Post by hermin1 on May 12, 2013 13:17:21 GMT -5
Curtis Kitto generously has asked me to post his notes of the may 6,2013 Appeals hearing re. Wolfchild Case:
Using excerpts from the “Wolfchild Cross Appellants Motion to take Judicial Notice of Department’s 2012 Notice of Decision,” dated January 30, 2013, this message will also include my transcribed handwritten notes and observation of yesterday’s proceedings.
Please read Mr. Kaardal’s Judicial Notice motion (Previously sent).
The United States Court of Appeals for the Federal Circuit Courtroom is located on the second floor of the Howard T. Markey National Courts Building, 717 Madison Place, N.W., Washington, D.C. I arrived and took a seat 3 rows back from the front. Ms. Liz Walker, the lawyer representing us appeared a little later.
Ours was not the first case heard. I do not know the particulars of the first case, I believe the first case was an appeal to reverse a judgment for the Veterans’ Affairs, in favor of a Veteran. The Vet’s lawyer argued that he had received information crucial to his case, too late. The Judges were not favorable to the lawyer.
Our case was heard by a 3 Judge panel consisting of: Chief Judge Randall R. Rader, Circuit Judge Jimmie V. Reyna, and Circuit Judge Richard G. Taranto, Judge Taranto is new to the bench.
Our case was called, the government lawyer Smelzer argued first. (Does the government specifically look for and hire lawyers with odd sounding names?) He began by saying the Clerk erred, this case fails to state a claim, and there was no “use restriction-use on the land.” He was interrupted by Judge Reyna, who asked a question concerning “distribution of the land.”
Smelzer replied in the negative and said that a footnote addressed the distribution of the land. Use restriction is not money-mandating. Regarding the Tucker Act (the appropriation Act) refers to all 3 acts to purchase items for the Mdewakanton, “…shall expend funds on land and livestock.” He stated further that the land was leased AFTER the original Indians passed on so the government leased the land for dollars. The Bureau of Indian Affairs managed the land. No, there was no money mandating act.
Judge Taranto said, “The Court of Federal Claims (CFC) awarded money out of the trust fund $674,000 to the plaintiffs.”
Smelzer replied, “There is no more trust funds.”
Judge Taranto said, “If Congress has land why is there no money?”
Smelzer had no answer for that. He continued, “The issue is about the lawful distribution of land. There is no money to pay future motions.” He said that this motion was filed untimely on the land issue. All the land was sold except for a small piece.”
Judge Taranto asked: “Is that where the casino is located?”
The answer was “no”. Smelzer then argued that the March 1863 Act superseded the February 16, 1863 Act.
Judge Taranto wanted some clarification.
(Page 2 – Narrative of the 5/6/2013 Hearing)
Smelzer said that the government may provide lands from the public lands. The March 1863 Act states that it “…Shall be lawful to place Indians on former reservation land.”
Judge Taranto said, “How can you say the second act supersedes the first act if there is no mention of a reservation in the first Act?”
Smelzer replied, “There is no paper to say we will give you the land.”
Judge Reyna interjected: “Did the Government stipulate to a money award?”
Smelzer replied, “Yes.”
Judge Reyna then asked, “What do you fear? The Government provided for the Loyal Indians. What has the Government done to pay these folk’s descendants?”
Smelzer answered, “The cost will dwarf the Judgment. The Government has been directed to make a list and report (progress to Judge Lettow). The 1886, 1888, and the supplemental 1890 Acts did not create a trust.”
Judge Reyna then stated, “You are not saying that the appropriations and obligations are paid?”
Smelzer replied: “You cannot argue…” After Smelzer finished his sentence:
Chief Judge Rader dismissed Smelzer and motioned for Eric to take the stand.
NOTE: I regret that I did not take good notes while Eric was talking. I was very interested and listened and watched, rather than listening and writing. The questions and answers went into much more detail than I have recorded here.
Eric stepped to the podium and began his argument. He was immediately interrupted by the Chief Judge, who kept challenging him with 3 questions, (1) Where is the mandating Act? (2) Where is our jurisdiction? and (3) Where is the Trust?
Eric calmly replied, “The 1980 Act did not repeal our rights. We were recognized prior to 1934.”
Chief Judge Rader: ‘We have already decided there is no Trust, no money mandating Act and no jurisdiction.”
Eric stood his ground. “You cannot transfer land…”
Chief Judge Rader, “You cannot tell me the statute where the money mandated is…”
Eris steadfastly reiterated: “We were here.”
Judge Taranto asked, “If you are not a Tribe, can you be recognized by Carcieri?”
Eric replied, “Yes.” He then discusses the effect of the Carcieri on this case and sums up we have only one Federally-recognized Tribe on June 18, 1934, and that was the Mdewakantons.
Chief Judge Rader thanked Eric and called for Gary Montana to the stand.
Montana immediately attacked Smelzer’s proposition that the February 16, 1863 Act, was superseded by the March 1863 Act. “That is not true, the statutes were enacted for “meritorious Indians,” are still good law. We want justice, even though there was an uprising, the Government violated the Statutes first. They did not appropriate money. 80 Acres is due us.”
Judge Taranto “How about the untimeliness?...It is time barred.”
Montana insisted “There is no accounting. Other courts have held that there is interest in the land.”
Chief Judge Rader thanked Gary and called Robin Zephier to the stand.
Robin discussed the Treaties of 1851 and 1853 and how the treaties were abrogated after the uprising in 1862. He said that it was no fault of the “friendlies,” but their treaty rights were abrogated too.
He declared: The 80 acres of land is the trust fund for the people under Section 9 of the Act of February 16, 1863. Although both sides breached the treaties, the Government continues to breach the treaties today. The Acts of 1886, 1888, and the supplemental 1890 are just “crumbs.”
Smelzer got the final say:
Smelzer replied: “you cannot argue neither act is money mandating.
Judge Taranto then stated: “The land purchase can be recognized as a Reservation
Curtis Kitto