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(Cite as: 2004 WL 1402696 (D.Minn.))

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United States District Court,

D. Minnesota.

Stanley F. CERMAK, Sr., and Raymond Cermak, Sr., acting individually and under

a power of attorney for Stanley F. Cermak, Sr ., Plaintiffs,

v.

Gale NORTON, Secretary of the United States Department of the Interior, and her

Agents, Assigns and Successors in office, and the United States of America,

through its Department of the Interior and the Bureau of Indian Affairs,

Defendants.

No. CIV.98-1248DSDSRN.

June 22, 2004.

Lawrence H. Crosby, Esq., Jay D. Olson, Esq. and Crosby and Associates, St. Paul, counsel for plaintiffs.

D. Gerald Wilhelm, Assistant U.S. Attorney, Minneapolis, counsel for defendants.

ORDER

DOTY, J.

*1 This matter is before the court upon defendants' motion to dismiss, or in the alternative, for summary judgment. Also before the court is plaintiff's cross-motion for summary judgment. For the following reasons, defendants' motion for summary judgment is granted and plaintiff's motion is denied.

BACKGROUND

The tortuous history of this case began in 1944, when the U.S. Department of the Interior issued Indian Land Certificates 64 and 65 to John Cermak, an Indian. Each certificate represented twenty-five acres of land in Scott County, Minnesota. The certificates indicate that "the said John Cermak and his heirs are entitled to immediate possession of said land, which is to be held in trust, by the Secretary of the Interior, for the exclusive use and benefit of the said Indian, so long as said allottee or his heirs occupy and use said land." (Pls.' Exs. Supp. Pls.' Mot. Summ. J. Ex. 41.)

In 1980, Congress passed Pub.L. No. 96-559, placing all "right, title, and interest" in the lands represented by the certificates in trust for the benefit of the Shakopee Mdewankanton Sioux Community of Minnesota (the "Community"). Pub.L. No. 96-559, 94 Stat. 3262. Section 3 of the Act states that "[n]othing in this Act shall (1) alter, or require the alteration, of any rights under any contract, lease, or assignment entered into or issued prior to enactment of this Act, or (2) restrict the authorities of the Secretary of the Interior under or with respect to any such contract, lease, or assignment." Id. at § 3.

John Cermak died in 1989. In his will, he devised to his son, Edward Cermak, "the interest that I may have in the real property granted to me by Indian Land Certificates number 64 and number 65." As executor of the will, Edward Cermak requested that the Bureau of Indian Affairs ("BIA") begin probate proceedings relative to the testamentary conveyance. (Defs.' Exhibits Supp. Defs.' Mot. Dismiss at Ex. 9 ("Cermak AR"), § VIV[sic] [FN1], Felix Letter of Jun. 19, 1989.) The BIA refused, however, claiming that it lacked probate jurisdiction because the land assignments were held in trust for the Community, rather than for John Cermak and his heirs. (Cermak AR § VIII.) The agency refused on the basis of its longstanding interpretation of the 1980 Act. ( Id. at 1-2.) The following year, the BIA cancelled the certificates at the request of the Community. (Cermak AR at §§ V & VI.)

FN1. The Table of Contents to Defendants' Exhibits shows this document at Ex. 9, § IX. The tabbed exhibit submitted to the court is incorrectly marked Ex. 9, § VIV.

Edward Cermak died in 1992. The conservator for the descendants of Edward Cermak sought possession of the land formerly covered by the certificates. The BIA again refused, reiterating its view that the certificates had conveyed only a life interest to John Cermak. (Cermak AR § IV.) That decision was appealed to the Indian Board of Interior Appeals ("IBIA") by certain of John Cermaks' descendants. See Gitchel v. Minneapolis Area Director, 28 IBIA 46 (1995) (appended at Cermak AR § III). However, the plaintiffs in the present action did not participate in the Gitchel action.

*2 In 1996, plaintiff Raymond Cermak, Sr., (hereafter Raymond Cermak) son of Edward Cermak, requested that the area director of the BIA reissue the certificates and grant possession to him and other members of the Cermak family. (Cermak AR § III, Raymond Cermak Letter of Jun. 27, 1996.) Larry Morrin, the Acting Area Director ("AAD") denied the request in a letter dated October 2, 1996. (Cermak AR, appended to TOC.) Raymond Cermak appealed the AAD's decision to the IBIA. See Cermak v. Acting Mpls. Area Dir. BIA, 32 IBIA 77, 78 (1998) (appended to Defs.' Exs. Supp. Defs.' Mot. Dismiss, Ex. 10). [FN2] The IBIA dismissed the action, finding that Raymond Cermak lacked standing to bring the appeal. See id. at 78. The IBIA further found that the ultimate issue had already been decided in the Gitchel action, which held that John Cermak held only a life interest in the lands, which terminated upon his death. See id. at 78 (citing Gitchel, 28 IBIA at 47.) The IBIA held that the Gitchel decision was res judicata as to Raymond Cermak's claims. See id. at 78-80. For those reasons, the IBIA dismissed the appeal.

FN2. The IBIA noted that Raymond Cermak's reply brief claimed to be "on behalf of Raymond Cermak, Sr. and Stanley Cermak." See Cermak, 32 IBIA 77, n. 1. The IBIA determined that Stanley Cermak was not properly before the agency because he had not been identified in the earlier request to the AAD or in the initial appeal. See id. at 77, n. 1.

Plaintiffs initiated the present litigation in 1998. Their complaint alleged a deprivation or taking of an interest in land without just compensation and breach of trust. (Compl. ¶¶ 1, 20 & 23.) Plaintiffs sought reconveyance of the land or damages equal to its value. ( Id. at 21, 27.) This court found that it lacked jurisdiction over the action, because equitable relief is not available in takings cases and claims for compensation in excess of $10,000 fall within the exclusive jurisdiction of the U.S. Court of Federal Claims. [FN3] (Order of Jul. 12, 1999 at 3-4.) Rather than dismissing the lawsuit for lack of subject matter jurisdiction, the court transferred the action to the Court of Federal Claims. ( Id. at 5.)

FN3. The court also held that 28 U.S.C. § 1353 was not a basis for jurisdiction, because the certificates were not allotments within the meaning of that statute. ( Id. at 5.)

Plaintiffs appealed the court's transfer order. The Court of Appeals for the Eighth Circuit transferred plaintiffs' appeal to the Court of Appeals for the Federal Circuit. See Cermak v. Babbitt, No. 99-3135 (8th Cir. Nov. 17, 1999). In February 2001, that court affirmed this court's order transferring the action to the Court of Federal Claims. See Cermak v. Babbitt, 234 F.3d 1356, 1363-64 (Fed.Cir.2000). On September 9, 2002, Judge Hodges of the Court of Federal Claims issued a decision dismissing plaintiffs' Fifth Amendment takings claim as filed outside the statute of limitations. (Mem. Op. of Sept. 9, 2002 at 4-5.) Judge Hodges dismissed plaintiffs' generalized takings claim on the basis of the findings of the BIA and IBIA that plaintiffs lacked any interest in the subject lands. ( Id. at 6.) Finally, he dismissed the breach of trust action because plaintiffs failed to cite authority to support their claim for money damages stemming from a breach of trust. ( Id . at 6.)

Despite dismissing all of plaintiffs' claims, Judge Hodges did not enter final judgment terminating the action. Noting that the Federal Circuit Court of Appeals had commented on the possible existence of a cause of action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., Judge Hodges instead transferred the case back to this court. ( Id. at 7.)

*3 Plaintiffs filed an amended complaint on January 13, 2003. Plaintiffs bring two causes of action in the amended complaint. They again allege that defendants have breached certain trust and contract obligations. (Am.Compl.¶¶ 23-27.) Plaintiffs pray for "equitable redress in this Court so that [they] receive that land at issue or an equitable remedy equal to the value of the two Indian Land Assignments...." ( Id. ¶ 28.) In the alternative, plaintiffs seek a declaration that defendants have acted arbitrarily, capriciously and contrary to law, and an order requiring defendants to convey the subject lands to them. (