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March 17, 1988

Edna Emerson Littlewolf, et al., Plaintiffs,
Donald Paul Hodel, et al., Defendants, and State of Minnesota, et al., Defendant-Intervenors

The opinion of the court was delivered by: RICHEY



 In this case, plaintiffs, twenty-two members of the White Earth Band of Chippewa Indians, seek a judgment declaring that the White Earth Reservation Land Settlement Act of 1985 ("the White Earth Act" or "the Act") is unconstitutional. In the alternative, plaintiffs ask the Court to find that the defendants have failed to abide by certain trust obligations owed to plaintiffs; if the Court so finds, they also ask the Court to order defendants to perform those duties before taking any further action under the White Earth Act.

 Plaintiffs have asked for a preliminary injunction and for summary judgment on their claims. In addition, they seek certification of a class, pursuant to Fed. R. Civ. P. 23(b)(2), consisting of "all Indians whose claims to land on the White Earth Reservation have been adversely affected by the White Earth Reservation Land Settlement Act." Plaintiffs' Motion for Class Certification, at 2. Defendants oppose the plaintiffs' motions and also ask the Court to dismiss the action, a motion that the Court will treat as one for summary judgment, pursuant to Fed. R. Civ. P. 12(b). *fn1" Defendant-intervenors ask for summary judgment in their favor.

 Due to exigencies of time, the Court combined a hearing on the preliminary injunction with a hearing on the defendants' and defendant-intervenors' motions and a hearing on the merits. The Court has also heard from the parties on the class certification motion. After carefully considering the arguments advanced in Court, the voluminous memoranda and exhibits submitted by the parties and intervenors, and the underlying law, the Court will grant plaintiffs' motion for class certification. The Court will also, however, grant defendants' and defendant-intervenors' motions for summary judgment.


 Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, , 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The facts in this case are undisputed and are necessary background to the legal analysis that follows.

 Through a series of treaties culminating in the White Earth Treaty of 1867, 16 Stat. 719, the Chippewa Indians ceded most of their lands in Minnesota in exchange for certain payments and establishment of the 830,000-acre White Earth Reservation. Under the General Allotment Act of 1887 (better known as the Dawes Act) and the Nelson Act of 1889, Congress established and applied to the Chippewa Indians a system for converting this and other reservation land to individual ownership; the Acts also provided that the United States would hold each individually allotted parcel in trust for a period of time. Subsequent statutes and Executive Orders so extended this trust period that the trust has never terminated. See Indian Reorganization Act of June 18, 1934, 25 U.S.C. § 462; Act of June 25, 1910, 36 Stat. 855 (codified at 25 U.S.C. 372), Nelson Act of 1889, 25 Stat. 642; General Allotment Act of 1887, 24 Stat. 388; Executive Orders Nos. 5953 (1932), 5768 (1931), 4642 (1927).

 Seemingly in disregard of this trust obligation, Congress enacted the Clapp Amendment of 1906, which removed all restrictions on alienation of land allotments to adult "mixed blood" members of the White Earth Band of Chippewa and authorized the Secretary of the Interior to grant unrestricted fee simple land patents to sufficiently competent adult full-blood Chippewa. 34 Stat. 353. As a result, these lands no longer enjoyed the tax-exempt status of properties held in trust by the federal government. See Choate v. Trapp, 224 U.S. 665, 56 L. Ed. 941, 32 S. Ct. 565 (1912). State and local governments began to tax the allotted properties, many of which were lost through tax forfeitures. See State v. Zay Zah, 259 N.W.2d 580 (Minn. 1979), cert. denied, 436 U.S. 917, 56 L. Ed. 2d 758, 98 S. Ct. 2263 (1978).

 In 1979, the Minnesota Supreme Court held that an Indian's vested right to freedom from taxation on allotments held in trust by the United States could not be altered by the Clapp Amendment and, therefore, the tax forfeiture of plaintiff's allotment was invalid. Id. This decision clouded title to vast areas of Minnesota land. In response to this untenable situation, Congress enacted the White Earth Reservation Land Settlement Act of 1985. See, e.g., Pub. L. 99-264 § 2, 100 Stat. 61 (hereafter "White Earth Act"); S. Rep. 192, 99th Cong. 1st Sess. 1 (1985).


 Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), plaintiffs have moved to certify a class consisting of "all Indians whose claims to land on the White Earth Reservation have been adversely affected" by the White Earth Act. Plaintiffs' Motion for Class Certification, at 2. The Court must grant this motion.

 Under Fed. R. Civ. P. 23, a party may bring a class suit if the class is so numerous that joinder is impracticable, there are common questions of law or fact, the parties' claims are typical of the class claims, and the representative parties will fairly and adequately protect the interest of the class. A party seeking certification under Fed. R. Civ. P. 23(b)(2) must also be able to show that those opposing the class acted or refused to act on "grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Plaintiffs satisfy these criteria.

 No party disputes plaintiffs' contention that several thousand members of the White Earth Band may have a land claim that is affected by the White Earth Act. Accordingly, plaintiffs more than meet the test for numerosity of class members. See, e.g., E.E.O.C. v. Printing Industry, Inc., 92 F.R.D. 51, 53 (D.D.C. 1981). Similarly, there is no dispute that plaintiffs' claims revolve around questions of law that will affect all members of the potential plaintiff class. As such, plaintiffs satisfy the "common questions of law or fact" inquiry. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 701, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979); 1 Newberg on Class Actions § 3.10 (1985).

 Since the parties agree that injunctive and declaratory relief are the only remedies that the Court could issue in this case, the sole areas of controversy concern whether plaintiffs raise claims typical of those of the absent class members and whether plaintiffs will adequately represent the absentees. Despite the strenuous protests of defendants and defendant-intervenors, the Court finds that plaintiffs satisfy these requirements as well.

 The typicality requirement ensures that the claims of the representative and absent class members are sufficiently similar so that the representatives' acts are also acts on behalf of, and safeguard the interests of, the class. See 7A C.A. Wright, A. Miller & M.K. Kane, Federal Practice and Procedure: Civil § 1764. When, as here, the representatives and the absent class members would proceed on the same legal theory and would raise claims arising from the same event or course of conduct, the class members are deemed to be raising claims "typical" of those of the class as a whole. Id.; see also Streicher v. Prescott, 103 F.R.D. 559, 561 (D.D.C. 1984); 1 Newberg on Class Actions § 3.13.

 Defendants and defendant-intervenors maintain that plaintiffs fall short of the typicality requirement because the named plaintiffs do not allege that they represent every possible category of land claimant. In addition, they argue that plaintiffs impermissibly rely on their racial identity with other White Earth members as proof of their typicality. Defendants and defendant-intervenors misapprehend the nature of the plaintiffs' case.

 The types of land claims plaintiffs could allege in an action to recover allotted land are utterly irrelevant to this suit. Here, plaintiffs ask the Court to consider the constitutionality of a statute governing all White Earth Band land claims, or, in the alternative, to force the United States to carry out certain trust duties before those land claims may be settled or vindicated. As any person who has a claim under the statute could lodge this exact suit, factual distinctions between the underlying claims have no bearing on the named plaintiffs' "typicality." See, e.g., Wagner v. Taylor, 266 U.S. App. D.C. 414, 836 F.2d 578, 591 (D.C. Cir. 1987); Pratt v. Heckler, 629 F. Supp. 1496, 1503 (D.D.C. 1986).

 Similarly, defendants and defendant-intervenors wrongly suggest that the named plaintiffs rely solely on their racial heritage as proof of the similarity of their claims to those of other White Earth Band members. This is not so. Rather, plaintiffs bring claims that are closely related, in cause and legal theory, to the claims that could be asserted by any individual affected by the White Earth Act. Plaintiffs' racial heritage is neither the ground of their legal claim nor a fact underlying that claim. As such, the law's proscription against the use of racial identity to support a finding of typicality is not relevant to this case. See General Telephone Co. v. Falcon, 457 U.S. 147, 159 n.15, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982).

 Finally, plaintiffs must prove that they "fairly and adequately" represent the proposed class. This requirement incorporates two principal criteria: "'1) the named representative[s] must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representatives must appear able to vigorously prosecute the interests of the class through qualified counsel.'" National Association for Mental Health, Inc. v. Califano, 230 U.S. App. D.C. 394, 717 F.2d 1451, 1458 (D.C. Cir. 1983), cert. denied sub nom. Wagshal v. Crozer-Chester Medical Center, 469 U.S. 817, 83 L. Ed. 2d 32, 105 S. Ct. 85 (1984) (quoting National Association of Regional Medical Programs, Inc. v. Mathews, 179 U.S. App. D.C. 154, 551 F.2d 340, 345 (D.C. Cir. 1976), cert. denied, 431 U.S. 954, 53 L. Ed. 2d 270, 97 S. Ct. 2674 (1977); Arnett v. American National Red Cross, 78 F.R.D. 73, 75 (D.D.C. 1978). Defendants and defendant-intervenors argue that there may be members of the White Earth Band who are satisfied with the remedies available under the White Earth Act and would not challenge the Act's constitutionality. As such, they maintain, plaintiffs do not meet the "adequacy of representation" test. *fn3"

 Basic considerations of fairness require the Court to undertake a searching inquiry into the adequacy of representation, for any representation that falls short of the standard may well infringe the due process rights of absent class members. See, e.g., Hansberry v. Lee, 311 U.S. 32, 45, 85 L. Ed. 22, 61 S. Ct. 115 (1940); National Association for Mental Health, Inc. v. Califano, 717 F.2d at 1457. This inquiry must be especially careful in a motion for class certification under Fed. R. Civ. P. 23(b)(2), as members cannot "opt out" of a class certified under that provision of the rule. See Federal Practice and Procedure, § 1793.

 The Court is satisfied that class certification is proper in this case. While actual antagonism between class members, or a "strong likelihood" of antagonism, would defeat class certification, see, e.g., Fink v. National Savings & Trust Co., 249 U.S. App. D.C. 33, 772 F.2d 951, 965 (D.C. Cir. 1985) (Scalia, J., concurring in part and dissenting in part); Phillips v. Klassen, 163 U.S. App. D.C. 360, 502 F.2d 362, 366-67 (D.C. Cir.), cert. denied, 419 U.S. 996, 42 L. Ed. 2d 269, 95 S. Ct. 309 (1974), incantations of the potential for antagonism are insufficient. As defendants have not even attempted to show that there is any likelihood that class members have antagonistic interests, the Court cannot be persuaded by defendants' arguments. See Robbins v. Kleindienst, 383 F. Supp. 239, 241 (D.D.C. 1974). *fn4"

 Defendants and defendant-intervenors have advanced one additional argument against class certification. They argue that, because plaintiffs seek either injunctive relief or relief that is (allegedly) beyond the Court's authority to order, class certification is unnecessary and should be denied. The Court cannot agree with this line of reasoning.

 Defendants and defendant-intervenors have cited, and the Court is aware of, many cases (although none from the Court of Appeals for this Circuit) holding that class certification may be denied if "unnecessary." See, e.g., Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), cert. denied, 417 U.S. 936, 41 L. Ed. 2d 240, 94 S. Ct. 2652 (1974); Gray v. International Brotherhood of Electrical Workers, 73 F.R.D. 638, 640-41 & n.5-7 (D.D.C. 1977). These cases are far from dispositive, since, "like Newton's Law of Thermodynamics, for every class denial on the basis of lack of need, one is able to find a decision, or several decisions, often in the same circuit, where other courts have certified Rule 23(b)(2) classes under virtually the same circumstances." 1 Newberg on Class Actions § 4.19; see also Ridgeway v. International Brotherhood of Electrical Workers, 74 F.R.D. 597, 601 (N.D. Ill. 1977) (necessity requirement a "minority approach").

 Indeed, the Court is confident that certification under Rule 23(b)(2) is proper regardless of need or the lack thereof. Rule 23(b)(2) specifically makes the class suit device available when only injunctive relief is sought. Were class certification inappropriate if "unnecessary," it would be inappropriate whenever only injunctive relief is sought, as the proposed relief would apply to all persons, whether class members or not. Thus, the idea that a class may be certified only if "necessary" flies in the face of the Federal Rules. See Note, The "Need Requirement": A Barrier to Class Actions Under Rule 23(b)(2), 67 Geo. L. J. 1211 (1979).

 Moreover, it is not clear that the necessity argument favors defendants and defendant-intervenors. Plaintiffs have asked, if the Court upholds the constitutionality of the White Earth Act, that the Court order the federal defendants to perform their alleged trust obligations to plaintiffs before certain of the Act's provisions take effect. As this relief would apply only to trust obligations owed plaintiffs, the absentees could not benefit from the order unless the class were certified. Hence, certification would be "necessary" for the absent members of the plaintiff class to benefit from the alternative relief sought.

 In sum, plaintiffs satisfy the criteria for class certification. The Court will therefore grant the motion to certify a plaintiff class consisting of all members of the White Earth Band who were adversely affected by the White Earth Land Settlement Act of 1985.

 Plaintiffs' Constitutional Challenges to the White Earth Act

 Plaintiffs have raised several challenges to the constitutionality of the White Earth Act. Specifically, plaintiffs claim that the Act violates their due process rights by failing to afford them an adequate opportunity to bring a land claims suit and by forcing them to elect between bringing a land claims suit and seeking a remedy under the Act. They also claim that members of the plaintiff class have received inadequate notice of their right to bring land claim suits, which plaintiffs maintain violates their due process rights and the government's trusteeship obligations. Plaintiffs further argue that the White Earth Act effects a taking of property without just compensation, in violation of the Fifth Amendment, and they maintain that the Tucker Act remedy provided by the statute does not remedy this constitutional infirmity.

 The Court will address each of plaintiffs' arguments in turn. As an initial proposition, however, the Court must note the heavy burden plaintiffs face in their challenge to the constitutionality of a federal statute. From the legislative history, it is clear that Congress was quite concerned with the constitutionality of the White Earth Act and passed the legislation only after satisfying itself that all portions of the Act were constitutional. See, e.g., Cong. Rec. S17589 (daily ed. Dec. 13, 1985); Cong. Rec. S17490 (daily ed. Dec. 12, 1985). In such a situation, deference to the Congressional enactment is particularly appropriate:

The Congress is a coequal branch of government whose Members take the same oath [as members of the judiciary] to uphold the Constitution of the United States. As Justice Frankfurter noted in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164 [95 L. Ed. 817, 71 S. Ct. 624] (1951), we must have 'due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.' The customary deference ...

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