Post by hermin1 on Jul 23, 2011 10:55:23 GMT -5
I THE UITED STATES COURT OF CLAIMS
__________________________________________
)
SHELDON PETERS WOLFCHILD, et al., )
)
)
vs. ) Case No.: 03 – 2684L
)
UNITED STATES, ) Hon. Charles F. Lettow
)
Defendant. )
__________________________________________)
PLAITIFF-ITERVEORS’ SUPPLEMETAL BRIEF I
OPPOSITIO TO THE UITED STATES’ BRIEF I SUPPORT OF
THE APPLICATIO OF 25 U.S.C. § 1401 et seq.
Comes Now Plaintiff-Intervenors, through the undersigned counsel,
and, pursuant to this Court’s Order (Doc. # 1083) dated June 3, 2011,
herewith submit their supplemental brief in opposition to the application of
25 U.S.C. § 1401 et seq.,1 stating the following:
ATURE OF MOTIO
The Defendant United States and the Wolfchild Plaintiffs entered into
a May 27, 2011 Joint Status Report. In discussing the bifurcation issue, the
1 The Plaintiff-Intervenors join, in relevant part, the Wolfchild Plaintiffs’
response in the Joint Status Report (Doc. # 1076) opposing the
Government’s position concerning the application of 25 U.S.C. § 1401 et
seq. to these proceedings. (JSR, pp. 6-7). These Plaintiffs would also join in
the Wolfchild supplemental brief opposing the statute, except where in
conflict with the Plaintiff-Intervenors’ previously articulated legal and
factual positions.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 1 of 11
2
Government raised an issue, for the first time to Plaintiff-Intervenors’
knowledge, concerning the application of 25 U.S.C. § 1401 et seq. to any
distribution plan contemplated by this Court.2 It is unclear whether the
Government argues the statute applies to any other judgment for damages
which may be ultimately entered in this case, such as the February 16, 1863
Act. In any case, the Government has never raised the issue of the
distribution statute directly with Plaintiff- Intervenors, principally because
these Plaintiffs did not have the opportunity to meaningfully participate in
the JSR or the issues raised therein. As the Court will recall, the Plaintiff-
Intervenors filed their own JSR independently of the Wolfchild Plaintiffs
and the United States. However, even in the limited discussions with the
Government regarding these Plaintiffs’ JSR, no mention was made of the
statute.
In the Wolfchild-US JSR, the Wolfchild Plaintiffs stated their
collective opposition to application of the statute. Those Plaintiffs asserted
four principal arguments against the statute: (1) the so-called Short
exception;3 (2) the Government’s failure to raise the 25 U.S.C. § 1401 earlier
during the notice phase of the case;4 (3) that applying the statute now in
2 JSR, p. 2.
3 Short v. United States, 28 Fed.Cl. 590 (1993); JSR, p. 6.
4 Id.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 2 of 11
3
these proceedings would operate to the material prejudice of “all Plaintiffs;”5
and (4) that the statute does not apply until Congress actually appropriates
funds to pay the judgment.6 As stated, these Plaintiffs join in these defenses,
in relevant part.
In response to raising the distribution statute in the JSR, this Court
issued an Order7 which requested that the parties submit supplemental briefs
addressing the following issues:
1) Does Chapter 16 of Title 25 of the United States Code, 25
U.S.C. §§ 1401-08, apply to a money judgment that is entered
and subject to payment under 28 U.S.C. § 2517 and 31 U.S.C. §
1304?
2) If Chapter 16 of Title 25 does not apply to such a money
judgment, can and should a distribution plan nonetheless follow
and reflect the plan provisions set out in Chapter 16?
3) If Chapter 16 of Title 25 does apply to such a money
judgment, what is the court’s role in ensuring that the
distribution plan accords with the judgment that is entered?
The Plaintiff-Intervenors oppose any application of 25 U.S.C. § 1401
to any money judgment that is entered by this Court for the reasons
articulated infra. While it may be possible to utilize some aspects of the
statute informally, these Plaintiffs submit that a money judgment can be
more efficaciously distributed by counsel for the Plaintiffs. In that way, this
5 Id.
6 Id. at 7.
7 (Doc. # 1083, June 3, 2011)
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 3 of 11
4
Court’s supervisory role can be minimized significantly, if not eliminated
altogether.
SUMMARY OF ARGUMET
The Intervenor-Plaintiffs8 submit that the Indian and Tribal Judgment
Funds Use and Distribution Act, 25 U.S.C. § 1401 et seq., does not apply to
any Court of Claims judgment granted in the case sub judice under the
Appropriations Acts of 1888, 1889 and 1890, the February 16, 1863 Act or
to any 5th Amendment taking by the United States. Consequently, the
Plaintiffs answer the first issue in the negative. Even though the Act does not
apply, this Court may borrow from various aspects of the Act, only so long
as the Government’s obligations are minimized, concisely defined and
measured aggressively so as to avoid delay in distribution to all
beneficiaries. These Plaintiffs further assert that this Court, based upon its
thorough knowledge of the facts and the law of the case, could efficaciously
serve as the final arbiter of any remaining issues and claims, while
minimizing its day-to-day oversight.
8 Hereinafter “Plaintiffs”. The Wolfchild Plaintiffs shall be identified as
such in this Brief.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 4 of 11
5
ARGUMET
I. I THE CASE SUB JUDICE, THE IDIA AD TRIBAL
JUDGMET FUDS USE AD DISTRIBUTIO ACT DOES OT
APPLY TO A MOEY JUDGMET THAT IS ETERED AD
SUBJECT TO PAYMET UDER 28 U.S.C. § 2517 AD
31 U.S.C. § 1304 FOR THE PLAITIFFS’ 1888, 1889 AD 1890
APPROPRIATIOS ACTS, THE FEBRUARY 16, 1863 ACT OR
THE 5TH AMEDMET “TAKIG” CLAIMS9
In its brief, the United States argues that “any money judgment
awarded in this case to the lineal descendants of the loyal Mdewakanton
triggers the Act and any distribution or use of funds appropriated to pay the
judgment must follow its requirements.”10 The United States’ interpretation
of the statute is misguided as a matter of law. The express language of the
Distribution Act is clear and unambiguous. The Act does not apply as a
matter of law.
A. By the Express Language of the Act, the Mdewakanton
Lineal Ancestor Claimants Are ot Covered By the Act as the
Judgments Which Would Be Entered By This Court Would Be in
Favor, ot of Any “Tribe, Band, Group, Pueblo or Community,”
But In the ame of the Individual Lineal Ancestor Plaintiffs.
It should be undisputed that the rules of statutory construction are
inapplicable if statutory language is clear and free of ambiguity. This well
9 The Intervenor-Plaintiffs would respectfully disagree with their fellow
Wolfchild Plaintiffs that they are a “tribe.”
10 (Emphasis added); U.S. Brief, (Doc. # 1086) at p. 5
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 5 of 11
6
established rule applies in the present case regarding interpretation of 25
U.S.C. § 1401. The statute provides, in relevant part,
Notwithstanding any other law, all use or distribution of funds
appropriated in satisfaction of a judgment of the Indian Claims
Commission or the United States Claims Court [United States
Court of Federal Claims] in favor of any Indian tribe, band,
group, pueblo, or community (hereinafter referred to as "Indian
tribe"), together with any investment income earned thereon,
after payment of attorney fees and litigation expenses, shall be
made pursuant to the provisions of this Act.11
The United States seizes upon the terms “Indian…group” to argue the
applicability of the statute.12 However, in order to properly interpret the
statute’s meaning, analysis must begin with the language of the statute itself.13
The Plaintiffs would submit that the Government’s statutory analysis
ignores language prior to that posed by the Defendant which is dispositive of
the issue. The statute first requires that this Court issue a “judgment...in favor
of any Indian…group.” In this Court’s December 21, 2010 decision,14 it
partially granted the “Plaintiffs” motion for summary judgment. The
“Plaintiffs” are over 20,000 individual lineal descendants of Mdewakanton
ancestors who possess common claims for actions and omissions of the
United States. While these Plaintiffs are a “group” because they share
11 25 U.S.C. § 1401(a).
12 U.S. Brief, (Doc. # 1086), p. 4-5.
13 Int'l Bus. Machs. v. United States, 201 F.3d 1367, 1372 (Fed. Cir. 2000),
cert. denied, 531 U.S. 1183, 148 L. Ed. 2d 1025, 121 S. Ct. 1167 (2001).
14 Wolfchild v. United States, 96 Fed. Cl. 302, 311, 352 (2010).
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 6 of 11
7
common Indian heritage and legal claims, no judgment will come out in the
name of the “Loyal Medwakanton,” the “friendly Sioux” or even the “Dakota
Oyate,” as advocated by the Wolfchild Plaintiffs. There is no named group
Plaintiff, as such, whom will collectively share in a judgment. The judgment
will simply be in the name of every eligible individual lineal descendant
Plaintiff whom can prove their personal claims. The judgment will not be
granted by this Court “in favor” of any “group” and, on that basis, 25 U.S.C. §
1401 does not apply by its express terms. If the statutory language is plain
and unambiguous, then the language of the act controls.15
The Plaintiffs otherwise join in the opposition by the Wolfchild
Plaintiffs in their JSR and as set forth in their responsive brief to the extent the
positions taken are not in conflict with those previously announced in earlier
briefing and the Plaintiffs’ individual JSR.
II. ALTHOUGH THE IDIA AD TRIBAL JUDGMET FUDS
USE AD DISTRIBUTIO ACT DOES OT APPLY TO A MOEY
JUDGMET ETERED AD SUBJECT TO PAYMET UDER 28
U.S.C. § 2517 AD 31 U.S.C. § 1304, PARTS OF THE ACT’S
FRAMEWORK AD PROCEDURE MAY PROVIDE MEAIGFUL
GUIDACE FOR A WORKABLE DISTRIBUTIO PLA – EVE IF
THE MOIES WERE DISTRIBUTED BY THE PLAITIFFS’
COUSEL
15 Chevron U.S.A., Inc. v. !atural Res. Def. Council, Inc., 467 U.S. 837, 842-
43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 7 of 11
8
Although 25 U.S.C. § 1401 is inapplicable, this Court may
nonetheless borrow aspects of the statutory framework – particularly if it
proves to promote judicial economy and efficacy. However, the Plaintiffs
spent significant time in their JSR detailing a plan for determining
eligibility. Plaintiffs would propose to supplement that proposed procedure
with a workable distribution plan that interfaces with the suggested
eligibility procedure. The Plaintiffs propose the following distribution plan:
DISTRIBUTIO PLA
The Distribution Plan for the $ 673,000 in stipulated damages under
the 1888, 1889 and 1890 Appropriations Act shall be distributed under the
following plan:
1. Once the Court has confirmed the eligibility criteria, all Plaintiffs and
the United States shall follow the process for determining eligibility as set
forth in the Intervening Plaintiffs’ Joint Status Report (Doc. # 1078, May 27,
2011) § I, pp. 4-11;
2. Once all appeals for Plaintiffs’ eligibility have been exhausted,16 the
parties shall submit to the Court a joint final eligibility list, in the form of a
proposed Order of Judgment, which shall show the name of each Plaintiff
and their counsel for Court approval.
3. Based upon the final number of approved Plaintiffs, the Court shall
order a per capita payout to each Plaintiff. Although the Judgment shall be
in the total amount of stipulated damages, the Judgment shall also direct the
Department of Treasury to pay the damages, apportioned to the number of
eligible Plaintiffs represented by each counsel, into the counsel’s trust
16 The Intervening Plaintiffs respectfully submit that any aggrieved
Plaintiff(s) which was denied eligibility informally and, under the proposed
procedures (JSR § I, ¶ 10, pp. 9-10), also denied by the Court, would have
due process right to appeal the trial court’s decision.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 8 of 11
9
account. The respective counsel shall be responsible for the actual
distribution to the eligible Plaintiffs.
4. Prior to paying any monies, the Department of Treasury will require
that a limited power of attorney be contained in the fee agreement or
separately obtained from each Plaintiff, prior to payment, which should read
as follows or in similar form:
Pursuant to 28 U.S.C. § 2516, 28 U.S.C. § 2517 and 31 U.S.C.
§ 1304, the undersigned Plaintiff specifically authorizes the
United States Treasury Department to transmit the payment of
any judgment to my attorney’s trust account in the case of
Wolfchild et al. v. United States, Case No. 03-2684L on behalf
of the Plaintiff for disbursement through this limited power of
attorney, which will automatically expire after the requested
disbursement by the Treasury Department.
5. At the time a judgment is granted, each Attorney shall prepare
and submit to the United States a bill of any and all costs, expenses
and attorney’s fees through judgment under an appropriate fee-
shifting statute. The parties shall attempt to negotiate reimbursement
within 60 days from the date of judgment. In the event they are
unable to reach agreement, the bill of costs, expenses and fees shall be
submitted for court approval.
6. Counsel shall submit a supplemental bill for any post-judgment work
in accordance with the appropriate fee-shifting statute.
The Plaintiffs propose this Distribution Plan acknowledging, in this or
any other distribution scheme, the inherent difficulty of bifurcating the
Appropriation Act claims from the February 1863 or other viable causes of
action. Bifurcation would likewise be an obstacle to allocating judgment
monies between the Wolfchild Plaintiffs and the Plaintiff-Intervenors. The
most efficacious course is a meaningful informal process that resolves the
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 9 of 11
10
majority of the Plaintiffs’ eligibility claims, without court involvement
except as an final appeal apparatus.
III. EVE THOUGH THE IDIA AD TRIBAL FUDS USE
AD DISTRIBUTIO ACT DOES OT APPLY TO SUCH A
MOEY JUDGMET, PLAITIFFS FORESEE THAT THE COURT
COULD MERELY ASSUME THE ROLE OF A FIAL ARBITER OF
DEFIED DISPUTES
The Plaintiffs have proposed an eligibility plan, which they now
couple with a simplified distribution plan that utilizes resources that
minimize the role of this Court – except as a final arbiter of defined disputes.
Who better to distribute monies than the Plaintiff’s counsel? They already
have an established relationship with their client Plaintiffs. Perhaps even
more important is the anticipated significant reduction in the Court’s
involvement. These proposed plans necessarily intend to minimize this
Court’s future involvement.
WHEREFORE, the Plaintiff-Intervenors request the Court rule, as a matter
of law, that 25 U.S.C. § 1401 does not apply in the first instance, or
alternatively, that the Government untimely raised the issue. These
Plaintiffs further request that the Court adopt their eligibility and distribution
plans, so as to significantly reduce the Court’s supervisory role in resolving
the outstanding issues. Any final distribution plan should consider
efficacious aspects of the Distribution Act, even though it is inapplicable.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 10 of 11
11
Respectfully Submitted,
s/ R. Deryl Edwards, Jr.
R. Deryl Edwards MO# 48277
606 S. Pearl
Joplin, MO 64801-2582
(417) 624-1962 (Telephone)
(417) 624-1965 (Facsimile)
rde417@hotmail.com
ATTORNEY FOR THE ROBERTSON
LINEAL DESCENDANTS AND
FOR THE PLAINTIFF-INTERVENORS
CERTIFICATE OF SERVICE
The Plaintiff-Intervenors, by and through their respective above-
signed counsel, herewith certify that they transmitted the foregoing
Memorandum in Opposition to the United States Brief in Support of 25
U.S.C. § 1401 and in response to the Court’s Order of June 3, 2011 by ECF
transmittal, this 24th day of June, 2011.
s/ R. Deryl Edwards, Jr._
R. Deryl Edwards, Jr.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 11 of 11
__________________________________________
)
SHELDON PETERS WOLFCHILD, et al., )
)
)
vs. ) Case No.: 03 – 2684L
)
UNITED STATES, ) Hon. Charles F. Lettow
)
Defendant. )
__________________________________________)
PLAITIFF-ITERVEORS’ SUPPLEMETAL BRIEF I
OPPOSITIO TO THE UITED STATES’ BRIEF I SUPPORT OF
THE APPLICATIO OF 25 U.S.C. § 1401 et seq.
Comes Now Plaintiff-Intervenors, through the undersigned counsel,
and, pursuant to this Court’s Order (Doc. # 1083) dated June 3, 2011,
herewith submit their supplemental brief in opposition to the application of
25 U.S.C. § 1401 et seq.,1 stating the following:
ATURE OF MOTIO
The Defendant United States and the Wolfchild Plaintiffs entered into
a May 27, 2011 Joint Status Report. In discussing the bifurcation issue, the
1 The Plaintiff-Intervenors join, in relevant part, the Wolfchild Plaintiffs’
response in the Joint Status Report (Doc. # 1076) opposing the
Government’s position concerning the application of 25 U.S.C. § 1401 et
seq. to these proceedings. (JSR, pp. 6-7). These Plaintiffs would also join in
the Wolfchild supplemental brief opposing the statute, except where in
conflict with the Plaintiff-Intervenors’ previously articulated legal and
factual positions.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 1 of 11
2
Government raised an issue, for the first time to Plaintiff-Intervenors’
knowledge, concerning the application of 25 U.S.C. § 1401 et seq. to any
distribution plan contemplated by this Court.2 It is unclear whether the
Government argues the statute applies to any other judgment for damages
which may be ultimately entered in this case, such as the February 16, 1863
Act. In any case, the Government has never raised the issue of the
distribution statute directly with Plaintiff- Intervenors, principally because
these Plaintiffs did not have the opportunity to meaningfully participate in
the JSR or the issues raised therein. As the Court will recall, the Plaintiff-
Intervenors filed their own JSR independently of the Wolfchild Plaintiffs
and the United States. However, even in the limited discussions with the
Government regarding these Plaintiffs’ JSR, no mention was made of the
statute.
In the Wolfchild-US JSR, the Wolfchild Plaintiffs stated their
collective opposition to application of the statute. Those Plaintiffs asserted
four principal arguments against the statute: (1) the so-called Short
exception;3 (2) the Government’s failure to raise the 25 U.S.C. § 1401 earlier
during the notice phase of the case;4 (3) that applying the statute now in
2 JSR, p. 2.
3 Short v. United States, 28 Fed.Cl. 590 (1993); JSR, p. 6.
4 Id.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 2 of 11
3
these proceedings would operate to the material prejudice of “all Plaintiffs;”5
and (4) that the statute does not apply until Congress actually appropriates
funds to pay the judgment.6 As stated, these Plaintiffs join in these defenses,
in relevant part.
In response to raising the distribution statute in the JSR, this Court
issued an Order7 which requested that the parties submit supplemental briefs
addressing the following issues:
1) Does Chapter 16 of Title 25 of the United States Code, 25
U.S.C. §§ 1401-08, apply to a money judgment that is entered
and subject to payment under 28 U.S.C. § 2517 and 31 U.S.C. §
1304?
2) If Chapter 16 of Title 25 does not apply to such a money
judgment, can and should a distribution plan nonetheless follow
and reflect the plan provisions set out in Chapter 16?
3) If Chapter 16 of Title 25 does apply to such a money
judgment, what is the court’s role in ensuring that the
distribution plan accords with the judgment that is entered?
The Plaintiff-Intervenors oppose any application of 25 U.S.C. § 1401
to any money judgment that is entered by this Court for the reasons
articulated infra. While it may be possible to utilize some aspects of the
statute informally, these Plaintiffs submit that a money judgment can be
more efficaciously distributed by counsel for the Plaintiffs. In that way, this
5 Id.
6 Id. at 7.
7 (Doc. # 1083, June 3, 2011)
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 3 of 11
4
Court’s supervisory role can be minimized significantly, if not eliminated
altogether.
SUMMARY OF ARGUMET
The Intervenor-Plaintiffs8 submit that the Indian and Tribal Judgment
Funds Use and Distribution Act, 25 U.S.C. § 1401 et seq., does not apply to
any Court of Claims judgment granted in the case sub judice under the
Appropriations Acts of 1888, 1889 and 1890, the February 16, 1863 Act or
to any 5th Amendment taking by the United States. Consequently, the
Plaintiffs answer the first issue in the negative. Even though the Act does not
apply, this Court may borrow from various aspects of the Act, only so long
as the Government’s obligations are minimized, concisely defined and
measured aggressively so as to avoid delay in distribution to all
beneficiaries. These Plaintiffs further assert that this Court, based upon its
thorough knowledge of the facts and the law of the case, could efficaciously
serve as the final arbiter of any remaining issues and claims, while
minimizing its day-to-day oversight.
8 Hereinafter “Plaintiffs”. The Wolfchild Plaintiffs shall be identified as
such in this Brief.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 4 of 11
5
ARGUMET
I. I THE CASE SUB JUDICE, THE IDIA AD TRIBAL
JUDGMET FUDS USE AD DISTRIBUTIO ACT DOES OT
APPLY TO A MOEY JUDGMET THAT IS ETERED AD
SUBJECT TO PAYMET UDER 28 U.S.C. § 2517 AD
31 U.S.C. § 1304 FOR THE PLAITIFFS’ 1888, 1889 AD 1890
APPROPRIATIOS ACTS, THE FEBRUARY 16, 1863 ACT OR
THE 5TH AMEDMET “TAKIG” CLAIMS9
In its brief, the United States argues that “any money judgment
awarded in this case to the lineal descendants of the loyal Mdewakanton
triggers the Act and any distribution or use of funds appropriated to pay the
judgment must follow its requirements.”10 The United States’ interpretation
of the statute is misguided as a matter of law. The express language of the
Distribution Act is clear and unambiguous. The Act does not apply as a
matter of law.
A. By the Express Language of the Act, the Mdewakanton
Lineal Ancestor Claimants Are ot Covered By the Act as the
Judgments Which Would Be Entered By This Court Would Be in
Favor, ot of Any “Tribe, Band, Group, Pueblo or Community,”
But In the ame of the Individual Lineal Ancestor Plaintiffs.
It should be undisputed that the rules of statutory construction are
inapplicable if statutory language is clear and free of ambiguity. This well
9 The Intervenor-Plaintiffs would respectfully disagree with their fellow
Wolfchild Plaintiffs that they are a “tribe.”
10 (Emphasis added); U.S. Brief, (Doc. # 1086) at p. 5
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 5 of 11
6
established rule applies in the present case regarding interpretation of 25
U.S.C. § 1401. The statute provides, in relevant part,
Notwithstanding any other law, all use or distribution of funds
appropriated in satisfaction of a judgment of the Indian Claims
Commission or the United States Claims Court [United States
Court of Federal Claims] in favor of any Indian tribe, band,
group, pueblo, or community (hereinafter referred to as "Indian
tribe"), together with any investment income earned thereon,
after payment of attorney fees and litigation expenses, shall be
made pursuant to the provisions of this Act.11
The United States seizes upon the terms “Indian…group” to argue the
applicability of the statute.12 However, in order to properly interpret the
statute’s meaning, analysis must begin with the language of the statute itself.13
The Plaintiffs would submit that the Government’s statutory analysis
ignores language prior to that posed by the Defendant which is dispositive of
the issue. The statute first requires that this Court issue a “judgment...in favor
of any Indian…group.” In this Court’s December 21, 2010 decision,14 it
partially granted the “Plaintiffs” motion for summary judgment. The
“Plaintiffs” are over 20,000 individual lineal descendants of Mdewakanton
ancestors who possess common claims for actions and omissions of the
United States. While these Plaintiffs are a “group” because they share
11 25 U.S.C. § 1401(a).
12 U.S. Brief, (Doc. # 1086), p. 4-5.
13 Int'l Bus. Machs. v. United States, 201 F.3d 1367, 1372 (Fed. Cir. 2000),
cert. denied, 531 U.S. 1183, 148 L. Ed. 2d 1025, 121 S. Ct. 1167 (2001).
14 Wolfchild v. United States, 96 Fed. Cl. 302, 311, 352 (2010).
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 6 of 11
7
common Indian heritage and legal claims, no judgment will come out in the
name of the “Loyal Medwakanton,” the “friendly Sioux” or even the “Dakota
Oyate,” as advocated by the Wolfchild Plaintiffs. There is no named group
Plaintiff, as such, whom will collectively share in a judgment. The judgment
will simply be in the name of every eligible individual lineal descendant
Plaintiff whom can prove their personal claims. The judgment will not be
granted by this Court “in favor” of any “group” and, on that basis, 25 U.S.C. §
1401 does not apply by its express terms. If the statutory language is plain
and unambiguous, then the language of the act controls.15
The Plaintiffs otherwise join in the opposition by the Wolfchild
Plaintiffs in their JSR and as set forth in their responsive brief to the extent the
positions taken are not in conflict with those previously announced in earlier
briefing and the Plaintiffs’ individual JSR.
II. ALTHOUGH THE IDIA AD TRIBAL JUDGMET FUDS
USE AD DISTRIBUTIO ACT DOES OT APPLY TO A MOEY
JUDGMET ETERED AD SUBJECT TO PAYMET UDER 28
U.S.C. § 2517 AD 31 U.S.C. § 1304, PARTS OF THE ACT’S
FRAMEWORK AD PROCEDURE MAY PROVIDE MEAIGFUL
GUIDACE FOR A WORKABLE DISTRIBUTIO PLA – EVE IF
THE MOIES WERE DISTRIBUTED BY THE PLAITIFFS’
COUSEL
15 Chevron U.S.A., Inc. v. !atural Res. Def. Council, Inc., 467 U.S. 837, 842-
43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 7 of 11
8
Although 25 U.S.C. § 1401 is inapplicable, this Court may
nonetheless borrow aspects of the statutory framework – particularly if it
proves to promote judicial economy and efficacy. However, the Plaintiffs
spent significant time in their JSR detailing a plan for determining
eligibility. Plaintiffs would propose to supplement that proposed procedure
with a workable distribution plan that interfaces with the suggested
eligibility procedure. The Plaintiffs propose the following distribution plan:
DISTRIBUTIO PLA
The Distribution Plan for the $ 673,000 in stipulated damages under
the 1888, 1889 and 1890 Appropriations Act shall be distributed under the
following plan:
1. Once the Court has confirmed the eligibility criteria, all Plaintiffs and
the United States shall follow the process for determining eligibility as set
forth in the Intervening Plaintiffs’ Joint Status Report (Doc. # 1078, May 27,
2011) § I, pp. 4-11;
2. Once all appeals for Plaintiffs’ eligibility have been exhausted,16 the
parties shall submit to the Court a joint final eligibility list, in the form of a
proposed Order of Judgment, which shall show the name of each Plaintiff
and their counsel for Court approval.
3. Based upon the final number of approved Plaintiffs, the Court shall
order a per capita payout to each Plaintiff. Although the Judgment shall be
in the total amount of stipulated damages, the Judgment shall also direct the
Department of Treasury to pay the damages, apportioned to the number of
eligible Plaintiffs represented by each counsel, into the counsel’s trust
16 The Intervening Plaintiffs respectfully submit that any aggrieved
Plaintiff(s) which was denied eligibility informally and, under the proposed
procedures (JSR § I, ¶ 10, pp. 9-10), also denied by the Court, would have
due process right to appeal the trial court’s decision.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 8 of 11
9
account. The respective counsel shall be responsible for the actual
distribution to the eligible Plaintiffs.
4. Prior to paying any monies, the Department of Treasury will require
that a limited power of attorney be contained in the fee agreement or
separately obtained from each Plaintiff, prior to payment, which should read
as follows or in similar form:
Pursuant to 28 U.S.C. § 2516, 28 U.S.C. § 2517 and 31 U.S.C.
§ 1304, the undersigned Plaintiff specifically authorizes the
United States Treasury Department to transmit the payment of
any judgment to my attorney’s trust account in the case of
Wolfchild et al. v. United States, Case No. 03-2684L on behalf
of the Plaintiff for disbursement through this limited power of
attorney, which will automatically expire after the requested
disbursement by the Treasury Department.
5. At the time a judgment is granted, each Attorney shall prepare
and submit to the United States a bill of any and all costs, expenses
and attorney’s fees through judgment under an appropriate fee-
shifting statute. The parties shall attempt to negotiate reimbursement
within 60 days from the date of judgment. In the event they are
unable to reach agreement, the bill of costs, expenses and fees shall be
submitted for court approval.
6. Counsel shall submit a supplemental bill for any post-judgment work
in accordance with the appropriate fee-shifting statute.
The Plaintiffs propose this Distribution Plan acknowledging, in this or
any other distribution scheme, the inherent difficulty of bifurcating the
Appropriation Act claims from the February 1863 or other viable causes of
action. Bifurcation would likewise be an obstacle to allocating judgment
monies between the Wolfchild Plaintiffs and the Plaintiff-Intervenors. The
most efficacious course is a meaningful informal process that resolves the
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 9 of 11
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majority of the Plaintiffs’ eligibility claims, without court involvement
except as an final appeal apparatus.
III. EVE THOUGH THE IDIA AD TRIBAL FUDS USE
AD DISTRIBUTIO ACT DOES OT APPLY TO SUCH A
MOEY JUDGMET, PLAITIFFS FORESEE THAT THE COURT
COULD MERELY ASSUME THE ROLE OF A FIAL ARBITER OF
DEFIED DISPUTES
The Plaintiffs have proposed an eligibility plan, which they now
couple with a simplified distribution plan that utilizes resources that
minimize the role of this Court – except as a final arbiter of defined disputes.
Who better to distribute monies than the Plaintiff’s counsel? They already
have an established relationship with their client Plaintiffs. Perhaps even
more important is the anticipated significant reduction in the Court’s
involvement. These proposed plans necessarily intend to minimize this
Court’s future involvement.
WHEREFORE, the Plaintiff-Intervenors request the Court rule, as a matter
of law, that 25 U.S.C. § 1401 does not apply in the first instance, or
alternatively, that the Government untimely raised the issue. These
Plaintiffs further request that the Court adopt their eligibility and distribution
plans, so as to significantly reduce the Court’s supervisory role in resolving
the outstanding issues. Any final distribution plan should consider
efficacious aspects of the Distribution Act, even though it is inapplicable.
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Respectfully Submitted,
s/ R. Deryl Edwards, Jr.
R. Deryl Edwards MO# 48277
606 S. Pearl
Joplin, MO 64801-2582
(417) 624-1962 (Telephone)
(417) 624-1965 (Facsimile)
rde417@hotmail.com
ATTORNEY FOR THE ROBERTSON
LINEAL DESCENDANTS AND
FOR THE PLAINTIFF-INTERVENORS
CERTIFICATE OF SERVICE
The Plaintiff-Intervenors, by and through their respective above-
signed counsel, herewith certify that they transmitted the foregoing
Memorandum in Opposition to the United States Brief in Support of 25
U.S.C. § 1401 and in response to the Court’s Order of June 3, 2011 by ECF
transmittal, this 24th day of June, 2011.
s/ R. Deryl Edwards, Jr._
R. Deryl Edwards, Jr.
Case 1:03-cv-02684-CFL Document 1088 Filed 06/24/11 Page 11 of 11
