r. bruce johnston, wsba #4646 the honorable justin l. … · case 2:09-cv-00018-jlq document 315...

SUPPLEMENTAL BRIEF OF WAPATO HERITAGE, LLC PAGE 1

LAW OFFICES OF DALE M. FOREMAN, P. S. 124 N. Wenatchee Ave., Suite A

P.O. Box 3125 Wenatchee, Washington 98807

(509) 662-9602 Fax (509) 662-9606

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R. Bruce Johnston, WSBA #4646 The Honorable Justin L. Quackenbush Johnston Lawyers, P.S. 2701 First Avenue, Suite 340 Seattle, WA 98121 (206) 866-3230; Fax: (206) 866-3234 [email protected] Dale M. Foreman, WSBA #6507 Law Offices of Dale M. Foreman, P.S. P.O. Box 3125 124 N. Wenatchee Ave., Suite A Wenatchee, WA 98807 (509) 662-9602; Fax: (206) 662-9606 [email protected]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

PAUL GRONDAL, et al., Plaintiffs, v. UNITED STATES OF AMERICA; et al., Defendants.

)) ) ) ) ))))

Case No. 2:09-cv-0018-JLQ

SUPPLEMENTAL BRIEF OF WAPATO HERITAGE, LLC

COMES NOW Defendant Wapato Heritage, LLC (“Wapato Heritage”), by

and through counsel, and submits this brief in response to the Court’s order of

January 10, 2013.

I. The Act of June 15, 1935 Does Not Apply

It is undisputed that the Indian Reorganization Act of June 18, 1934 (the

“I.R.A.”) does not apply to the Moses Allotments. See 25 C.F.R. Ch. I, App. The

I.R.A. forbade further allotments from reservation land but exempted from its scope

allotments not within the geographical boundaries of a reservation. See 25 U.S.C.

§§ 461, 468. That the I.R.A. does not apply to the Moses Allotments also means that

the Moses Allotments do not form a reservation.

Case 2:09-cv-00018-JLQ Document 315 Filed 01/22/13

mailto:[email protected]





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Such a conclusion is consistent with the purpose of the I.R.A., which was to

restore and preserve reservations as tribal homelands. See 25 U.S.C. §§ 463, 467. It

also comports with the BIA’s own definition of a reservation: “A federal Indian

reservation is an area of land reserved for a tribe or tribes under treaty or other

agreement with the United States, executive order, or federal statute or

administrative action as permanent tribal homelands, and where the federal

government holds title to the land in trust on behalf of the tribe.”

http://www.bia.gov/FAQs/index.htm (emphases added). That is, as Wapato

Heritage argued on January 10, 2013, the concept of a reservation is tied to a tribe,

and the government holds the lands for the tribe as a collective homeland. See S.

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 346 (1998) (when the Moses

Agreement was made, ratified and implemented “tribal ownership was a critical

component of reservation status”).

Following the dissolution of the Columbia Reservation, the only remaining

Indian lands—the Moses Allotments—were expressly set apart for specific

individuals, not for any tribe. See ECF No. 239-1 at 21-27. If the Indians eligible to

receive Moses Allotments desired to live on a reservation as part of a tribe, they

were given the choice to remove to the Colville Reservation. See ECF No. 234-2.

Thus, the Columbia Reservation has not existed since the Moses Agreement was





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ratified and implemented by executive order, consistent with the common parlance:

the land at issue is called the Moses Allotments, not the Columbia Reservation.1

Because the Moses allotments are not a reservation, the Act of June 15, 1935

does not apply; for the 1935 Act to apply, two conjunctive conditions precedent

must have been met. ECF No. 234-10. First, the trust period for the land must have

expired before December 31, 1936, a category that includes the Moses Allotments,

the trust period on which was to expire March 8, 1936. Second, the “reservation

containing such lands” must have voted or would thereafter vote to exclude itself

from the application of the I.R.A. This second condition is not met for two reasons:

(1) the Moses Allotments are not a reservation, as argued, and (2) even if they did

constitute a reservation, they did not, according to the federal government, vote to be

excluded from the I.R.A. See Theodore Haas, Ten Years of Tribal Government 1 Nor is there any merit to the notion that the Moses Allotments are part of the

Colville Reservation. The whole purpose of the Moses Agreement was to allow

Indians the choice of going to the Colville Reservation, or staying and receiving an

allotment. E.g., ECF No. 234-2. The administrative decision to which the Tribe cites

expressly did not decide if the Colville tribe was the successor or representative of the

Moses Band. ECF No. 304-1 at 49, ¶ 2. Because the Moses Allotments were made to

specific individuals, the only way for the Colville Tribe to have any interest in them is

by gift, devise, or purchase; and discovery in this case established the Colville Tribe

obtained its interests by purchase—mostly in the early 1990’s, just before announcing

the casino sub-lease.





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Under I.R.A., Table A at 19 (available at http://www.doi.gov/library/internet/

subject/upload/Haas-TenYears.pdf) (listing the tribes that voted on the application of

the I.R.A.; the Columbia or Moses Band did not vote at all). Moreover, it is

undisputed that the Moses Allotments are not within the boundaries of the Colville

Reservation; they are many miles away from the nearest boundary of that

Reservation. And, the contention that the Moses Band was somehow absorbed into

the Confederated Tribes of the Colville Reservation, that contention is not

supportable because the Colville Confederated Tribes did not exist until its

constitution was adopted in 1938, several years after the I.R.A. vote was taken, and

several years after the trust status of the Moses Allotments expired on March 8,

1936. Id at 34.

II. The Moses Allotments Are Not Held in Trust

Because the Act of June 15, 1935 does not apply, the trust period on the

Moses Allotments expired March 8, 1936, ten years after President Coolidge last

extended it. The Tribes and the government have argued that President Wilson’s

1920 Order, which extended the trust period on public domain patents for twenty-

five years, somehow applies to the Moses Allotments. They are wrong for the

reasons given in Wapato Heritage’s response (ECF No. 293 at 10-13), and for an

additional, independent, conclusive reason. Assuming, arguendo, that the Moses

Allotments were made from the public domain and would thus fall within the scope

of the 1920 Order, the February 10, 1926 Order of President Coolidge effectively

repealed and/or modified the earlier order, as to the Moses Allotments. The specific





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governs the general, see, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

132 S. Ct. 2065, 2071 (2012), and, when in conflict, the later in time governs the

earlier in time, see, e.g., Lockhart v. United States, 546 U.S. 142, 149 (2005). If,

again arguendo, the 1920 Order were ever applicable, it would have extended the

trust period on the Moses Allotments to March 8, 1951. The 1926 Order specifically

extended the trust period for the Moses Allotments only for ten years “from March

8, 1926,” or to March 8, 1936. ECF No. 234-8. The 1926 Order and the 1920 Order

irreconcilably conflict, meaning the specific, later order governs. The trust period

for the Moses Allotments expired March 8, 1936; the owners of these allotments

now possess fee interests under the plain, and unambiguous, language of the 1906

Act. ECF No. 234-3.

III. The Court Has the Authority to Direct the Issuance of Fee Patents

Because the trust period of the Moses Allotments expired on March 8, 1936,

the owners are entitled to fee patents, and the Court may so order. Wapato Heritage

has sought declaratory relief stating that the Moses Allotments are fee land and the

owners are entitled to fee patents. ECF No. 228 at 26-27; see also FRCP 57 and 28

U.S.C. § 2201 (the court “may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further relief is or could be

sought”); Fed. R. Civ. P. 54(c) (judgment will include all relief to which a party is

entitled). Should the Court grant such relief, Wapato Heritage is confident that the

federal government (specifically, the Department of the Interior) would comply with

the Court’s judgment and issue the patents.





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If the government refused to comply, a writ of mandamus would lie to compel

this ministerial task. See Bailess v. Paukune, 344 U.S. 171, 173 (1952) (issuance of

a fee patent is a ministerial task when deceased Indian’s beneficiary is a non-Indian);

Work v. U.S. ex rel. McAlester-Edwards Coal Co., 262 U.S. 200, 208-09 (1923)

(mandamus is appropriate to direct the issuance of a patent when the governing law

commands its issuance). In this case, the 1906 Act is mandatory and allows no

discretion: when the trust period expired, the “United States will convey” the Moses

Allotments to the allottees in fee simple. ECF No. 234-3.2 A writ of mandamus

would allow this Court to order the issuance of fee patents if the government refused

to comply with the Court’s judgment that the Moses Allotments are fee land and the

owners are entitled to such patents.

IV. Plaintiffs Have Paid Rent

At oral argument, the Court queried whether Plaintiffs had paid rent for their

use of MA-8. They have timely paid all rental payments to Wapato Heritage,

including the most recent payment on January 1, 2013. Wapato Heritage is currently

applying these funds to offset the overpayments Wapato Heritage (and/or its

predecessor in interest, Bill Evans) made to the Indian landowners under the Master 2 The nondiscretionary nature of the language in the 1906 Act is confirmed by contrast

to the expressly discretionary language of the 1910 Act, which allowed an Indian to

petition the Secretary of the Interior for a fee patent predicated on a finding of

competency. See ECF No. 234-7 at 21; 25 C.F.R. Part 152. The competency

determination was specifically left to the Secretary’s discretion. Id.





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Lease as discovered by the 2005 Sells Audit, though in the past these funds were

forwarded to the Indian landowners. Also, Wapato Heritage received a letter from

Colleen Kelley, solicitor for the Department of the Interior, dated March 13, 2009,

stating that Wapato Heritage was due a refund on rents paid.

I declare under penalty of perjury that the facts contained in the foregoing

paragraph are true and correct to the best of my knowledge and belief.

/s/ Jeffrey Webb, Manager, Wapato Heritage, LLC

V. Representation of Indian Landowners

On January 20, 2010, undersigned counsel wrote a letter to counsel for the

federal defendants raising this issue and encouraging the appointment of

independent counsel. See Attachment. Wapato Heritage continues to assert that

such representation is necessary in this matter due to the government’s unwaivable

conflict of interest, and submits its 2010 letter as its position on that issue.

DATED this 22nd day of January, 2013.

JOHNSTON LAWYERS, P.S.

/s/ R. Bruce Johnston R. Bruce Johnston, WSBA # 4646 2701 First Street, Suite 340 Seattle, WA 98121 (206) 866-3230 Fax: (206) 866-3234 [email protected]

Attorneys for Plaintiffs LAW OFFICES OF DALE M. FOREMAN, P.S.

/s/ Dale M. Foreman Dale M. Foreman, WSBA #6507



r. bruce johnston, wsba #4646 the honorable justin l. … · case 2:09-cv-00018-jlq document 315...

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