Circuit Judges.


          Dyk, Circuit Judge.

         The Wyandot Nation of Kansas ("Wyandot Nation") is a Native American tribe allegedly tracing its ancestry to the Historic Wyandot Nation. It claims to be a federally recognized Indian tribe and a successor-in-interest to all of the treaties between the Historic Wyandot Nation and the United States. On June 1, 2015, Wyandot Nation filed a complaint in the United States Court of Federal Claims alleging that the United States had breached its trust and fiduciary obligations with respect to two trusts that resulted from prior treaties, including one related to amounts payable under a treaty signed in 1867 and one related to the Huron Cemetery. The Court of Federal Claims dismissed without prejudice for lack of jurisdiction and standing. Wyandot Nation appeals. We affirm.



         One of the disputes here concerns the claimed entitlement of the appellant to an accounting of a trust fund allegedly resulting from an 1867 treaty (called the Category One claims). The background of the dispute is as follows.


         The Historic Wyandot Nation resided in modern-day Ohio and Michigan. In 1842, the Historic Wyandot Nation ceded to the United States all of its lands and possessions in Ohio and Michigan in exchange for a promise of 148, 000 acres west of the Mississippi. That land grant never occurred, forcing the Historic Wyandot Nation to purchase 1, 920 acres of land located in modern-day Kan- sas from the Delaware Tribe in 1848. In 1850, the Historic Wyandot Nation and the United States entered into a treaty, rescinding any claims the Historic Wyandot Nation may have had with respect to the previously promised 148, 000 acres, in exchange for $100, 000 and extinguishing the Historic Wyandot Nation's debt to the Delaware Tribe for its 1848 land purchase. See Treaty with the Wyandot, Apr. 1, 1850, 9 Stat. 987 ("Treaty of 1850").

         In 1855, the United States entered into another treaty with the Historic Wyandot Nation, in which the tribe agreed to be dissolved and to cede its lands to the United States, in exchange for the ceded lands to be divided in fee simple to the individual tribe members, a payment of $380, 000 to be distributed equally among tribe members, and the $100, 000 payment from the Treaty of 1850 also be distributed equally among tribe members. See Treaty with the Wyandots, Jan. 31, 1855, 10 Stat. 1159 ("Treaty of 1855").

         During the Civil War, many Native American tribes suffered hardships and were forced to sell their lands. In response, in 1867, the United States entered into a new treaty with several tribes. See Treaty with the Seneca, etc., Feb. 23, 1867, 15 Stat. 513, 516 ("Treaty of 1867"). The Treaty of 1867 set aside 20, 000 acres of federally purchased lands in Oklahoma to become a reservation for a newly-constituted Wyandot Tribe, and it allowed individual Wyandot Indians to choose to either become members of this newly reconstituted tribe or become United States citizens.

         Schedule A, appended to the Treaty of 1867, provided for the payment of $28, 109.51-to be divided and paid to Wyandot Indians and their heirs-to satisfy what was determined to be due from the claims of the Wyandots against the United States, for all of its former treaties and sales of treaty lands. The parties dispute whether these funds were properly paid. The United States asserts that it had correctly paid the amounts due in 1882 to the rightful claimants. The appellant asserts that there are unpaid amounts due to the heirs of Wyandot Nation that the United States currently holds in trust, for which the appellant is owed a full accounting and fiduciary trust duties.

         The parties in this case also dispute the relationship of the modern-day Wyandot Nation of Kansas to the Wyandot Tribe recognized by the Treaty of 1867. The government asserts that this newly reconstituted tribe became known as the Wyandotte Nation. The federal government recognizes the Wyandotte Nation of Oklahoma as its present day successor. That tribe has its headquarters in Wyandotte, Oklahoma.

         The appellant, on the other hand, asserts that despite the Treaty of 1855, the Historic Wyandot Nation did not dissolve. Rather, the appellant contends that after the Treaty of 1867 was executed, some tribe members moved to the Oklahoma reservation established under the treaty, while others chose to remain in Kansas. According to the appellant, these two separate bands-of which the Wyandotte Nation of Oklahoma and the Wyandot Nation of Kansas are the modern-day successors-were both a part of the newly constituted Wyandot Tribe in 1867. The appellant therefore asserts that it is a federally recognized tribe by virtue of the Treaty of 1867. However, in a 1996 settlement agreement with the Wyandotte Nation of Oklahoma over disputed land use, the appellant also admitted that "the Kansas Wyandot is a non-federally recognized . . . Indian Tribe." S.A. 36.

         In 1937, the Oklahoma band reorganized as a separate tribe under the Oklahoma Indian Welfare Act ("OIWA"), which provided that "[a]ny recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare." 49 Stat. 1967 § 3 (1936). In 1959, the Kansas band changed its name to the Wyandot Nation of Kansas. The Wyandot Nation of Kansas is currently incorporated under Kansas law.


         In 1994, Congress enacted the American Indian Trust Fund Management Reform Act ("Reform Act"), Pub. L. No. 103-412, 108 Stat. 4239 (1994), which provided that "[t]he Secretary [of the Interior] shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of an Indian tribe." 25 U.S.C. § 4011(a). The Reform Act defined "Indian tribe" as "any Indian tribe, band, nation, or other organized group or community, . . . which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 25 U.S.C. § 4001(2).

         Almost simultaneously, Congress also enacted the Federally Recognized Indian Tribe List Act of 1994 ("List Act"), Pub. L. No. 103-454, 108 Stat. 4791 (1994), which provided that

the Secretary of the Interior is charged with the responsibility of keeping a list of all federally recognized tribes; . . . the list published by the Secretary shall be accurate, regularly updated, and regularly published . . .; and . . . the list of federally recognized tribes which the Secretary publishes should reflect all of the federally recognized Indian tribes in the United States which are eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

Id. § 103(6)-(8). The List Act approved existing regulations spelling out a mechanism whereby any entity not on the annual Department of the Interior ("Interior") list can pursue federal recognition. See 25 C.F.R. pt. 83(c).

         Wyandot Nation is not on the list maintained by the Secretary of the Interior. The appellant petitioned Interior in 1996 for federal recognition pursuant to the List Act regulations. Interior preliminarily determined that "the Wyandot Nation of Kansas, which consists of the descendants of the citizen Wyandotts of Kansas terminated in 1855, [does not qualify for] Federal acknowledgement through the administrative process and can only become a Federally recognized Indian Tribe by an act of Congress." S.A. 20. The appellant did not pursue further administrative or judicial review of this agency action.

         One other statutory provision is pertinent. During the period from 1990 through 2014, the Department of Interior Appropriation Act riders provided that claims for losses or mismanagement of Indian trust funds do not accrue "until the affected Indian tribe or individual Indian has been furnished with an accounting of such funds." See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 2, 128 Stat. 5, 305-06 ("Appropriation Riders").


         A second dispute in this case (called the Category Two claims) concerns the ownership of the Huron Cemetery in modern-day Kansas City, and funds derived from easements over this cemetery property.

         Under the Treaty of 1855, certain ceded lands were exempt from assignment to individual members, including the Huron Cemetery, which was a historic Wyandot burial ground. Easements for city streets have traversed the Huron Cemetery since 1857. The parties dispute the current ownership interests of the Huron Cemetery. The appellant asserts that the United States holds the Huron Cemetery land, as well as monies derived from easements, in trust for the benefit of the Wyandot Nation of Kansas. The United States maintains that it ...

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