[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index][Subject Index][Author Index]

Sue stuff

Since it seems many of you want to see this, the following is the text
of the decision which upheld the ruling that the sale of Sue to the
BHI was illegal.  I received it as a MIME-encoded Word Perfect file.
Since all you need is the text, I've saved it as text only.  I hope
it's comprehensible -- I "massaged" it a little to put it into this
form.  Where there were page breaks in the original, I inserted the
text: "----- page break here ---- MR ---" since the page breaks won't
transmit through e-mail.  Seeing those page breaks should at least let
you know not to read the headers at the beginning of each page.



P.S. Thank Larry Dunn for obtaining the document for us -- the bit
before page 1 has some meaning as to how it was transmitted to him;
that's not part of the case.

----- page break here ---- MR ---

PRINT DOC REQUESTED: DECEMBER 6, 1996                      100203

         NEW YORK NEW YORK 10005-1401

----- page break here ---- MR ---
                                                                      PAGE    1
          DATE: DECEMBER 6, 1996

        CLIENT: 02012-02603
      CITATION:  12 F.3d 737

----- page break here ---- MR ---
                                                                      PAGE    2
                      12 F.3d 737 printed in FULL format.

           Black Hills Institute of Geological Research; Black Hills
            Museum of Natural History Foundation, Inc., a non-profit
            corporation, Plaintiffs, Joseph M. Butler, Appellant, v.
             South Dakota School of Mines and Technology, Appellee,
          United States Department of Justice, Defendant. Black Hills
            Institute of Geological Research; Black Hills Museum of
          Natural History Foundation, Inc., a non-profit corporation,
              Appellants, v. United States Department of Justice,

                            No. 93-1600, No. 93-1602


          12 F.3d 737; 1993 U.S. App. LEXIS 32576; 28 Fed. R. Serv. 3d
                                (Callaghan) 232

                        October 11, 1993, Submitted    
                            December 15, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing and Rehearing En Banc Denied
February 2, 1994 (93-1602), Reported at: 1994 U.S. App. LEXIS 1655.

PRIOR HISTORY: Appeals from the United States District Court for the
District of South Dakota. District No. CIV 92-5070. Honorable Richard
Battey, District Judge.

COUNSEL: Counsel who presented argument on behalf of the appellant
Butler in case No. 93-1600 was Joseph Butler of Rapid City, South
Dakota. Appearing on the brief was Mark F. Marshall of Rapid City,
South Dakota.
Counsel who presented argument on behalf of the appellant Black Hills
Institute in case No. 93-1602 were Patrick Duffy of Rapid City, South
Dakota and Mark F. Marshall of Rapid City, South Dakota.
Counsel who presented argument on behalf of the appellee School of
Mines in case No. 93-1600 was Gene N. LeBrun of Rapid City, South
Dakota. Appearing on the brief were Edward J. Shawaker and David
C. Shilton of Washington, D.C.
Counsel who presented argument on behalf of the appellee United States
in case No. 93-1602 was Edward Shawaker of Washington, D.C. Appearing
on the brief were Ted L. McBride, Robert A. Mandel, Myles E. Flint,
and David C. Shilton.

JUDGES: Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.


[*739]   MAGILL, Circuit Judge.

   Black Hills Institute of Geological Research and Black Hills Museum
of Natural History Foundation (collectively, "Black Hills") appeal the
district court's n1 judgment in favor of the United States. The
district court found that the United States holds title to a valuable
Tyrannosaurus rex skeleton ("the

 ----- page break here ---- MR ---
                                                                      PAGE    3
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

fossil" or "Sue") in trust for Maurice Williams ("Williams"), an
individual Indian who is the beneficial owner of trust land on which
Black Hills discovered the fossil. Joseph M. Butler appeals separately
from the district court's order imposing Rule 11 sanctions on Butler
for naming an improper party as a defendant. We affirm the district
court's judgment that the United States holds trust title to the
fossil and reverse its Rule 11 order.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n1 The Honorable Richard H. Battey, United States District Judge
for the District of South Dakota.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

   I. BACKGROUND  [**2]  

   This case is before us for the third time. The factual background
is uncomplicated. Black Hills collects and restores fossils for
display in museums. In August 1990, Black Hills was excavating fossils
in western South Dakota. Sue Hendrickson, a researcher working on the
project, discovered Sue on Williams' ranch while on break.  Since
1969, the United States has held this ranch land in trust for the sole
use and benefit of Williams, an Indian. Two days after the discovery,
Black Hills scientists began excavating Sue, the most complete and
valuable Tyrannosaurus rex skeleton known to man, from Williams'
land. At some point during the excavation, Black Hills purported to
purchase from Williams the right to excavate Sue for $ 5000. After
excavation, Black Hills moved the ten tons of bones to Hill City,
South Dakota, where scientists began the laborious process of
restoring the fossil.

   In May 1992, however, federal officers seized Sue and moved her to
the South Dakota School of Mines and Technology ("School of
Mines"). The United States attorney for South Dakota ordered the
seizure on the ground that Black Hills' removal of Sue from Williams'
land violated federal criminal statutes relating [**3] to federal
lands. Black Hills then brought suit in district court to quiet title
to Sue. In conjunction with this action, it sought a preliminary
injunction for possession of the fossil pending the outcome [*740] of
the suit. After the district court denied Black Hills a preliminary
injunction, Black Hills moved under Eighth Circuit Rule 8A to this
court for an order granting it custody of Sue pending appeal of the
injunction denial.

   In Black Hills Institute of Geological Research v. United States
Department of Justice, 967 F.2d 1237, 1241 (8th Cir. 1992) (Black
Hills I), we found that the district court had anomalous jurisdiction
over the temporary custody issue and remanded for a determination of
the proper temporary custodian. The district court concluded that Sue
should remain at the School of Mines pending disposition of the case
on the merits. In Black Hills Institute of Geological Research
v. United States Department of Justice, 978 F.2d 1043, 1045 (8th
Cir. 1992) (Black Hills II), we affirmed the district court's custody
order, dismissed with prejudice Black Hills' appeal of the preliminary
injunction denial, and [**4] remanded the case for proceedings on the
merits. Meanwhile, Black Hills amended its complaint by abandoning the
quiet title theory of its case and instead seeking only an order
requiring the United States to return Sue to it.

 ----- page break here ---- MR ---
                                                                      PAGE    4
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

   On remand, the district court found that it still had to determine
ownership of Sue despite Black Hills' amended complaint because "[a]
permanent possessory right to the fossil is subsumed within the
context of ownership." D. Ct. Mem. Op. at 6 (Feb. 3, 1993). It then
concluded that it had federal question jurisdiction under 28 U.S.C. @
1331 because the case involved the application of federal statutes
relating to Indian trust lands. Reaching the merits, the district
court found that Sue was an interest in land under the trust land
statutes. Because Williams failed to receive the Secretary of the
Interior's ("the Secretary") approval for his attempted sale of Sue to
Black Hills, the court reasoned, the transaction was void and the
United States retained title to Sue in trust for Williams. Black Hills
now appeals.


   A. Subject Matter Jurisdiction

   The first issue we must address is the district court's basis [**5]
for subject matter jurisdiction over this case. We find that the
district court had general federal question jurisdiction under 28
U.S.C. @ 1331. Black Hills' complaint alleged facts sufficient to
bring the case within 5 U.S.C. @ 702's broad waiver of sovereign
immunity. Section 702 waives the federal government's sovereign
immunity in cases challenging agency action--here, the Department of
Justice's seizure of Sue--and seeking relief other than money
damages. n2 See 5 U.S.C. @ 702; Specter v. Garrett, 995 F.2d 404, 410
(3d Cir.) (holding that @ 702's waiver of sovereign immunity is not
limited to cases brought under the Administrative Procedure Act),
cert. granted, 114 S. Ct. 342 (1993); Presbyterian Church v. United
States, 870 F.2d 518, 525 (9th Cir. 1989) (holding that the term
"agency action" "was clearly intended to cover the full spectrum of
agency conduct"). District courts have jurisdiction under @ 1331 to
hear cases falling within @ 702's consent to suit. See Califano
v. Sanders, 430 U.S. 99, 105, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977)
[**6] (holding that @ 1331 confers jurisdiction on federal courts to
review agency action "subject only to preclusion-of-review statutes
created or retained by Congress").

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n2 Section 702 provides that its waiver of sovereign immunity does
not apply "if any other statute that grants consent to suit expressly
or impliedly forbids the relief which is sought." 5 U.S.C. @
702. Under 28 U.S.C. @ 2409a(a), Congress waived the government's
sovereign immunity in suits seeking to quiet title to real
property. Section 2409a(a), however, "does not apply to trust or
restricted Indian lands." Id. Thus, @ 2409a retains sovereign immunity
for suits seeking to quiet title to Indian trust lands. Section
2409a(a) does not "expressly or impliedly forbid[] the relief which is
sought" here because Black Hills seeks the return of what is now
personal property, not a determination of title to Indian trust land.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

   B. Ownership of the Fossil

   We now reach the merits of the [**7] case. We must first decide
precisely what issue is before us. Initially, Black Hills sued the
government to quiet title to Sue. Black Hills' second amended
complaint abandoned the quiet title

 ----- page break here ---- MR ---
                                                                      PAGE    5
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

action and sought an order requiring the government to return the
fossil. Black Hills argues that the district court erred because it
determined ownership, an issue Black Hills claims that it did not
raise in the second amended complaint. According to Black Hills, the
district court "only [*741] had jurisdiction to determine whether
[Black Hills] or the Department of Justice was entitled to possession
of the fossil." Appellant's Br. at 41.

   In the second amended complaint, however, Black Hills stated that
it "paid Williams $ 5000 in exchange for Sue. [Black Hills] scientists
wrote a check to Williams on August 27, 1990, which he accepted and
cashed in full payment for Sue." 2d Amended Compl., P II, at 1. Thus,
Black Hills alleged that it owned the fossil outright, not that it
leased it or had some possessory interest that did not amount to full
ownership. In light of this allegation, we can only construe its
request that the district court order the "United States to return the
fossil to [Black Hills]" [**8] as a claim for permanent possession of
Sue. Id. at 5. Determining whether Black Hills is entitled to
permanent possession necessarily requires determining which party
actually owns the fossil. Thus, we must determine whether the
transaction between Williams and Black Hills transferred title of Sue
to Black Hills.

   The ownership issue depends on our construction of several statutes
governing Indian trust land. Sue Hendrickson discovered the fossil on
land to which the United States holds legal title in trust for
Williams, an individual Indian. Under the trust instrument, the United
States will hold the land "in trust for the sole use and benefit of"
Williams until the trust relationship expires on September 23,
1994. The United States acquired the land pursuant to the Indian
Reorganization Act of 1934 ("the IRA"), see 25 U.S.C. @ 465, and
issued the trust patent to Williams pursuant to a provision of the
General Allotment Act of 1887 ("the GAA"), see 25 U.S.C. @ 348. n3
Until the trust expires in 1994, Williams is a beneficial owner of the
land, retaining certain judicially-recognized rights but lacking [**9]
the absolute right to dispose of the land as he pleases.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

n3 The IRA ended the federal government's policy of allotting tribal
land in severalty to individual Indians. See 25 U.S.C. @ 461. Under 25
U.S.C. @ 335, however, provisions of the GAA continue to apply "to all
lands heretofore purchased or which may be purchased by authority of
Congress for the use or benefit of any individual Indian or band or
tribe of Indians," "unless otherwise specifically provided." The
relevant GAA provision that applies here is 25 U.S.C. @ 348, which
governs the trust relationship between the government and the
individual Indian.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

   Other provisions of the IRA reflect the limits of Williams'
interest in his trust land. Section four of the IRA, subject to
several exceptions not relevant here, prohibits the "sale, devise,
gift, exchange, or other transfer of restricted" Indian trust
lands. Id. @ 464 (codifying @ 4 of the IRA).  [**10] On application of
Indian owners, however, the Secretary has discretion "to remove
restrictions against alienation, and to approve conveyances, with
respect to lands or interests in lands held by individual Indians
under [the IRA]." Id. @ 483; see also 25 C.F.R. @ 152.22 (1993)
(providing that "trust or restricted
----- page break here ---- MR ---
PAGE    6
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

lands . . . , or any interest therein, may not be conveyed without the
approval of the Secretary"); id. @ 152.23 (describing the application
and approval process). These statutes and regulations establish a
scheme by which beneficial owners of Indian land such as Williams may
alienate all or part of their interest before their trust instruments
expire. Outside of the permitted transactions not applicable here, the
only way such owners may alienate an interest in their trust land is
by securing the prior approval of the Secretary. An attempted sale of
an interest in Indian trust land in violation of this requirement is
void and does not transfer title. See Mottaz v. United States, 753
F.2d 71, 74 (8th Cir. 1985), reversed on other grounds, 476 U.S. 834,
90 L. Ed. 2d 841, 106 S. Ct. 2224 (1986).

   Here, Black Hills claims that it purchased [**11] the right to
excavate Sue from Williams for $ 5000. Williams did not apply to the
Secretary for prior approval of this transaction nor did the Secretary
ever approve it. All parties agree that the fossil is now personal
property because it has been severed from the land. In Starr
v. Campbell, 208 U.S. 527, 534, 52 L. Ed. 602, 28 S. Ct. 365 (1908),
however, the Supreme Court held that timber from Indian trust land
that the beneficial owner sold was subject to the trust patent's
restraint on alienation even though the timber became personal
property after the purchaser severed it from the land. n4

   [*742] Thus, the relevant inquiry for purposes of assessing the
validity of the transaction is whether the fossil was personal
property or land before Black Hills excavated it. If it was land
within the meaning of the relevant statutes and regulations, the
transaction between Williams and Black Hills is void and the United
States holds Sue in trust for Williams because the trust continued in
Sue when she became personalty. Cf. United States v. Brown, 8 F.2d
564, 566 (8th Cir. 1925) (explaining in the context of Indian trust
land that "no change of form of property [**12] divests it of a
trust[;] [a] substitute takes the nature of the original and stands
charged with the same trust"), cert. denied, 270 U.S. 644, 70
L. Ed. 777, 46 S. Ct. 210 (1926).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - 

n4 The Supreme Court has held that a beneficial owner of Indian trust
land could sell timber from his land without violating the restraint
on alienation because "the cutting was incidental to the preparation
of [the] land for agricultural uses." Felix S. Cohen, Handbook of
Federal Indian Law, at 539 n.94 (1982 ed.) (citing United States
v. Paine Lumber, 206 U.S. 467, 473-74, 51 L. Ed. 1139, 27 S. Ct. 697
(1907)). The Court distinguished Paine, however, in Starr. In Starr,
the Court found the timber subject to the restraint on alienation
because the timber constituted 15/16 of the value of the land and the
land was "timber land" unsuitable for farming. 208 U.S. at
534. Holding otherwise, the Court reasoned, would reduce the restraint
on alienation to "small consequence." Id. Thus, Paine does not apply
here because Sue was a valuable part of the land and nothing in the
record suggests that she was excavated to clear the land for farming
or other similar purposes.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[**13] Whether the fossil was "land" within the meaning of both 25
U.S.C. @ 464 and 25 U.S.C. @ 483 is a matter of federal law. Because
Congress has provided no

 ----- page break here ---- MR ---
PAGE    7
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

definition of "land" applicable to these statutes, however, we may
refer to state property law for guidance. See United States v. Certain
Real Property at 2525 Leroy Lane, 910 F.2d 343, 349 (6th Cir. 1990)
(discussing federal forfeiture statutes), cert. denied, 111
S. Ct. 1414 (1991); see also Wilson v. Omaha Indian Tribe, 442
U.S. 653, 676, 61 L. Ed. 2d 153, 99 S. Ct. 2529 (1979) (finding that
state property law controlled title dispute between Indian and
non-Indian claimants to land even though issue was ultimately one of
federal law). South Dakota law denominates two classes of property:
"real or immovable" property and "personal or movable"
property. S.D. Codified Laws Ann. @ 43-1-2. "Real or immovable
property consists of: (1) Land; (2) That which is affixed to land; (3)
That which is incidental or appurtenant to land; (4) That which is
immovable by law. Every kind of property that is not real is [**14]
personal." Id. @ 43-1-3. "Land," in turn, "is the solid material of
the earth, whatever may be the ingredients of which it is composed,
whether soil, rock, or other substance." Id. @ 43-1-4.

   We hold that the fossil was "land" within the meaning of @ 464 and
@ 483. Sue Hendrickson found the fossil embedded in the land. Under
South Dakota law, the fossil was an "ingredient" comprising part of
the "solid material of the earth." It was a component part of
Williams' land, just like the soil, the rocks, and whatever other
naturally-occurring materials make up the earth of the ranch. Black
Hills makes several arguments to the contrary, none of which we find
persuasive. That the fossil once was a dinosaur which walked on the
surface of the earth and that part of the fossil was protruding from
the ground when Hendrickson discovered it are irrelevant. The salient
point is that the fossil had for millions of years been an
"ingredient" of the earth that the United States holds in trust for
Williams. The case very well might be different had someone found the
fossil elsewhere and buried it in Williams' land or somehow
inadvertently left it there. Here, however, a Tyrannosaurus rex died
[**15] some 65 million years ago on what is now Indian trust land and
its fossilized remains gradually became incorporated into that
land. Although it is movable, personal property now, at the time
Hendrickson discovered the fossil it was part of Williams' land and
thus is subject to @ 464 and @ 483. As in Starr, 208 U.S. at 534,
where an Indian sold timber constituting 15/16 of the value of the
land, we would render the statutory restraint on alienation here
essentially meaningless if Williams could transfer the right to
excavate a priceless fossil derived from otherwise nondescript land
without the Secretary's permission. Because he did not seek the
Secretary's approval, we hold that Williams' attempted sale to Black
Hills is void n5 and that the United States holds Sue [*743] in trust
for Williams pursuant to the trust patent.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n5 There is an ongoing dispute between Williams and Black Hills
regarding this transaction. We intimate no opinion as to the remedies
Black Hills may have under state law as to its $ 5000 payment to
Williams. Moreover, because Black Hills does not argue that it
acquired anything less than title to Sue, we need not decide whether
Williams could have leased Sue or transferred other rights to Black

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

 ----- page break here ---- MR ---
PAGE    8
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

[**16] Black Hills argues, however, that the trust relationship
between Williams and the United States does not govern the fossil. It
claims that the government's trust duties over Williams' land are
limited to safeguarding the land base of the reservation through
restricting alienation of the land and preserving the land's
tax-exempt status. The government's seizure of the fossil, it asserts,
exceeded the scope of the trust because no statutes regulate the
management of fossils on Indian trust land and personal property such
as the fossil is unrelated to the land base. Black Hills cites United
States v. Mitchell, 445 U.S. 535, 63 L. Ed. 2d 607, 100 S. Ct. 1349
(1980) (Mitchell I), and United States v. Mitchell, 463 U.S. 206, 77
L. Ed. 2d 580, 103 S. Ct. 2961 (1983) (Mitchell II), for support.
   In Mitchell I, individual Indians sued the United States for
mismanaging timber resources on trust land of which they were the
beneficial owners. The Supreme Court found that the GAA, the statute
under which the Indians had received their beneficial interests in the
land, did not "impose any duty upon the Government to manage timber
resources." 445 U.S. at 542. Rather, [**17] the GAA created only a
"limited trust relationship" that sought "to prevent alienation of the
land and to ensure that allottees would be immune from state
taxation." Id. at 542, 544. In Mitchell II, however, the Court found
that, even though the GAA was not a basis for liability, the United
States could be liable for damages for mismanaging the timber because
an elaborate statutory and regulatory scheme imposed fiduciary duties
on the government relating to the management of timber resources on
Indian trust land. 463 U.S. at 226. Mitchell I and Mitchell II, Black
Hills claims, together compel the conclusion that the trust
relationship between the government and Williams does not encompass
the attempted sale of Sue because the absence of a statutory scheme
governing fossils means that the government has only limited trust
duties where fossils are involved. The limited duty of preventing
alienation of the land, it argues, does not include preventing sales
of fossils.
   We reject the Black Hills' argument that the Mitchell cases suggest
that the government exceeded the scope of its trust relationship with
Williams. [**18] First, the fiduciary duties of the government to
beneficial owners of trust land, the issue that the Mitchell cases
addressed, and the ability of beneficial owners to alienate trust
land, the issue here, are different questions. Thus, that there are no
statutes or regulations specifically governing the sale of fossils is
not important. The absence of such regulation only suggests that the
government could not be liable in damages to Williams for breaching
alleged fiduciary duties relating to the management of fossils on his
land. It does not, however, affect the validity of Williams' attempted
sale of the fossil to a third party because there are statutes and
regulations governing the alienation of interests in Indian trust
land, such as fossils. Moreover, the Court's holding in Mitchell I
that the GAA imposed only limited trust duties on the government does
not help Black Hills. Indeed, Congress enacted the GAA to prevent
alienation of Indian trust land. 445 U.S. at 542. Because the fossil
was part of Williams' trust land and he failed to secure approval for
his attempted sale of the right to excavate it, we hold that the
United States' seizure [**19] of the fossil was a proper exercise of
its trust status under the GAA. n6 Finally, nothing in either Mitchell
case suggests that Congress intended that the goal of preventing
alienation of the land not apply to interests in such land, like
fossils, that become personal property when severed from the land.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -

 ----- page break here ---- MR ---
                                                                      PAGE    9
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

    n6 The government seized the fossil pursuant to a search warrant
as part of a criminal investigation. Black Hills argues that the
government cited violations of the Antiquities Act as one basis for
the seizure knowing that the Act did not apply. We need not evaluate
the government's articulated rationale for the seizure, however,
because we conclude that the seizure was within the scope of the trust
relationship with Williams.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

   Black Hills next argues in effect that holding Williams' sale
invalid is bad policy. It asserts that Williams was competent to
[*744] sell the fossil even if it was an interest in land and that
finding the sale invalid would undermine the current legislative trend
favoring tribal self-determination. [**20] These points are matters of
policy for Congress to consider, not federal courts. The current
statutory scheme reflects Congress's desire to protect beneficial
owners of Indian trust land like Williams regarding disposition of
interests in such land. See 25 U.S.C. @@ 348, 464, 483; see also
Tooahnippah v. Hickel, 397 U.S. 598, 609, 25 L. Ed. 2d 600, 90
S. Ct. 1316 (1970) (explaining that the GAA's legislative history
"reflects the concern of the Government to protect Indians from
improvident acts or exploitation by others"). Congress may very well
determine that the historic practice of shielding beneficial owners
from their own improvident decisions, unscrupulous offerors, and
whatever other evils the enacting Congresses contemplated decades ago
is no longer wise. n7 Until it does, however, we are bound to apply
the statutes and regulations forbidding such owners from alienating
trust land without the Secretary's approval.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n7 Congress has already eliminated many of the protections earlier
statutes provided for Indians. Section 483 itself, for instance,
allows Indians to apply to the Secretary for removal of alienation
restrictions. Thus, the statutes reflect the trend toward Indian
self-determination. Although it has diminished the practice of
protecting Indians, however, Congress has not completely eliminated
it. Williams was free to request that the government end the trust or
that he be allowed to alienate his land, but he did not. Because he
did not, the vestiges of protection that remain still apply.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[**21] Black Hills and amici curiae the Libertarian Party of South
Dakota and the National Libertarian Party make several other brief
arguments. First, we reject amici's suggestion that we remand the case
to the Secretary to consider nunc pro tunc approval of the sale. The
statute provides that "application of the Indian owners" is a
prerequisite to the Secretary's approval of conveyances of trust
land. 25 U.S.C. @ 483. The Secretary may not consider the transaction
at issue here because Williams has never submitted an
application. Moreover, we reject Black Hills' argument that the United
States lacks standing to claim trust ownership of Sue because neither
the Secretary nor Williams are parties. Williams is not a necessary
party, see Heckman v. United States, 224 U.S. 413, 444, 56 L. Ed. 820,
32 S. Ct. 424 (1912), and the United States may claim

 ----- page break here ---- MR ---
                                                                      PAGE   10
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

trust title without the Secretary because the trust patent names it as
   We also reject Black Hills' claim that the district court's
decision violated its due process rights because the government seized
the fossil without a pre-deprivation hearing and because Black Hills
added value to Sue [**22] that it will be unable to recoup. Because we
find that Black Hills has no interest in Sue, we reject its claim that
the lack of a pre-deprivation hearing violated its rights. Moreover,
although it is unfortunate that Black Hills spent a great deal of time
and resources adding value to a fossil it does not own, concluding
that Black Hills' transaction with Williams is void does not deprive
Black Hills of due process where it had no interest in the fossil and
it could have taken any number of steps to protect itself in the first
place. At the very least, for instance, that the fossil was embedded
in land located within the boundaries of the Cheyenne River Sioux
Indian Reservation should have alerted Black Hills to the possibility
that the federal government had some interest in Sue. Because it did
not, however, we hold that the United States holds Sue in trust for
Williams pursuant to the trust patent.
   C. Rule 11 Sanctions

   Counsel for Black Hills, Joseph Butler, challenges the district
court's order imposing sanctions under Fed. R. Civ. P. 11 n8 on him
for naming the School of Mines as a defendant in the first amended
complaint. The court awarded the School of Mines attorney's fees
[**23] because it found that the school was not a proper defendant to
Black Hills' quiet title action, n9 reasoning that the school had "no
conceivable basis to assert any rights [*745] to the fossil" and "was
nothing more than a mere depository of the fossil."
D. Ct. Mem. Op. and Order at 3-4 (Sept. 8, 1992).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

   n8 The amendments to Rule 11 that went into effect on December 1,
1993, do not affect our analysis.
   n9 As we noted above, Black Hills' second amended complaint sought
the return of Sue and abandoned the quiet title claim. At issue here
is the district court's decision to sanction Butler for naming the
School of Mines a defendant in the case when Black Hills was asking
the court to quiet title.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

   We review the district court's imposition of sanctions under Rule
11 for an abuse of discretion. Miller v. Bittner, 985 F.2d 935, 938
(8th Cir. 1993). The district court's task is to ascertain whether the
attorney met the objective reasonableness standard. Id. (citations
omitted). Improperly naming [**24] a party in a suit justifies Rule 11
sanctions when "joining the party [is] baseless or lacking in
plausibility." Community Elec. Serv. of Los Angeles v. National
Elec. Contractors Assoc., 869 F.2d 1235, 1245 (9th Cir.) (citing
Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987)),
cert. denied, 493 U.S. 891 (1989).

   We find that Butler's decision to name the School of Mines as a
defendant here was not baseless or lacking in plausibility. Initially,
Black Hills framed its case as a quiet title action. At the time Black
Hills named it a defendant

 ----- page break here ---- MR ---
                                                                      PAGE   11
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232

in the first amended complaint, the School of Mines was in possession
of Sue. The district court, citing 75 C.J.S. Quieting Title @ 54,
found that the School of Mines had no "material subsisting interest"
in Sue because it possessed her merely as an agent for the government
and thus was not a proper party. D. Ct. Mem. Op. and Order at 3. The
court's analysis of the merits of the School of Mines' status as a
proper party would have been the correct inquiry on a motion to
dismiss. It was not, however, the correct inquiry on a motion [**25]
for Rule 11 sanctions.  Rather, as Community Electric Service
suggests, the focus in the Rule 11 context should be on the
plausibility of including the School of Mines as a party at the
complaint stage. We think that the School of Mines' possession of Sue,
albeit as a "depository" for the government, gave Black Hills a
plausible argument that the School of Mines had a sufficient interest
in the property to be named as a defendant in a quiet title
action. Indeed, the district court itself noted that "in some
circumstances possession of the object in dispute may be enough to
justify suing the possessor in a quiet title action." Id. Case law on
this issue is sparse and we will not force Butler to bear the burden
of Rule 11 sanctions where it is unclear precisely in what
"circumstances" possession is enough to sue the possessor. Cf. Mareno
v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (reversing award of Rule
11 sanctions where plaintiff's claim, although ultimately
unsuccessful, involved "the complexities of New York long arm
jurisprudence"), cert. denied, 498 U.S. 1028, 112 L. Ed. 2d 673, 111
S. Ct. 681 (1991). Butler had a plausible claim that the School [**26]
of Mines' possession gave it the "material subsisting interest" in Sue
needed to render it a proper party in the case.

   Moreover, regardless of whether the School of Mines asserted an
ownership interest in Sue, the fact remains that it retained
possession of her. There is ample authority for the proposition that
the court in a quiet title action, in order to afford complete relief,
may order that a defendant relinquish possession of the subject
property to the plaintiff. See 74 C.J.S. Quieting Title @@ 96, 108
(1951). Thus, naming the School of Mines as a defendant here was not
baseless because the school clearly had an interest in
Sue--possession--that a quiet title action could affect; failure to
include the School of Mines might have required Black Hills to bring
an entirely different action to enforce its right to possession if the
court found that it had such a right. Once the School of Mines
represented in open court that it would abide by any order the
district court made and would not assert any separate interest in Sue,
counsel for Black Hills immediately assented to dismissal of the
school from the case. See Status Conference Tr. at 16. Thus, we hold
that the [**27] district court abused its discretion in imposing Rule
11 sanctions on Butler. Although naming the School of Mines as a
defendant in the first amended complaint ultimately proved to be
unnecessary, Butler acted reasonably under the existing facts and law.


   For the foregoing reasons, we affirm the judgment of the district
court that the United States holds Sue in trust for Williams pursuant
to the trust patent, and we reverse the district court's order
imposing Rule 11 sanctions on Joseph Butler.  [*746]

 ----- page break here ---- MR ---
PAGE   12
                12 F.3d 737, *; 1993 U.S. App. LEXIS 32576, **;           LEXSEE
                      28 Fed. R. Serv. 3d (Callaghan) 232


   Feb. 2, 1994.

   (No. 93-1602)

   The suggestion for rehearing en banc is denied.

   The petition for rehearing by the panel is also denied with the
following explanation. In its petition for rehearing, Black Hills
Institute of geological research (Black Hills) relies on United States
v. Good, U.S.  , 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993), for the
claim that it was entitled to an adversary hearing before the
Department of Justice seized the fossil "Sue" from it.  In Good, it
was undisputed that Good owned the real property that the [**28]
government had siezed without forst providing Good with an adversary
hearing. See id. at , , 114 S. Ct. at 496. This fact distinguishes
Good from the instant case, where the panel determined that Black
Hills did not own the property in question. See Black Hills Inst. of
geological research v. United States dep't of Justice, 12 F.3d 737,
742-43, (8th Cir. 1993).