
    Nos. 19, 189-A and 189-C.
    December 16, 1981
    Minnesota Chippewa Tribe, et al. v. the United States (Exception No. 41) Red Lake Band, et al. v. The United States (Exception No. 42) Red Lake Band, et al. v. The United States (Exception No. 29)
    
      Marvin J. Sonosky, attorney of record, for plaintiffs. Lloyd Benton Miller, Sonosky, Chambers & Sachse, and Edwards, Edwards & Bodin, of counsel.
    
      Glen R. Goodsell, with whom was Assistant Attorney General Carol E. Dinkins, for defendant.
    
      Before Friedman, Chief Judge, Bennett and Smith, Judges.
    
   Indian claims; withdrawal of exception. — On December 16, 1981 the court entered three substantially identical orders respecting each of the above-identified Exceptions. The orders have been consolidated for reporting purposes as follows:

This case comes before the court on defendant’s motion to dismiss plaintiffs’ Exception No. 41/42/29 on the grounds of res judicata and statute of limitations. As to the former, defendant asserts that this issue is foreclosed because it was determined by this court in previous litigation between the Minnesota Chippewas and the United States. Chippewa Indians of Minnesota v. United States, 80 Ct.Cl. 410 (1935), aff’d, 301 U.S. 358 (1937) (hereinafter cited as No. H-76); Chippewa Indians of Minnesota v. United States, 87 Ct.Cl. 1 (1938), aff’d, 305 U.S. 479 (1939) (hereinafter No. H-192); Chippewa Indians of Minnesota v. United States, 88 Ct.Cl. 1 (1938), aff’d, 307 U.S. 1 (1939) (hereinafter No. H-155); Chippewa Indians of Minnesota v. United States, 90 Ct.Cl. 140 (1940) (hereinafter No. H-163); Chippewa Indians of Minnesota v. United States, 91 U.S. 97 (1940) (hereinafter No. M-135) (hereinafter referred to collectively as the Nelson Act cases). As to the statute of limitations, defendant points to the ending of the limitations period in 1946, 25 U.S.C. § 70k, and the filing of the exception in 1930.

Plaintiffs’ Exception No. 41/42/29 demands compensation under the fifth amendment for the value of a flowage easement created by the United States pursuant to the Act of June 7, 1897, 30 Stat. 62, 67. Defendant says that this claim should have been raised in one of the Nelson Act cases, particularly No. H-192 which involved the creation of a national forest.

Answering, however, plaintiffs move to withdraw their exception, preferring to raise the claim in Docket No. 188. Defendant does not oppose plaintiffs’ motion to withdraw, and it is therefore unnecessary for us to pass on the res judicata and limitations issues presented by defendant’s motion.

it is therefore ordered that defendant’s motion to dismiss is denied, and plaintiffs’ motion to withdraw is granted, and Exception No. 41/42/29 is discontinued, with prejudice, in No. 19/189-A/189-C.

Plaintiffs’ motion for rehearing in No. 189-A was denied February 16,1982.  