It was up to the Eighth U.S. Circuit Court of Appeals to interpret just what the federal government meant when it brokered an 1863 treaty that offered a loyal group of American Indians a parcel of land in southwestern Minnesota but never followed through on the deal.
Minneapolis attorney Erick Kaardal and his law firm filed a lawsuit on behalf of some descendants of Mdewakanton Sioux Indians who were promised but never given 12 square miles of land as a reward for siding with white settlers in the U.S.-Dakota War of 1862. The suit sought to acquire the land and evict 75 private landowners, some municipal entities and the Lower Sioux Indian Community.
Last summer, however, U.S. District Judge Michael Davis dismissed the lawsuit, calling Kaardal’s claims “completely frivolous without a factual or legal basis” and ordered Kaardal to pay “severe sanctions” by reimbursing more than $281,900 worth of attorneys’ fees and costs to the groups he sued.
Kaardal appealed. In its ruling, the federal Appeals Court agreed with Davis on one point and with Kaardal on the other.
The Appeals Court said the 1863 Act authorized the government “to set apart public lands … to each individual” — as opposed to a tribe — “who exerted himself in rescuing the whites” during the conflict.
The lawsuit, therefore, concerned lands allocated to individual Indians, not a tribe’s right to the lands, and can’t be considered part of federal common law — as prescribed by a 1974 U.S. Supreme Court case involving the Oneida tribe.
The claims, the court said, can survive only if the 1863 treaty provides a “private remedy” for the tribe to acquire the land. The court said it doesn’t.
“The basic structure of the 1863 Act … indicates Congress did not intend to create a private remedy for the loyal Mdewakanton,” the Appeals Court wrote.
It upheld Davis’ dismissal of the case. But the court disagreed with Davis’ statements that the claims were “completely frivolous without a factual or legal basis” and reversed the sanctions.
In fact, the court said, “We disagree that appellants and their counsel failed to set forth colorable factual and legal arguments to support their claims …
“Federal Indian law is complex,” the court said.
Attorney Greg Erickson, Kaardal’s law partner, said Thursday that they are pleased that the Appeals Court reversed the sanctions but “we are disappointed that we did not obtain the complete reversal of the dismissal which we expected.”
Erickson said the firm is reviewing the Appeals Court decision to see what its next step should be.