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159 eighteen The Northern Cheyennes and the Hollowbreast Case while the northern cheyenne tribe no longer had to fear coal mining resulting from the discredited exploration permits, a new threat appeared with the 1974 Ninth Circuit Court of Appeals decision in Hollowbreast v. Northern Cheyenne Tribe.1 The case involved a strange combination of circumstances that could only happen in Indian country. The lands of the Northern Cheyenne reservation had remained in undivided tribal ownership until 1926, when Congress had allotted tribal lands to members in 160-acre parcels. But this Northern Cheyenne Allotment Act separated ownership of surface rights from the mineral rights belowground. The holders of the allotments, called allottees, were given only surface rights; the mineral rights were reserved for the tribe, but for only fifty years. After fifty years, or in 1976, the mineral rights would pass to the allottees. The years passed, and there was no coal mining on the reservation. But the tribe was fully aware of the potential for mining. They wanted control of any mining to remain with the tribe, instead of being divided among several thousand allottees, at least a third of whom lived off-reservation and so had less interest in land preservation. Since the coal underground would become the property of the allottees in 1976, the tribe asked Congress to amend the 1926 act to make the tribe owner of all subsurface rights in perpetuity. In 1969, Congress passed the amendment, but the Interior Department attorneys who wrote the legislation were uncertain of its 160 the northern cheyennes and the hollowbreast case constitutionality. If the 1926 act gave the allottees a vested ownership interest in the coal under their lands, then it was unconstitutional for Congress to take away that interest and give it to the tribe. The Interior lawyers came up with an unorthodox solution. Since no one could say with certainty whether the rights of the allottees under the 1926 law were vested and could not be taken from them, the 1969 amendment provided that the tribe would get perpetual ownership of the coal only if a court ruled that it was constitutional for Congress to give it to them. The amendment required that the tribe go to court and get a declaratory judgment on the constitutionality of the law. I doubt this had any precedent in American history, that is, Congress taking legislative action, but conditioning its effectiveness on whether a court would later declare they had the right to take the action. The Northern Cheyennes directed their local attorney to file suit, but also retained a Billings, Montana, law firm to represent them. The allottees also had attorneys: a private attorney, a federally funded Legal Services attorney, and Justice Department attorneys. This litigation had begun long before our firm was retained by the tribe and was going on at the same time we were working to set aside the permits. In the allottees’ case, called Hollowbreast v. Northern Cheyenne Tribe, the federal District Court ruled in favor of the tribe, but the allottees appealed to the Ninth Circuit. In 1974, the Ninth Circuit overturned the District Court and ruled that Congress could not constitutionally extend the period of the tribe’s ownership. The coal belonged to the individual allottees. The Hollowbreast decision was a serious threat. If it stood, it would substantially undermine the victory the tribe had achieved in its petition to the secretary of the Interior. The extent of the coal beneath the allotted lands amounted to about 40 percent of the coal on the reservation . Coal companies, promoters, and speculators began approaching the Cheyennes who had allotments with attractive offers to buy the mining rights. In order for mining to be feasible, large tracts had to be assembled, and so a meeting of the allottees was called to organize for a sale of rights on large parcels of land. A sufficient number were persuaded, and an organization calling itself the Rosebud Society was formed. The Rosebud Society could negotiate a sale of all the coal lying beneath allotted lands, which would wreak havoc on the reservation. It was at this point that the tribe turned to us for help. the northern cheyennes and the hollowbreast case 161 Coming into a case after a final decision has been made by a federal court of appeals is a bad time for any lawyer. What steps can you take? You can petition the court of appeals to grant a rehearing en banc, with the full...


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