may 13,2011 hearing Transcript of wolfchild vs US

[hermin1]

UNITED STATES
COURT OF FEDERAL CLAIMS
HERITAGE REPORTING CORPORATION
Official Reporters
1220 L Street, N.W., Suite 600
Washington, D.C. 20005
[phone]
[e-mail]
SHELDON PETERS WOLFCHILD, )
et al., )
)
Plaintiffs, )
)
v. ) Docket Nos. 03-2684L
) 01-568L
THE UNITED STATES, )
)
Defendant. )
Pages: 1 through 163
Place: Washington, D.C.
Date: May 13, 2011
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, )
et al., )
)
Plaintiffs, )
)
v. ) Docket Nos. 03-2684L
) 01-568L
THE UNITED STATES, )
)
Defendant. )
Courtroom 5
National Courts Building
717 Madison Place, N.W.
Washington, D.C.
Friday,
May 13, 2011
The parties met, pursuant to notice of the
Court, at 10:00 a.m.
BEFORE: HONORABLE CHARLES F. LETTOW
Judge
APPEARANCES:
For the Petitioners:
ERICK G. KAARDAL, Esquire
Mohrmon & Kaardal, P.A.
33 South 6th Street, Suite 4100
Minneapolis, Minnesota 55402
[phone]
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APPEARANCES: (Cont'd)
For the Respondent:
JODY HELEN SCHWARTZ, Esquire
U.S. Department of Justice
Civil Division
601 D Street, N.W.
P.O. Box 663
Washington, D.C. 20004
[phone]
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1 P R O C E E D I N G S
2 (10:00 a.m.)
3 THE COURT: Good morning. The case before
4 the Court this morning is Sheldon Peters Wolfchild v.
5 United States et al., No. 03-2684.
6 For the record, Mr. Kaardal, would you
7 introduce yourself and your colleagues as counsel for
8 Plaintiffs?
9 MR. KAARDAL: Yes. My name is Erick Kaardal
10 and my colleague from my firm, Bill Mohrman, is here,
11 and Barry Hogan is here and Gary Montana and Deryl
12 Edwards and Robin Zephier.
13 THE COURT: Welcome. Let me make sure I
14 have, let's see, Mr. Hogan, Mr. Montana, Mr. Edwards
15 and Mr. Zephier. Do I have that right? As well as
16 Mr. Mohrman.
17 Ms. Schwarz, welcome.
18 MS. SCHWARZ: Thank you, Your Honor. Good
19 morning, Your Honor. Jody Schwarz on behalf of the
20 United States and the Department of Justice. Also
21 with me is Mr. Dennis Watts with the Department of
22 Justice.
23 MR. WATTS: Good morning, Your Honor.
24 THE COURT: Good morning.
25 MS. SCHWARZ: Nathaniel Watson with the
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1 Department of Justice. They're both attorneys.
2 THE COURT: Good morning.
3 MS. SCHWARZ: Ms. Lauren DeFilippo. She's a
4 law clerk with us.
5 THE COURT: Welcome.
6 MS. SCHWARZ: And then Mr. James Porter with
7 Department of the Interior.
8 THE COURT: All right. Thank you. It's
9 good to see you all.
10 Now, if I may, what I'd like to do is call
11 the role of the people who may be on the telephone.
12 Mr. Gryzbeck, are you on the line?
13 MR. PALMER: One moment, Your Honor.
14 (Pause.)
15 Mr. PALMER: Good morning, everyone. This
16 is Don Palmer calling, I'm with the Court of Federal
17 Claims staff, and I need to instruct everyone to mute
18 their phone before I connect you to the courtroom.
19 Can I have everyone please mute their phone? And when
20 the Judge addresses you, you may then unmute your
21 phone and speak, but with the technology, we need to
22 make sure that there's no room noise, okay?
23 Thank you. Hold for one moment.
24 (Pause.)
25 THE COURT: Mr. Gryzbeck, are you on the
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1 phone?
2 MR. GRYZBECK: Yes, Your Honor, I am.
3 THE COURT: All right. Thank you.
4 Ms. Felix, are you on the line?
5 MS. FELIX: Yes, I'm here, Your Honor.
6 THE COURT: Thank you. Mr. Blair?
7 MR. BLAIR: Yes, sir.
8 THE COURT: Mr. Leventhal?
9 MR. PALMER: I think he's not.
10 THE COURT: Okay. Mr. Johnson?
11 MR. JOHNSON: Yes, sir.
12 THE COURT: Ms. Emerson?
13 MS. EMERSON: Yes, Your Honor.
14 THE COURT: Mr. Thompson?
15 MR. THOMPSON: Yes, Your Honor.
16 THE COURT: Mr. Horn?
17 MR. HORN: Yes, Your Honor.
18 THE COURT: Ms. Strickerz?
19 MS. STRICKERZ: Yes, Your Honor.
20 THE COURT: Mr. Pierce?
21 MR. PIERCE: Yes, Your Honor.
22 THE COURT: Mr. DeGraff?
23 MR. DeGRAFF: Yes, Your Honor.
24 THE COURT: All right. Thank you.
25 Now, if at any time you wish to add
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1 something to the argument, I will ask and then you may
2 speak up, but for the moment we'll rely on those in
3 the courtroom to present the leading arguments.
4 What the Court had in mind, given the number
5 of motions, there must be more than 50 or 60 motions,
6 is to do this almost in reverse order this morning. I
7 probably should have given you a little warning, but
8 it didn't seem to sort out any other way.
9 What I'd like to do is address first, I'm
10 sure you're prepared on all these things, but address
11 first the government's 56(f) motion and then the
12 government's motion to dismiss and then the various
13 motions for summary judgment, including the
14 Plaintiff's motions and the government's cross-motion.
15 And then I'll have a few questions for everyone at the
16 end if that's satisfactory.
17 Mr. Kaardal, would you mind if we took that
18 order?
19 MR. KAARDAL: No, Your Honor, we think
20 that's a good order.
21 THE COURT: All right. Thank you. Ms.
22 Schwarz, is that fine?
23 MS. SCHWARZ: That's fine.
24 THE COURT: We'll start off with you then.
25 MS. SCHWARZ: Thank you, Your Honor.
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1 THE COURT: I think the point of the
2 exercise today is to do our level best with the three
3 things we sorted out at the last hearing in the case
4 as topics.
5 And with that, Ms. Schwarz?
6 MS. SCHWARZ: I do apologize, Your Honor. I
7 can't get as close to the microphone as I would like
8 to these days.
9 Basically the purpose of our Rule 56(f)
10 motion is to address the second topic that was brought
11 up in the Court's January scheduling order, which is
12 the persons who qualify as proper claimants in this
13 case.
14 As the Court and the parties are aware,
15 there are approximately 32 motions for summary
16 judgment that were filed by Plaintiffs in this case.
17 In addition to those motions for summary judgment,
18 included were proposed stipulations of fact and also
19 prior to that the United States received, and this was
20 actually in many proposed stipulations as to the
21 genealogy of individual claimants in this case.
22 In receiving these materials, we have
23 received boxes and binders, many CDs that contain
24 different tribes' birth certificates, family Bibles,
25 death certificates, any type of notation where
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1 Plaintiffs are trying to assert that they could indeed
2 trace themselves back to someone they felt was an
3 original eligible person under the Appropriations Act,
4 and then some people also submitted materials under
5 the theory that they were also eligible as
6 beneficiaries to the 1863 Act.
7 In uploading this material to our files, it
8 is estimated that it's over 150,000 pages worth of
9 documentation. In attempting to go through it and
10 also brief the legal arguments that are currently
11 before the Court, it was an impossibility to do that
12 in two months. In my opinion it's taken them a very
13 long time to put together this detailed information,
14 but it was not enough time for the government to be
15 able to review it.
16 I as an attorney with the Department of
17 Justice know that the Federal Rules of Evidence in
18 terms of ancient documents, that's what should be
19 applied. But I can't say what that birth certificate
20 means, how to trace it back or what not, so the
21 original genesis of the motion was that legal issues
22 before the Court need to be decided, and then at that
23 moment in time the United States would be in a
24 position to then look at the information, specifically
25 at what some of the legal issues are depending on how
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1 they're decided or depending on how the Court rules on
2 1863. Anything that's asserted after 1863 is no
3 longer a material fact in this case.
4 In trying to look at how to best present
5 this to the Court, it's almost akin to the Military
6 Pay Act cases in which individuals compiled a lawsuit
7 collectively and assert that they're qualified as a
8 military colonel or some rank who were allegedly
9 improperly pushed out of the military. In those cases
10 they have the burden of proof to the Court and the
11 Court has to make the determination of were they a
12 colonel, what were the grounds for their dismissal and
13 was that valid, and then it's the burden of the United
14 States to rebut that.
15 Here we have 20,000 individuals who are
16 claiming a share of the judgment from December. We
17 need to know what the authorized claim is, the
18 parameters of that. Right now it's very unmanageable
19 on an individual basis without defining even just the
20 outer parameters of who qualifies, and Plaintiffs need
21 to prove that.
22 I'd also assert to the Court that this is
23 almost akin to the Jesse Short litigation in which --
24 THE COURT: I'm sorry, which litigation?
25 MS. SCHWARZ: The Jesse Short litigation.
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1 The main opinion is 661 F.2d 150. That litigation was
2 done with the Hoopa Valley Tribe where the tribe had
3 certain timber rights that the BIA had paid to them.
4 There were other individuals who were excluded from
5 that tribe who also claimed rights to the timber
6 proceeds and past sales, current sales and future
7 sales. The Court in that instance held hearings to
8 determine plaintiffs' rights to recover, and a
9 questionnaire was developed and agreed to by the
10 parties to determine what plaintiff was eligible to
11 participate in the judgment. Parties filed cross12
motions. The Court granted summary judgment on the
13 individual claimants who had alleged that they were
14 entitled to partake in the judgment that the Court
15 reached.
16 THE COURT: The Court had in mind something
17 like that here obviously. We have had for some time
18 basically a listing of Group A and Group B Plaintiffs,
19 and by the Court's reckoning it reached approximately
20 20,750 people. At that point, though, the Court had
21 the government or had Plaintiffs provide to the
22 government and to the Court, as you say, a CD listing
23 of who the individual claimants were.
24 Now at this stage, and some people provided
25 genealogies earlier, three or four years ago, and now
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1 we're at a stage where all the genealogies have come
2 in, and part of the exercise, and the Court knew it
3 was going to be a daunting task to sort through and
4 just see if indeed people were lineal descendants of
5 Loyal Mdewakantons, but that was part of the exercise.
6 I honestly don't know any other way to do it other
7 than provide for a summary judgment and a contest or a
8 dispute as to certain persons.
9 Now we do have the Group A and Group B and
10 you've briefed those issues, but I'm a little
11 nonplussed that the Department of Interior hasn't
12 given you sufficient help to be able to sort through
13 the Group A and Group B claimants.
14 MS. SCHWARZ: They have started on that
15 task, but unfortunately given the budgetary
16 situations, some of the time was spent dealing with
17 the potential government shutdown and limited
18 resources, the period of time --
19 THE COURT: Which didn't happen. We worked
20 through it.
21 MS. SCHWARZ: Yes, we did. I likewise
22 worked through it. But in dealing with all that the
23 timeframe allocated wasn't enough. I know the
24 response said that the U.S. is trying to reopen
25 discovery. I want to share that we're not trying to
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1 reopen discovery, seek discovery. As a matter of fact
2 we have argued previously against discovery. It's
3 just that what we have right now is very unwieldy and
4 very unmanageable and it would be useful to have
5 parameters, especially to have the 1863 issue decided
6 because a lot of the stipulations that people have
7 submitted have stated that in addition to the
8 Appropriations Act that they're eligible beneficiaries
9 of any claims from the 1863 Act.
10 THE COURT: Yes.
11 MS. SCHWARZ: And so having to view the
12 material that's been submitted under both acts, under
13 both standards, is a very high burden on the United
14 States. If one of those could be taken out, at least
15 that narrows down the field of inquiry.
16 Even with the Group A and Group B plan, as
17 the Court has found in administering the land
18 assignments for the 1886 census, Interior has taken
19 the position that it was descendants from the 1886 and
20 the 1889 censuses. And so now we're to the point
21 where people are using other lists as determinative of
22 their eligibility for those frozen funds. And to the
23 extent there can be some guidance, because there
24 hasn't been a definitive ruling, rather that they
25 could show by a preponderance, and there was a motion
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1 that was submitted dealing with the Court taking
2 judicial notice, which we filed a partial opposition
3 to in which we noted that some of the lists which came
4 out much later than when the land assignments started,
5 I believe it was like the 1917 Scott List.
6 THE COURT: Yes.
7 MS. SCHWARZ: Are not determinative. So to
8 the extent that those lists can be, the Court rules on
9 those lists as not being determinative and not being a
10 valid source of someone's eligibility --
11 THE COURT: We'll come to that in the
12 subsequent arguments because there is a question about
13 whether or not there were additions to especially the
14 1889 list or supplement.
15 MS. SCHWARZ: So to the extent that those
16 issues can be decided, that will significantly curtail
17 the work that the U.S. would have to engage in to just
18 review this genealogy information.
19 THE COURT: All right. What action would
20 you propose the Court take in its decision? Where
21 would you propose that the Court leave this case?
22 Part of the problem is this case has been pending,
23 well, it's not quite eight years, but we're creeping
24 up on eight years. And granted, it is a terrifically
25 complicated case and very hard to manage, but the
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1 Court has done its best to keep everything sorted
2 through so we're not in a muddle. Where would you
3 propose we go from here?
4 MS. SCHWARZ: From this point I'm fully
5 appreciative of everything that the Court has done and
6 fully appreciative of everything that Plaintiffs have
7 done. As you know, they've worked in making a very
8 difficult --
9 THE COURT: Well, we commend you and we're
10 sympathetic.
11 (Laughter.)
12 MS. SCHWARZ: And so I understand. I
13 haven't been involved in this case as long as the
14 parties here have, and I appreciate the burden that's
15 been placed upon everyone. It's been the government's
16 vision that at this point since I've been associated
17 with the case that the Court would bring this case to
18 final judgment, that it would make a decision as to
19 the legal effects of the Appropriations Act. At this
20 point Plaintiffs have raised claims regarding the 1863
21 Act and the Indian Trade and Nonintercourse Act and
22 also whether there is a takings claim if the Court
23 issues its legal opinion as to the impact whether
24 Plaintiffs can assert any claims under that.
25 Once those are decided, once the legal
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1 issues are fleshed out, it's also our hope that the
2 Court would at least provide guidance on how the U.S.
3 would interpret the genealogy information, and to the
4 extent the Court can make a determination as to
5 Plaintiffs' eligibility, if anyone can prove
6 descendancy from the 1886, the 1889 censuses, if
7 that's the final determinative point as has been
8 Interior's position or if there is in the motion for
9 judicial notice there were additional lists that were
10 created, if the Court says that those lists are
11 determinative or not determinative, that would also
12 assist.
13 And then at that point we have the judgment
14 and there's a finite amount of money that the parties
15 have agreed to that has come from what the United
16 States has deemed the frozen funds and then once
17 that's decided, we will be able to distribute judgment
18 to Plaintiffs who have proved their eligibility.
19 THE COURT: At one point the Court had
20 considered the possibility of causing a Special Master
21 to be appointed to deal with the genealogy or any
22 disputes as to genealogy that might arise, but that
23 didn't seem altogether sensible without endeavoring to
24 sort through the matters on summary judgment first.
25 And a Special Master might be expensive, and I was
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1 reluctant to put that burden on the parties.
2 MS. SCHWARZ: Right. To the extent that
3 there is definitive parameters that are set by the
4 Court in formulating the standards of who can qualify
5 as an eligible beneficiary, I believe at that point it
6 would be easier, less time-consuming for the
7 Department of Interior to be able to work with
8 Plaintiffs to go through the material and then to the
9 extent any disputes come up to present those disputes
10 before this Court. In the Jesse Short litigation it
11 was a BIA office in California that went through the
12 material that was submitted and they were able to work
13 with plaintiffs, status reports were filed with the
14 Court.
15 THE COURT: Well, the Court had considered,
16 is there still a bureau office at Fort Snelling or in
17 the Minneapolis-St. Paul area?
18 MS. SCHWARZ: I believe that there is a
19 bureau office in Minneapolis.
20 THE COURT: Yes.
21 MS. SCHWARZ: I don't know if it's at Fort
22 Snelling. I would have to look into that.
23 THE COURT: Right. I mean, it was, but
24 that's not to say it has to be there now. I just
25 wanted to make sure.
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1 MS. SCHWARZ: It's not the intention of the
2 United States to drag these proceedings out or to try
3 to create hurdles because it's not a wise thing to do.
4 THE COURT: No, it's not.
5 MS. SCHWARZ: But to the extent that this
6 case can be made manageable and to the extent that we
7 can streamline it so that the parties can work
8 together because I think given all these motions the
9 parties have shown that we can work together that that
10 is what the United States is proposing. We're not
11 proposing to try to throw roadblocks in front of
12 Plaintiffs to try to stall, delay, seek additional
13 discovery. It's just that what we have right now, my
14 office is filled with boxes. My computer has been
15 crashed several times.
16 THE COURT: Let me ask you a question. This
17 is what I'd propose to ask of the parties at the very
18 end of this hearing today. If there is a judgment
19 that calls for a distribution of funds at least to
20 some persons, then there would seemingly have to be a
21 distribution plan.
22 MS. SCHWARZ: Yes.
23 THE COURT: Could some of those issues be
24 addressed in the distribution plan development?
25 MS. SCHWARZ: I believe so, yes.
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1 THE COURT: Okay. All right. Anything
2 further?
3 MS. SCHWARZ: No, that's all I have right
4 now, Your Honor. Thank you.
5 THE COURT: Thank you. Mr. Kaardal?
6 MR. KAARDAL: Your Honor, good morning.
7 THE COURT: Good morning.
8 MR. KAARDAL: I guess with respect to the
9 filing, I know what Ms. Schwarz said, but the filing
10 suggested that new legal issues be raised with respect
11 to claimant eligibility. And so 56(f) is nice, but
12 there is a summary judgment deadline for any new
13 issues relating to claimant eligibility to the 1886
14 trust funds. So when I hear claimant eligibility, I
15 see in their brief, are the Wolfchild Plaintiffs
16 Indians under federal law? Have Wolfchild Plaintiffs
17 timely severed their tribal relations? Have the
18 Wolfchild Plaintiffs received allotments, judgment
19 funds or any federal benefits as a member of another
20 Mdewakanton tribe or other Indian tribe? And whether
21 the Wolfchild Plaintiffs previously made any rights
22 Plaintiffs now attempt to resurrect?
23 THE COURT: Some of those issues, indeed
24 most of them, have previously been decided.
25 MR. KAARDAL: That's correct. And we've
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1 already had one motion for reconsideration that took
2 some time and a delay in bringing the motion for
3 interlocutory appeal which the Judge granted. And so
4 then there seems to be a reservation here of legal
5 issues regarding claimant eligibility, whereas I
6 believe the Group B and Group A people are both of one
7 mind with respect to lineal descent is something that
8 can be proven and the rules of evidence show that
9 there are ways to present evidence in court, even
10 ancient documents, that prove lineal descent.
11 And so it's something I struggled with at
12 the beginning of the case actually because I typed in
13 the 264 people and I expected to be able to identify
14 on my computer who the descendants were. It didn't
15 work that way. But then all this information was
16 collected and my good partner sat down and looked at
17 the documents and said, well, that's easy. No, it
18 wasn't easy.
19 And so the point is that we hot-linked our
20 compact disc, we tried to make it very easy. And I
21 think that the problem here, and I very much
22 appreciate the government and the government lawyers,
23 is they didn't start. And so I think if they'd come
24 to the Court and said we've started and we looked at a
25 few of them and they are eligible claimants. But here
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1 we are this late in the game and we haven't identified
2 one. Some of them, it's one or two birth
3 certificates. Their parent or their grandparents are
4 on the list. And so you get to the point where, do
5 they really have an incentive to do this?
6 Further, the damages here are pooled. My
7 damage theory is pooled, and so does the government
8 really have the incentive when you have pooled damages
9 to review the documents for lineal descendent?
10 Actually we have a greater interest and the Court
11 knows that we used a very high standard when we signed
12 up Plaintiffs, but on January 21 the Court said it's
13 going to be preponderance of the evidence in this
14 Court. That's a very open standard. In fact in will
15 contests you can have one newspaper article could
16 prove the critical link in an intestate estate.
17 That's the preponderance of the evidence. So we
18 understand that there's a very low standard here for
19 proving --
20 THE COURT: Well, there is and there isn't.
21 It is the 51 percent standard. There isn't any doubt
22 about that. This is a civil case, a civil act.
23 That's the standard.
24 MR. KAARDAL: Correct. We accept that, yes.
25 And then with respect to a distribution
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1 plan, we'd be glad to cooperate in that. That seems
2 like a good way to go. The legal issues are resolved
3 and then there would be a distribution plan, and if
4 the standard is illuminated in the judgment, I think
5 the parties can come to agreement and maybe there are
6 a few disputes.
7 THE COURT: Well, really I didn't intend to
8 raise that question at this early stage of the
9 hearing, but I had intended to raise that at the end.
10 But if you'd think about that in the intervening time.
11 MR. KAARDAL: Okay. Thank you, Your Honor.
12 THE COURT: Thank you. Yes? Mr. Edwards?
13 MR. EDWARDS: Just briefly, Your Honor. I
14 just wanted to suggest that if the Department of
15 Justice wants more time to go through these documents,
16 I would ask that they be more specific in their
17 proposal. In other words, how many people do they
18 intend to devote to this, how much time do they
19 anticipate it will take, how many documents do they
20 think they can go through per week, something like
21 this so we have an idea rather than some kind of an
22 amorphous extension. A plan basically, Your Honor.
23 THE COURT: Yes, I understand the problem.
24 Okay. Anyone else? Mr. Montana?
25 MR. MONTANA: May it please the Court.
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1 Obviously we don't have any problem with a deferment,
2 but it was a very arduous task for my office to do the
3 two and a half months when you set the deadlines on
the 21st4 , to go through thousands and thousands of
5 birth certificates, scanning them and putting them in
6 order for the Court as per your order. We get nothing
7 from the government.
8 Now I think that they should be held to the
9 same standard as we were being held to. If we have
10 deadlines, just because they don't have enough
11 resources, they still should be required to meet
12 deadlines. In this case they're constantly being
13 given latitude here. But I have an ethical
14 responsibility to my clients to get stuff in on time.
15 So I know that it's an arduous task for them. It was
16 an arduous task for me. Small office. So, I mean,
17 that's my concern. You know, we killed ourselves for
18 two and a half months, seven days a week, sometimes 14
19 or 15 hours a day to meet the Court's deadline. Now
20 the government comes in here and says well, we don't
21 have enough resources. In most circuits that wouldn't
22 fly, you know what I mean?
23 THE COURT: I'm not sure it's going to fly
24 here, but we'll consider the position.
25 MR. MONTANA: That's my concern. And then
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1 also obviously the issue of who qualifies for
2 membership in the '86 proceeds as well as the '63 Act
3 issue. I don't know if you want to leave that issue -
4 -
5 THE COURT: Well, we will. We'll come to
6 that issue.
7 MR. MONTANA: All right. Very good, Your
8 Honor.
9 THE COURT: This back to front approach is
10 just taking a little step at a time and try to sort
11 through this fairly fundamental issue of whether we
12 can move forward with motions.
13 Anyone else? No? Okay. All right.
14 MS. SCHWARZ: Your Honor, may I address a
15 few points that were raised?
16 THE COURT: Yes, please. You may.
17 MS. SCHWARZ: The main issue in terms of
18 eligibility, I understand that the Court has issued
19 several opinions, the Federal Circuit has weighed in.
20 It's not that issues that have been previously decided
21 that we're trying to decide, but the main issue is
22 that Plaintiffs, many Plaintiffs have raised the fact
23 that they're eligible for any distribution under the
24 1863 Act, and no opinion has been issued, nothing has
25 been decided as to the money-mandating duty under that
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1 act.
2 THE COURT: Well, I'd indicated that listing
3 on the 1886 role and the 1889 supplement was
4 presumptive evidence.
5 MS. SCHWARZ: Yes. And that's what we agree
6 with, but Plaintiffs have submitted the additional
7 materials, the 1917 Scott List, things like that.
8 The second issue is that Department of
9 Interior has not fallen by the wayside. They have
10 begun going through the materials. As Mr. Kaardal
11 submitted in his original declaration back in March
12 when we were dealing with stipulations, his office had
13 a research firm that was staffed with many people, and
14 it took them eight years to put this documentation
15 together.
16 It isn't a low standard. The government
17 can't just accept documents when the government is
18 going to pay money out of the public fisc. It has a
19 responsibility to ensure that what money from the
20 public fisc is going for is indeed appropriate. So I
21 would assert to the Court that it's not a low
22 standard. The government just can't look at two birth
23 certificates, but it has to indeed make sure that
24 those two birth certificates are indeed what they are
25 because of --
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1 THE COURT: In a way -- I'm sorry, go ahead.
2 MS. SCHWARZ: Because of our responsibility
3 to the public.
4 THE COURT: Well, the Court has a
5 responsibility as well. This set of Appropriation
6 Acts set a scheme in place, a system in place that, as
7 it turns out over the generations, it's more and more
8 difficult to handle. The Department's office in the
9 Minneapolis-St. Paul area had to cope with it until
10 1980, and they presumably had an idea as to who was
11 whom in the circumstances. So that's some help.
12 But you didn't draw up the terms of the
13 Appropriation Acts, neither did the Court, neither did
14 the Plaintiffs. We're all coping with it and doing
15 the best we can with the situation we're given, and
16 we'll continue to do that.
17 I do have a couple of questions, but they
18 mainly go to the merits of the various lists, and I
19 think we'll defer those until the subsequent
20 arguments. Anything further?
21 MS. SCHWARZ: Just that in terms of Mr.
22 Edwards' request that we be more specific with more
23 people, time, documentation, I think that can come
24 once the legal issues are narrowed and decided in this
25 Court.
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1 I appreciate everything that Plaintiffs have
2 done in meeting deadlines. We have likewise strived
3 to meet our deadlines. We've all worked very hard on
4 this case. We've considered the materials, we've
5 looked at it, many conference calls, many meetings. I
6 understand that it's an arduous task, but it's also
7 been an arduous task on behalf of the United States,
8 so any indication that somehow the United States has
9 not lived up to its duty in meeting the Court's
10 deadlines and addressing the issues, we would
11 respectfully submit that we have worked just as hard
12 to try to bring this case to a conclusion.
13 THE COURT: All right. Well, we have all
14 done that. The Court tried to set a schedule, we
15 don't call them deadlines, but a schedule after
16 consultation with the parties so that it would be
17 realistic and could be met. We're going to do the
18 best we can.
19 MS. SCHWARZ: Thank you, Your Honor.
20 THE COURT: All right. Let's find out, Mr.
21 Kaardal, do you have anything more on this topic?
22 MR. KAARDAL: No, Your Honor.
23 THE COURT: No? Mr. Edwards? Mr. Montana?
24 MR. EDWARDS: No, Your Honor.
25 THE COURT: Okay, fine.
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1 Now, if we could, let's go to the motion to
2 dismiss. And that will bring you back, Ms. Schwarz,
3 to the podium, and as the Court understands it, that
4 primarily deals with the effect of the 1863 Act, but
5 you have other issues you'd care to address, is that
6 correct?
7 MS. SCHWARZ: Yes, I do.
8 THE COURT: All right.
9 MS. SCHWARZ: Thank you, Your Honor.
10 Again, as this Court left it in January, one
11 of the issues to be decided was the money-mandating,
12 the potential impact of the February 16, 1863 Act and
13 the March 3, 1863 Act. Plaintiffs are going to in
14 their complaint assert claims based upon those two
15 Acts. In addition to those two Acts, Plaintiffs have
16 also amended their complaints to assert a violation of
17 the Indian Trade and Nonintercourse Act, and also some
18 Plaintiffs have alleged that there has been a Fifth
19 Amendment taking in relation to land that was not
20 granted under the February 16, 1863 Act.
21 THE COURT: We're going to take this portion
22 of the hearing as both on your motion to dismiss and
23 then the motions to amend actually. As the Court
24 understands it, it's the Plaintiff's contention that
25 12 sections were set aside as a consequence of the
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1 1863 Act and then several years later they were made
2 publicly available for sale and were sold. There was
3 a request if I have the moving papers correctly in
4 mind, a request that Bishop Whipple be helpful in
5 identifying 12 other sections that might be
6 substituted, and that was never done. Do I understand
7 that correctly?
8 MS. SCHWARZ: It's my understanding from
9 reading it that yes, that there is land that from the
10 -- there was the -- it's easier to go back in time to
11 the original 1858 Treaty. As the Court is aware, in
12 1858 the Mdewakanton Treaty was entered into between
13 the U.S. and these two Sioux bands where the U.S.
14 agreed to aside the southern portion of the Sioux
15 reservation lands along the Minnesota River. That was
16 described in the August 15, 1851 Treaty.
17 In 1862, as the Court is aware, there was
18 the Sioux uprising. As a result of that, in February
19 of 1863 Congress passed what's commonly known as the
20 Forfeiture Act in which it forfeited annuities and
21 claims to these Indians and also forfeited all lands
22 and rights of occupancy.
23 But then there's Section 9 of the February
24 Act which dealt with the Secretary was authorized to
25 set a part of the public lands not otherwise
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1 appropriated 80 acres and severalty to each of the
2 individual before-named bands who exerted themselves
3 in rescuing the Whites from the Lake Massacre, and
4 then three weeks later the March 3 Act was passed that
5 said it shall be lawful for the Secretary to locate
6 any emeritus,individual Indian of said bands who
7 exerted themselves to save the lives of Whites in the
8 Lake Massacre upon said lands in which the
9 improvements are situated -- to the extent of 80
10 acres.
11 THE COURT: Well, we dealt with that in the
12 immediately prior opinion. It was the Court's view
13 that what Congress provided was not a substitute in
14 the March 1863 Act but rather an alternative. You
15 just couldn't take advantage of both. You couldn't
16 get 160 acres. You had to get 80 acres under one or
17 80 acres under the other. Now I know the government
18 didn't exactly agree with that.
19 MS. SCHWARZ: Right. And then as part of
20 that March act it also provided for the sale of the
21 former Sioux reservation lands. Withheld from that
22 sale were 12 sections that were identified by Reverend
23 Hinman, who had been an Episcopal reverend who had
24 worked with the bands. Those 12 sections were never
25 assigned, they were never allotted, they were never
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1 granted title to anyone.
2 THE COURT: But they were sold.
3 MS. SCHWARZ: They were sold. And then at
4 that point, in 1865 --
5 THE COURT: Well, part of the question, and
6 I'm sure you'll get to it, is whether that sale was a
7 legal sale, but let's continue with the progression.
8 MS. SCHWARZ: Then in 1865 the Commissioner
9 of Indian Affairs, so then in 1865 Reverend Hinman
10 asked for different land to be set aside pursuant to
11 the Acts in 1865. Those plans were rejected because
12 of the political and military climate because of the
13 hostilities. The settlers in Minnesota filed
14 petitions threatening to expel any of the Sioux who
15 tried to resettle on those lands.
16 So in 1865 the Commissioner of Indian
17 Affairs proposed that all the Minnesota Sioux be
18 consolidated at the Santee Reservation. He issued a
19 report in 1866 setting out a plan for how that
20 reservation would happen and could it be the Sioux at
21 Crow Creek, the Sioux at Davenport and then the
22 Rockintons (ph) of Minnesota. He outlined a proposal
23 for funding which also included money that had been
24 appropriated in 1865. That was the $7500 that went to
25 John Other Day and 35 individuals who had exerted
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1 themselves on behalf of the settlers in the 1862
2 uprising.
3 Then in 1866 the Secretary of Interior
4 presented the plan to President Johnson, who withdrew
5 those lands for the Santee Reservation. It was
6 committed to Reverend Hinman, who at that point
7 supported the move to Nebraska because he felt that
8 the hostilities there, it would not be possible to
9 locate those, what has become known in this case,
10 those Loyal Sioux on those lands. And then he left
11 with that delegation of people to go to Santee Sioux.
12 But then as the Court and the parties are aware, they
13 were supposed to receive allotments at Santee, but in
14 1869 the land still had not been allotted, so Chief
15 Good Thunder had moved people to Flandreau where they
16 participated in the Indian Homesteading Act.
17 And then at that point the Indian
18 Homesteading Act in Flandreau was much more lenient in
19 terms of the years that someone had to hold onto the
20 land before they could sell it, before they had
21 possession whereas the allotments that were eventually
22 issued at Flandreau had a 25-year restriction on them.
23 So the individuals who had been at Flandreau only had
24 to maintain their homesteads for five years before
25 they could sell. And then they sold those and
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1 eventually relocated back to the lands in Minnesota,
2 so those lands that eventually were purchased with the
3 Appropriations Act.
4 So the effect of all that is that the 1862
5 and the identification of 12 potential sections that
6 could be assigned to people and then withdrawn and
7 sold was that it was an impossibility at that point in
8 time that those lands, the Secretary could do that.
9 The Secretary made that determination based on the
10 information of Reverend Hinman, who had been kind of
11 representing that group of people, agreed. So, in
12 terms of the actual sale of those lands, we would say
13 that that was a valid legal sale, especially pursuant
14 to the March Act where the Secretary was authorized to
15 sell those former reservation lands.
16 THE COURT: All right. So you're saying
17 there actually is no claim based on the two 1863 Acts.
18 There could be no claim. It was overtaken by events
19 basically.
20 MS. SCHWARZ: In addition to that, there is
21 no claim because we would say that those acts, based
22 on the Federal Circuit opinion, they create no money
23 mandating duty. There's no expectation. They are
24 primitive in nature.
25 THE COURT: Well, that was my question, one
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1 of the questions.
2 MS. SCHWARZ: The Secretary was authorized
3 to do something, he looked into doing it, was not able
4 to do it with those lands, and I would even suggest
5 that the Santee Sioux Reservation in Nebraska was kind
6 of his response to that. But as to those original
7 acts, they were permissive in scope.
8 THE COURT: One of the problems with the
9 Nebraska resettlement was that the Loyal Mdewakanton
10 had necessarily severed their tribal relations, and
11 that caused a problem for them with the Santee, right?
12 MS. SCHWARZ: That is correct, but the
13 definition of who qualified, of who these 1863 Acts
14 were drafted to, are very different from the
15 Appropriations Act, and that's what we have to focus
16 on is the February and the March 1863 Acts were not
17 directed toward the Loyal Mdewakanton who had severed
18 their tribal relations. Rather they were directed
19 toward individuals who belonged to all four bands who
20 had exerted themselves, they were basically soldiers
21 for the U.S. They kind of fought against their
22 brother. They harbored settlers, they assisted them.
23 There was a very high standard of what these
24 individuals did. It wasn't directed to a specific
25 band. It wasn't directed to all the Sioux. It was
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1 directed to these individuals.
2 So to say that whatever happened and how the
3 Department of Interior had relations with the Loyal
4 Mdewakantons can't be made on the basis of these Acts
5 because these Acts weren't even directed to the Loyal
6 Mdewakanton. The Loyal Mdewakanton, in going through
7 the congressional record and the legislative history
8 that we've attached to the general appendix, the Loyal
9 Mdewakanton were not what was the intended people for
10 these Acts. It was all the bands, it was the
11 Sisseton, the Wahpeton, the Wahpakoota and the
12 Mdewakanton. It was individuals. And there was a
13 debate as to how many individuals did this cover? Was
14 it six? Was it 20? I believe the highest number was
15 it was 60 individuals who had exerted themselves.
16 THE COURT: So you're saying the Indian
17 scouts, for example, would qualify under the 1863 Act.
18 MS. SCHWARZ: No, I would not say that.
19 THE COURT: They would not. Okay.
20 MS. SCHWARZ: You have to go by the
21 definition and it would be an individual who had
22 exerted themselves to the extent that someone could
23 have scouted, but I don't know --
24 THE COURT: You're saying those categories
25 of people are arguably different. They might overlap,
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1 but they're different.
2 MS. SCHWARZ: Yes. A scout I don't believe
3 is a presumption of -- a scout may have been someone
4 that qualified, but I don't think it's a definitive
5 qualification.
6 THE COURT: What do you do about the
7 Intercourse Act? You say basically it doesn't apply
8 to the United States, it applies to everybody else.
9 MS. SCHWARZ: The Supreme Court in Tuscarora
10 has held that it does not apply against a sovereign in
11 section 177. The purpose of the Act was a
12 codification of --
13 THE COURT: Really it was directed to the
14 states, but in any event --
15 MS. SCHWARZ: Codified in common law
16 concerning aboriginal title, the Federal Power
17 Commission held at page 120, Section 177 is not
18 applicable to the sovereign United States. And too we
19 would assert that it's not applicable to the sovereign
20 United States. It simply doesn't grant this Court
21 jurisdiction to hear that claim. And then to the
22 extent that the Court feels that it does apply, we
23 would allege that the qualifications of the Act, you
24 know, a tribe, aboriginal land, a trust relationship,
25 those have not been applicable.
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1 THE COURT: You've briefed and Plaintiffs
2 have briefed the Bear case in Nebraska.
3 MS. SCHWARZ: Yes. Yes.
4 THE COURT: Which is an interesting case
5 because there's a mix of things going on in that
6 particular case.
7 MS. SCHWARZ: There are two issues that
8 happened with the Bear case. There was kind of two
9 points of contention that were made. One was whether
10 the Army Corps can condemn land without congressional
11 authority and then whether the attorney who had been
12 appointed by the BIA to represent the tribe at the
13 negotiations, the BIA attorney, was he strictly for
14 the tribe and therefore was not a representative of
15 the government. So that second part of the case isn't
16 applicable to the proceedings here, especially the
17 Court there held that the attorney who is there in his
18 capacity to represent the tribe couldn't also stand
19 for the government.
20 But as to the first part that was asserted,
21 all it held is that they couldn't condemn this land
22 without congressional authority because of the treaty.
23 Here we're not dealing with the treaty. Here we're
24 not dealing with land condemnation.
25 THE COURT: Right.
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1 MS. SCHWARZ: And we're not dealing with
2 aboriginal land under a treaty that was condemned.
3 THE COURT: As the Court reads the first
4 part of that, the treaty basically has the same status
5 if you will in our law, that is, our country's law, as
6 a statute. So there was no authorization of an
7 executive department to abrogate any of the
8 obligations. It had to be by statute.
9 MS. SCHWARZ: Correct.
10 THE COURT: Well, you could have had a
11 statute that authorized an executive action, but that
12 didn't happen either. That's what that part of the
13 case was all about. But in any event, I'm more
14 interested in the second part of the case. Okay.
15 MS. SCHWARZ: Because we have fully briefed
16 and we rely on our brief for the assertion that
17 Plaintiffs have not proven that they're a tribe with
18 jurisdiction, especially under Nana Lopez.
19 THE COURT: I'm sorry, the what?
20 MS. SCHWARZ: Nana Lopez case, which is the
21 Oklahoma case. A tribe has to be a plaintiff.
22 Plaintiffs have filed this group, although the Court
23 has held that they're an identifiable group of Indians
24 that are not before this Court. Under purposes of the
25 Indian Trade and Nonintercourse Act as a tribe, the
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1 Supreme Court basically set out parameters of what a
2 tribe is in the Montoya decision, which other Courts
3 have subsequently used to analyze. It isn't that the
4 government is suddenly putting these prescriptions on
5 Plaintiffs of what they have to prove to be a tribe,
6 the Supreme Court has laid out that at the minimum you
7 need a community with a political body and that that
8 group has to be representatives of Plaintiff, and
9 Plaintiffs here filed a suit on behalf of themselves
10 as individuals. No Plaintiffs have raised the
11 existence of the Minnesota Mdewakanton Dakota Oyate,
12 but they're not a Plaintiff to this group. That's an
13 association. How it represented these people,
14 Plaintiffs I don't believe have met the burden of
15 proof that it does serve as the political
16 representative of these people as a tribe.
17 I'm not asserting that they have to have BIA
18 federal recognition because under the Nonintercourse
19 Act cases have held that you don't have to have
20 federal recognition, that that is very helpful to a
21 Court to determine tribal status, but it's not an
22 ultimate factor that's required. But even absent a
23 federal recognition for this group as a tribe,
24 Plaintiffs simply haven't met the burden in proving
25 that they are a tribe. And more importantly, they
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1 haven't filed this case as a tribe.
2 When they filed the case they made a
3 litigation decision of how they would represent
4 themselves and that's what they have done. Now eight
5 years later to suddenly assert that they're a tribe
6 has come as quite a surprise.
7 THE COURT: Okay.
8 MS. SCHWARZ: And then additionally, we're
9 not dealing with aboriginal lands. Aboriginal lands
10 are basically tenants at will. The sovereign has the
11 right to extinguish those lands.
12 THE COURT: Well, that goes back to the 1851
13 and 1858 treaties.
14 MS. SCHWARZ: Under those, a reservation, if
15 a lower state was created, by virtue of the February
16 1863 Act, all those lands are forfeited. Congress
17 extinguished the rights of those lands, and the lands
18 that they're arguing today that they have a right to
19 are not reservation lands. They're lands that were
20 never allocated that could have been picked up in
21 1863, but they were not aboriginal lands that they had
22 been on since time immemorial because those rights had
23 been extinguished and forfeited. Additionally --
24 THE COURT: But there's no question that
25 they were the aboriginal lands reaching down into Iowa
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1 and I guess a little into Wisconsin, but in any event.
2 MS. SCHWARZ: It was Wisconsin, Minnesota
3 and Iowa.
4 THE COURT: Right.
5 MS. SCHWARZ: And then the 1851 Treaty ceded
6 the lands except for lands that were located around
7 the Minnesota River and then in 1868 passed it down to
8 the lower portion of the Minnesota River. So it's not
9 a reflection of what had been the typical lands.
10 Under the trust relationship, the 1863 Acts,
11 either the February or the March 1863 Act, they
12 established no trust between the United States and the
13 group of individuals who were identified in the Act.
14 Most importantly, there's no trust reps. To have a
15 trust, you need a beneficiary. The trust has to hold
16 something in trust as the trust corpus. There's no
17 trust corpus.
18 It's just like the Shoshone-Bannock case
19 where they were -- that's the Arizona case where they
20 were involved in land that was supposed to be set
21 aside for a school, but it never was, and the Court
22 held that you can't have a trust because the rep
23 wasn't there.
24 Even the Nicholson case where -- not the
25 Nicholson case, but Judge Nicholson stated that where
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1 there is no rep you can't have a trust, but even just
2 taking all that aside, just looking at the language of
3 the statute, which is even less I guess drafted than
4 the Appropriations Act that they were dealing with,
5 there's no fiduciary relationship that's been
6 established, especially between the U.S. and these
7 current Plaintiffs. They've been alleging rights as
8 the Loyal Mdewakanton or 1886 Mdewakanton or the Loyal
9 Sioux. Those acts provided permissive authority for
10 the Secretary of Interior to set aside land for
11 individuals of four bands who had exerted themselves,
12 they had done something. But even then it was only
13 permissive. No land was ever set aside and allocated
14 to them. No title was ever passed. No assignment
15 system was ever entered into. No fiduciary duty was
16 ever intended. There was never a trust relationship
17 that was established.
18 And even to the extent you qualify them as
19 1886 lands or if you try to rework them as 1863 lands,
20 in applying the law of the cases that the Federal
21 Circuit has held, Plaintiffs are never given any
22 vested interest in those lands, especially that were
23 purchased with the Appropriations Act and that no
24 trust relationship was ever created between the U.S.
25 and this group.
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1 And then for the purposes of our motion to
2 dismiss in terms of how it impacts the takings
3 argument, we would direct the Court's attention to I
4 believe it's Voisson (ph). I know the attorney who
5 worked on the case, and she could never decide if it
6 was Voisson or Voisson because it's a French name.
7 But that case is very instrumental I believe in the
8 statute of limitations argument as to the takings
9 case. Plaintiffs have maintained that there was
10 continuous authority, that there was accruals or that
11 the claim never accrued. However, no takings claim
12 accrued on the date the United States takes private
13 property interest for public use without just
14 compensation.
15 In Voisson, the Court held that that case
16 dealt with Louisiana's Raft Island which is off the
17 coast of Louisiana where the French sovereign had
18 granted the land rights to an individual and then
19 after the sale of the Louisiana Purchase his rights
20 were still recognized. But when the land was surveyed
21 they forgot to include his claim to that island and
22 people were allowed, the government began to issue
23 land patents to people other than Mr. Voisson. And
24 there the Court held that despite Congress's
25 confirmation and Mr. Voisson's claim based on the
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1 previous treaty and the Louisiana Purchase, that the
2 issuance of the patents represented the government's
3 conveyance of title, a portion of that island to other
4 persons and that action was clearly inconsistent with
5 Plaintiff's claim of ownership in the property. So
6 the beginning of the issuance of the patents was
7 sufficient to put Plaintiffs on notice of their claim
8 against the United States. It wasn't when the last
9 patent was issued, it wasn't when they raised concerns
10 in 1850. It was when that first patent was issued,
11 when someone else laid claim to the property that
12 Plaintiffs laid claim to, that's when the right
13 accrued. And for a takings claim, you look at the
14 time of the Defendant's act, not upon the time at
15 which the consequences of the Act become most painful.
16 And recently, it wasn't a takings case, but
17 there's the recent San Carlos Apache opinion that the
18 Federal Circuit just issued.
19 THE COURT: Now I understand Voisson, but
20 what is this other case?
21 MS. SCHWARZ: We cited it in our reply
22 brief, San Carlos Apache v. United States. It doesn't
23 have an F.3d site yet. It's 2011 Westlaw 1532148. It
24 came down on April 25, 2011. That deals with
25 plaintiffs have alleged that they're trust
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1 beneficiaries, so until such time that the trust would
2 be repudiated, the alleged trust and their takings
3 claim was repudiated that their claim doesn't -- the
4 statute of limitations hasn't begun to run. But the
5 Federal Circuit said in this case that the beneficiary
6 may bring his action as soon as he learns that the
7 trustee has failed to fulfill his responsibilities.
8 It is often the case, however, that the
9 trustee can bring his fiduciary responsibilities of
10 managing the trust property without convincing the
11 beneficiaries that a breach has occurred, therefore
12 causing the statute of limitations to not commence to
13 run against another beneficiary until a final
14 accounting has occurred that establishes the deficit
15 in the trust. Such the Shoshone language that
16 Plaintiffs have cited in terms of the statute of
17 limitations not being able to run. However, the
18 Shoshone, as the Federal Circuit recognized, involved
19 a situation where the trustee allegedly breached his
20 duty by mismanaging trust funds without placing the
21 beneficiary on notice that a breach had occurred.
22 In those cases a final accounting is
23 necessary to put the tribe on notice. But in this
24 case, the Court in San Carlos Apache found that a
25 final accounting was unnecessary to put the tribe on
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1 notice of the accrual of its claim. There was a
2 decree that had been entered, and based on the plain
3 terms of the decree, those terms were objectively
4 sufficient to notify the tribe of the alleged breach.
5 And so therefore, the claim ran at first
6 accrual in the situation we have before the Court
7 today when land wasn't set aside and allocated,
8 whether by an allotment system, fee simple or held in
9 trust. Back then Plaintiffs were aware that the 80
10 acres for those individuals is not being put aside.
11 Reverend Hinman took people to Nebraska based on the
12 fact that land wasn't going to be allocated. Land
13 permits began to issue. That land was sold at public
14 sale.
15 So to the extent people began to enter that
16 land, that's when Plaintiffs' rights to that land,
17 that's when the first injury was known. It wasn't
18 hidden by the government. The government didn't
19 secretly sell. Public land sales are by virtue made
20 public. So there is nothing that was hidden from any
21 individuals at that time.
22 In trying to figure out the motion to
23 dismiss and what would --
24 THE COURT: Well, you'll get several other
25 chances, so I wouldn't fret about that too much.
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1 I think what we might do now is hear Mr.
2 Kaardal and Mr. Montana and others on the motion to
3 dismiss.
4 MS. SCHWARZ: Okay. Thank you, Your Honor.
5 THE COURT: Okay. Thank you.
6 Mr. Kaardal?
7 MR. KAARDAL: Thank you, Your Honor.
8 As the Court is aware, the United States in
9 Tohono O'odham Nation, April 26, the court said this
10 Court is the only judicial forum for significant non
11 tort claims against the government. I think the U.S.
12 Supreme Court did that because this is a good and
13 proper place to bring these complex Native American
14 cases. The Court actually has jurisdiction to do that
15 in Section 1505

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1 I think what we might do now is hear Mr.
2 Kaardal and Mr. Montana and others on the motion to
3 dismiss.
4 MS. SCHWARZ: Okay. Thank you, Your Honor.
5 THE COURT: Okay. Thank you.
6 Mr. Kaardal?
7 MR. KAARDAL: Thank you, Your Honor.
8 As the Court is aware, the United States in
9 Tohono O'odham Nation, April 26, the court said this
10 Court is the only judicial forum for significant non
11 tort claims against the government. I think the U.S.
12 Supreme Court did that because this is a good and
13 proper place to bring these complex Native American
14 cases. The Court actually has jurisdiction to do that
15 in Section 1505 of the Indian Tucker Act. And when
16 the Court addresses these kind of cases involving
17 statutory interpretation there are well accepted
18 canons of statutory interpretation and the Court is
19 aware of those. Also I want to mention that those
20 particularly apply with respect to the termination of
21 reservations because of the extinguishment of tribal
22 rights. This ends up being in a way a question of
23 whether the 1863 Acts were followed by Interior in
24 properly terminating the reservation.
25 Much of the government's attention has been
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1 spent on events between 1863 and 1870. However, it's
2 a fact in the supplemental appendix that the sale of
3 the reservation occurred between 1863 and 2002, and
4 there still may be part of the former Sioux
5 reservation I've not been able to identify. Those are
6 important facts because the law has not been repealed.
7 Despite what the United States has argued, the fact
8 that there might have been White hostility, there
9 might have been military generals saying don't do it,
10 there might have been all this advice Interior was
11 getting, we still have a law and prejudice is not a
12 reason not to follow the law. It's not an excuse.
13 And the defense of impossibility, it was impossible
14 for us to get it done, that's not recognized in the
15 law either, nor is there a factual basis for that in
16 the record today.
17 So what we have is a law of the 1863 Acts,
18 and after 1863, which the Court has recognized in the
19 previous opinion, Congress had recognized that the
20 friendly Sioux had not breached the 1858 Treaty, so
21 they continued the land grant. This is the 80 acres
22 we're talking about.
23 In 1865 in the Secretary of Interior's own
24 words, the 1869 memo, the land had been set aside, the
25 12 sections, which were identified in Interior
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1 correspondence, some in Redwood County, some in
2 Redville County and one section in Sibley County.
3 That decision was reversed in 1869 as the Court
4 recognized and then Whipple was sent to look for more.
5 I want to stop there and then go to the motion to
6 dismiss.
7 One of the claims, there is an issue with
8 the money-mandating duty, and so once we have the land
9 set aside under the 1863 Act, the Rankings History
10 Act, then we just have shall's. It says the land so
11 set apart .... shall not be aliened or devised except
12 by consent of the President of the United States, the
13 shall be inheritatives of said Indians and their
14 inheritants forever. Those are shall's, not
15 authorized. And I think that is very important
16 because under the Indian Nonintercourse Act, and I'll
17 read it slowly, "No purchase, grant, lease or other
18 conveyance of lands or of any title or claim thereto
19 from any Indian nation or tribe of Indians shall be of
20 any validity in law or equity unless the same be made
21 by treaty or convention entered into pursuant to the
22 Constitution."
23 So this is an older law, but the point is
24 it's been interpreted time and time again by the
25 Federal Courts to apply to sales of Indian land. Now
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1 I say claim thereto because that is very broad. Every
2 word of this should be given meaning. So if there are
3 lands conveyed that Indians have title or claim
4 thereto, I think the United States arguing that it was
5 discretionary after the lands were set apart when you
6 have two shall's and you have the Indian
7 Nonintercourse Act, the argument basically becomes if
8 Interior doesn't fulfill its statutory obligations,
9 then the land cedes to the state and they can sell the
10 land and distribute the proceeds. And so that I think
11 is where there is no discretion with respect to the 12
12 sections that were set aside.
13 And then furthermore, in answer to your
14 question, Your Honor, about whether the scouts list
15 would be the type of people who would have received
16 the land under the 1863 Act, that cuts right to the
17 quick on the meaning of authorization. The response
18 had to be no, that it was, by Ms. Schwarz. The
19 response was no, we'd have to do it according to
20 statutory language. But the response was the language
21 of obligation. If you see in a trust document
22 language like that, you're authorized to give the
23 money to the beneficiary when he graduates from
24 college, the question of the Court would be well, can
25 you give it to a high school graduate? No. We'd be
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1 obligated not to do that.
2 So when you have the beneficiary identified
3 by a set of circumstances it informs what the word
4 authorization means in the February 1863 Act and
5 that's a plain meaning reading of that.
6 THE COURT: Well, you and your colleagues
7 essentially argued that the 1863 Act in effect barred
8 Interior on its own from selling the lands. It took
9 presidential authorization and none was ever given.
10 Am I understanding your argument correctly?
11 MR. KAARDAL: Right. Once the lands were
12 set aside it triggered this other language.
13 Now I do need to point out that if you're
14 entitled to a fraction of the land like the friendly
15 Sioux would have been, you can get the land at the
16 beginning or you can get the land at the end. And so
17 let's say the 12 sections were described as 10,000
18 acres, if you get the first 10,000 of the 800,000
19 acres sold, or you get the last 10,000 of the 800,000
20 acres sold, and here the last sale was in 2002 that
21 we've documented. So that's unfortunate because it
22 says here that the land should be set apart and
23 distributed and it's fair to interpret it if the
24 friendly Sioux have died then the heirs be given it.
25 Why would that land escheat to the state, particularly
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1 in light of the Indian Nonintercourse Act? I think
2 it's very important to understand that the Indian
3 Nonintercourse Act and the 1863 Acts have to be
4 interpreted together because we tried to effect all
5 the statutes. This has been a consistent problem in
6 this case for the government is they argue that a
7 majority, most, all but one statute should be
8 followed. But the best course is to give legal effect
9 to all the statutes.
10 THE COURT: But you're essentially arguing
11 that it was a condition of the statute that
12 presidential action had to occur in arrear for any
13 disposition of land. That seems to be the crux of
14 your argument rather than the Nonintercourse Act.
15 MR. KAARDAL: Yes. But I think that they
16 are two separate arguments. I think that one requires
17 presidential consent for lands that are set aside.
18 THE COURT: At least some action by the
19 President.
20 MR. KAARDAL: Right. And in Tuscararo and
21 in Winnebago and Bear we see in the INIA cases
22 involving government-sponsored transactions. The
23 Courts look for congressional consent by statute. So
24 in Tuscararo we have the Federal Power Act, that's the
25 congressional act authorizing. Here the government
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1 has not come up with a statute other than the 1863
2 Acts. The problem with the 1863 Acts is they have
3 this exception so that you have the trust and the
4 annuities being forfeit, but you have an exception
5 right in those Acts. So it's very difficult for the
6 government to argue, and they really can't argue and
7 they haven't, that those Acts which required us to set
8 aside the land for the friendly Sioux also gave us
9 permission to sell that land that was set aside for
10 the friendly Sioux. So under the INIA, you would look
11 for congressional authorization, and under the 1863
12 Acts you would look for the presidential consent.
13 Now I think that Bear is important because
14 in Bear the Interior can't argue that Indian consent
15 or submission to what Interior has done is a
16 substitute for congressional consent. And then
17 Winnebago is important because there the Corps of
18 Engineers was stopped from doing a project because of
19 the Indian Nonintercourse Act by the Eighth Circuit.
20 So if the law, INIA, the Indian
21 Nonintercourse Act applies to the Corps of Engineers,
22 then I would submit to the Court it also applies to
23 the Department of Interior. They're both agencies of
24 one federal government, and although yes, some of the
25 cases refer to the word sovereign United States, a
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1 little further in the Constitution you come to, it's
2 broken in three branches. The executive departments
3 have to follow the law, and here the laws we're
4 referring to haven't been followed. The reservation
5 was sold over this long period of time, and the laws
6 still haven't been followed. And so I think that's
7 what we have.
8 Now, if you look at the administrative
9 history, it's still very strange that in 1886 or when
10 the list was identified in 1886, the 264 including the
11 89 supplement, and the 1886 lands were being
12 purchased, that there were still tens of thousands of
13 acres available to be assigned. They hadn't yet been
14 sold. So why did that happen? I don't know, but
15 regardless, it was a substitute. At the time people
16 were pleading that they were entitled to 80 acres in
17 Minnesota too, and they didn't receive it. So the
18 idea that it was impossible to give the 1886
19 Mdewakanton their 80 acres isn't true.
20 Now the reason why I believe the severance
21 of tribal relations is there in part, echoing the
22 March 1863 provision that you can't get more than 80
23 acres, is they didn't want people to get 80 acres at
24 Santee, eventually at Flandreau or lower Sioux I guess
25 or Prairie Island and Shakopee. They just wanted them
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1 to get one land assignment.
2 So what happened then over a 90-year period
3 is that my clients' ancestors received the land
4 assignments and these trust funds were kept for them,
5 and the Federal Circuit opinion recognized this idea
6 of lineal descent under the Appropriation Acts and the
7 Court recognized it in the December opinion. And
8 after 1980 those things stopped. The 1980 Act was
9 limited to changing the title to the land which had
10 been used as a substitute.
11 And so my clients' rights arise from the
12 fact they're now receiving nothing even though they're
13 beneficiaries under the Appropriation Acts and as I've
14 argued in the briefs successors in interest to the
15 1863 Act claims.
16 The reason why the courts I believe narrowed
17 the Indian Nonintercourse Act by these elements is
18 because it is true individual Indians can't bring
19 forward this claim as a tribal requirement. As the
20 government recognizes, Passamaquoddy and Narragansett
21 were instances where they were landless or virtually
22 landless. They were not recognized by Interior, they
23 came forward with ancient land claims and identified
24 themselves through birth certificates.
25 Here that would have been difficult to do at
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1 the beginning of the case because at the beginning of
2 the case, it was understood by all my clients based on
3 reading the communities' constitutions and the fact
4 that every time they went to Interior since 1980 they
5 were directed to go to the communities to get land,
6 the fact that they did not receive the governmental
7 accounting associated with the 1980 Trust Funds which
8 would have identified them as trust beneficiaries, as
9 a group of trust beneficiaries, this claim arose, it
10 was inherently a NOHO until the Court's decision.
11 When the Court in December said that the communities
12 are not based on indigenous relationships, then my
13 clients knew that the communities were not successors
14 of interest to the 1863 Act claims.
15 If you look, Your Honor, at the communities'
16 constitutions, the federal land assignment provisions
17 are still in there, so my clients were going to
18 Interior before the lawsuit saying we're entitled to
19 land, we're entitled to land assignments, we're
20 entitled to our substitute, and Interior was telling
21 them go to the communities to get land, we're not
22 going to give you land. Yet they had an obligation to
23 provide this acreage, the 12 sections or more, and
24 they didn't respond accordingly. And there is no
25 documents after the 1980 Act or before the 1980 Act
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1 analyzing the 1863 Act obligations.
2 I know the Court was generous before, after
3 the 1980 Act, allowing for Skidmore Deference in
4 interpreting what was to happen with these trust
5 funds. Here when the government doesn't have any
6 evidence of analyzing their post 1980 Act obligations
7 under the 1863 Act, I believe that Skidmore Deference
8 is not appropriate.
9 So we have a history, a 90-year history of
10 recognition of my clients as a group beneficiary for
11 trust benefits and land assignments. I think that on
12 its own would be sufficient to show a tribe. But we
13 have more. We have the Appropriation Acts themselves
14 describe a group beneficiary. So Interior is
15 suggesting that there should be another test beyond
16 what Congress has said. And the Federal Circuit and
17 this Court's opinion show a group beneficiary under
18 statutes entitled to land and money, and I think
19 that's sufficient for the Indian Nonintercourse Act.
20 With respect to any anthropological,
21 political, geographical and cultural tests, the birth
22 certificates themselves reflect the commonality of
23 living in the three communities. After all, all their
24 ancestors lived in the three communities. That's what
25 the list was for. That's where they got the land
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1 assignments. They're all connected. They all have
2 relatives there. If there were more land in the
3 beginning, more would have lived there, but they said
4 that the substitute was accepted.
5 An example would be Sheldon Peters
6 Wolfchild. He's Indian. He's the lead Plaintiff in
7 this case. He helped found Minnesota Mdewakanton
8 Dakota Oyate. He helped collect the birth
9 certificates. He was elected president of Lower Sioux
10 Indian Community. And he is politically,
11 anthropologically, geographically and culturally
12 Indian.
13 So where is the evidence that they aren't
14 Indians? This has been the dispute from the beginning
15 of the case, Mr. Longstreth, because he was legally
16 required to do it I think in this case, was to make
17 this claim that they're not Indians, Your Honor. And
18 now we see this in the Rule 56(d) motion, are they
19 really Indians, Your Honor? Well, Congress has
20 identified them as Indians, and so they're Indians by
21 lineal descent.
22 We also have the Lower Sioux Tribal Court
23 decision where a lineal descendant was removed from
24 membership at Lower Sioux where Judge Rasmussen said
25 you're still Minnesota Mdewakanton and you can go to
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1 the government and claim your federal rights that way.
2 So even the communities recognize that the Minnesota
3 Mdewakanton have rights as Minnesota Mdewakanton.
4 Regarding the trust relationship not being
5 terminated, there we have a lot of evidence through
6 the Court's opinion of 90 years of fiduciary
7 relationships and obligations and again after 1980
8 Interior has denied any obligations under the 1863
9 Acts, but we suggest that they exist.
10 On the issue of tribal land, I want to
11 mention a couple things. It doesn't make any sense
12 that the Indian Nonintercourse Act only applies to
13 aboriginal lands. It's true that some of the landmark
14 cases involved aboriginal lands, but if the sovereign,
15 as in the 1863 Acts, says these lands are going to be
16 set aside for a group of friendly Sioux, the plural is
17 used, and their heirs forever. So if it's set aside
18 it's better than aboriginal land. Under Johnson v.
19 MacIntosh with the discovery doctrine, the sovereign
20 on its title, "subject to the right of occupancy", but
21 the sovereign says you're going to get more than the
22 right of occupancy, you're going to get title, well,
23 of course that applies. The INIA language doesn't
24 make any distinction between land guaranteed by an
25 implicit right of occupancy versus an express
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1 congressional statute awarding title and other rights.
2 Your Honor, on those points I'm complete,
3 but the statute of limitations seem to run to the
4 Court's jurisdiction. Would you want to hear those
5 now or later?
6 THE COURT: I'd like to hear those now
7 because in this Court at least 2501 is jurisdictional
8 as the Supreme Court has said.
9 MR. KAARDAL: Thank you, Your Honor.
10 As a first impression, as a good example of
11 the discretionary, we have a shall shall, and that is
12 as the Court is well aware, 2501 says you have to file
13 within six years. 1505 was passed afterwards. It
14 says the United States Court of Federal Claims shall
15 have jurisdiction of any claim against the United
16 States accruing after August 13, 1946. Now we're not
17 making that argument. I think it's true the Court
18 will look for a narrower basis than that. But you
19 have a shall following a shall and I think the
20 intention of the Indian Tucker Act was to allow these
21 claims to be brought in this Court, not subject to
22 2501, and that's the way to reconcile them.
23 With respect to the other arguments, we have
24 a land sale in 2002, so under the 2501 it says that
25 the claim has to be brought within six years of when
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1 the claim first accrues. And I've cited a Federal
2 Circuit opinion saying that the claim first accrues
3 when the last government act fixing liability ends.
4 And so here under my theory, if you're entitled to a
5 fraction of the water in the beaker, the breach hasn't
6 ended until all the water is drained so you can't get
7 the water that you were entitled to.
8 So here the 2002 sale is within the six-year
9 statute of limitations. Then after the Doctrine of
10 Equitable Tolling was limited, there's been a doctrine
11 now of the Accrual Suspension Rule, and here it
12 couldn't fit any better because in 1980 the government
13 concealed the disbursements to the communities by not
14 providing my clients with an accounting. They did not
15 provide notice to each of my clients that the monies
16 had been distributed to the communities. If my
17 clients had received the proper accounting or actually
18 the check, they would have been aware of their rights
19 and they would have been able to bring this claim
20 earlier.
21 THE COURT: You don't have to worry about
22 the statute of limitations with respect to the funds
23 held in trust in the Treasury. What you do have to
24 worry about is the statute of limitations as you've
25 pointed out and have just argued respecting land.
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1 MR. KAARDAL: Correct. So with respect to
2 the second aspect of accrual suspension, we have the
3 inherent unknowability, and this is the successor in
4 interest question, and we were told time and time
5 again that the communities were the successor in
6 interest to these land claims. My clients would go
7 and ask Interior for land, and Interior would direct
8 them to the communities. This required a legal
9 construction by a court. This Court made a legal
10 construction that these communities are not based on
11 indigenous relationships, meaning that they could not
12 possibly be a tribal succession interest with friendly
13 Sioux land claims because they're not involved.
14 They're unrelated to those people whereas my clients
15 descend from the 86 group, which because of
16 administrative difficulty Interior had not yet
17 identified who the friendly Sioux were, so my clients
18 are natural successors in interest.
19 One might say well, that's a funny way to
20 look at it. Maybe there are some differences in the
21 two groups. But Interior never identified who the
22 friendly Sioux were, who out of this group became the
23 proxy, and that's a word used in the 1979 technical
24 report, for the friendly Sioux, and that's why they're
25 the natural successors in interest. The communities
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1 while they were full of lineal descendants could have
2 made that argument, but in December of 2010 this Court
3 foreclosed that argument by recognizing they're not
4 based on indigenous relationships.
5 THE COURT: Well, in part, substantial part
6 actually that was premised upon the recognition that
7 the Loyal Mdewakanton in significant part compromising
8 those communities had severed tribal relationships.
9 Your tribal argument has to cope with the severance.
10 MR. KAARDAL: The severance of tribal
11 relations is in the statute, that's true, but the
12 Indian Nonintercourse Act allows for basically group
13 claims regarding Indian title. And the statute, which
14 I read previously, "No purchase, grant, lease or other
15 conveyance of lands or of any title from any Indian
16 nation or tribe of Indians shall be of any validity".
17 So under this Indian Nonintercourse Act,
18 there has been a body of case law interpreting what
19 Indian nations or tribe means. So that would be the
20 case we'd refer to which would include Passamaquoddy
21 and Narragansett, and under those standards we meet
22 the requirements. So the severance of tribal
23 relations, as I suggested earlier, relates to the idea
24 that you wouldn't get 80 acres somewhere else.
25 With respect to the administrative history,
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1 this group, the 12 sections were purchased in more or
2 less one area, which suggested recognition by Interior
3 that they wanted to continue to live in community
4 which in fact occurred over 100 years, and they lived
5 in communities. So you have a group, granted they
6 didn't have the land that they believed they were
7 entitled to, but they never got it.
8 So I don't think the Court can on the
9 severance of tribal relations provision say that under
10 the Indian Nonintercourse Act my group of Native
11 Americans would meet the tribal requirement because
12 Passamaquoddy and Narragansett did. Those were New
13 England tribes. Those were ancient transactions. The
14 Narragansett, they had to grab for I think it was an
15 1880 resolution of the Rhode Island legislature about
16 who to negotiate with, and they found birth
17 certificates going back to that document.
18 So you have examples. So the fundamental
19 premise is, and I know this is incongruous, plenary
20 power on the part of the government and fiduciary
21 obligation, but when those land on the table and
22 Interior has not performed its obligations, the tribal
23 successor in interest shows up, they get the land.
24 Why? Because it's the right thing. Why should the
25 land rights escheat to the state?
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1 It's threading this needle that is the
2 obligation of the Court in this case. So it goes back
3 to they're still here today saying they can't identify
4 any friendly Sioux. Then when the Court said okay,
5 the scout list, well, we couldn't just accept that.
6 Well, that's an obligation.
7 So they failed to fulfill the obligation,
8 but the land is still there. I think that's what the
9 INIA is about, as George Washington, the first
10 President of the United States said, we're not here to
11 defraud you. The issue here is has the government
12 done this right? And can the Court do more justice?
13 I think here we have these arguments lining up that
14 they were. And you end up with more justice.
15 To finish, I want to finish with the Indian
16 Trust Accounting Statute. If the Court accepts the
17 theory that the 1886 lands were a substitute, under
18 the Indian Nonintercourse Act there is an entitlement
19 then to the proceeds as damages from the land and you
20 had two accounts set up to collect land from those
21 people who were allowing those allottees allowing
22 their land to be used for rent. The government would
23 come in and grab the rent and pull it into this
24 account and it would grab royalties as well.
25 So those same accounts could be used for the
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1 United States to get the rent from the trust vestors,
2 and that's the damages claim that we're seeking here.
3 So you have a problem in that these
4 accountings weren't properly done. Under the Indian
5 Trust Accounting Statute, under Shoshone, it says
6 losses to trust funds. I don't see how these
7 trespassers using the land and those rents are any
8 different than getting the rents from sand and gravel
9 contracts which were expressly allowed to qualify
10 under the Indian Trust Accounting Statute in Shoshone.
11 On the continuing claim doctrine we have
12 within the six year period, the 2002 sale of that land
13 that would trigger the continuing claim doctrine
14 further, the continuing claim doctrine, I cited cases,
15 2501 wasn't intended to prevent, to cause, to be an
16 excuse for the United States not to be held
17 accountable for violations of law. You can't earn a
18 right under 2501 to do a wrong. The government can't.
19 So here I don't think we need the triggering
20 event within the six-year period because just a
21 continuing obligation of the government, and I think
22 it was the intent of Congress to cut off with damages
23 but not to allow the United States to not be held
24 accountable for a continuing violation of law.
25 So the United States' position would be even
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1 though there's a continuing violation, we can't be
2 brought into the United States Court of Federal Claims
3 for damages because we started violating years ago and
4 you could have known it. But that isn't what Congress
5 intended because Congress's law was passed. So
6 Congress enacted a law that was to be followed by
7 Interior, passed a law that Interior can be
8 accountable for damages back six years, and now
9 they're arguing they can't be held accountable for
10 monetary damages even though they continue to violate
11 our rights.
12 Finally on the minors, I think that we have
13 a dispute about that, but I do think it's still an
14 important public policy issue that here the minors are
15 under disability during this period that the
16 continuing violation occurs, so I think they should be
17 afforded special interest. Thank you, Your Honor.
18 THE COURT: Mr. Montana, do you have
19 something on this issue or these issues?
20 MR. MONTANA: These issues, yes, Your Honor.
21 Thank you, Your Honor. If it please the
22 Court, I'm Gary Montana, Julie Dumar's attorney as
23 well as the attorney for Group B.
24 I know the Court has said numerous times,
25 and after four or five years in it, obviously I
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1 haven't been in as long as Mr. Kaardal has, but it is
2 a very convoluted case. But it seems to me it
3 wouldn't have been so convoluted if the original Act
4 of '63 would have been started off with and then
5 everything progressed from that point on because I've
6 always believed from the beginning when I read the
7 case and I read the Appropriation Acts, the Act of '63
8 created the trusts for the friendly Mdewakanton or the
9 friendly Sioux. And if the friendly Sioux were then
10 identified after February of '63 and allotted their
11 lands, obviously we wouldn't be here today. That
12 wasn't the case.
13 In the development of my colleague's
14 arguments on takings and Nonintercourse Act, I'm going
15 to go back to my original argument. I studied over
16 the last few months the congressional intent of
17 Congress dealing with the February 16 Act in depth
18 over and over and over again. Obviously it was
19 sometimes interesting, sometimes very boring due to
20 the fact that 90 percent of the congressional
21 discussion deals with how much money they're going to
22 take of the treaty monies, the appropriated annuities,
23 and then how they're going to deal those monies out.
24 Obviously it's during the Civil War, and many of the
25 states that have degradations in their states due to
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1 the Civil War haven't been paid a penny from the
2 Treasury. Obviously their objections are why are we
3 going to pay Minnesota these monies when we've been
4 standing in line for two or three years or 12 or 14
5 months or whatever.
6 So most of it dealt with that. But there
7 are situations where clearly Senator Fessenden I
8 believe is his name and Senator Wilkinson discuss the
9 issue of the appropriation of lands for the Loyal
10 Sioux.
11 But clearly they're Eastern Senators, and
12 then we're dealing with Mr. Rice and I think Mr.
13 Wilkinson from Wisconsin? One or the other. Anyway,
14 they're obviously wanting the money as much as they
15 can get for the state. Eastern Senators are concerned
16 about annulling treaties without having the facts
17 before them. But all through their discussion of the
18 legislative intent, they talk about the fact that what
19 are we going to do with the friendly Sioux? In fact
20 at one point Mr. Fessenden says on January 26, 1863,
21 "What I mean is simply this. That on a bill of this
22 kind brought in for one special purpose providing
23 remuneration for the Sioux of Minnesota for what they
24 have suffered, I am not prepared to consider so
25 important a question which is wrapped up in a single
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1 provision here so as to settle the whole matter
2 removing Indians from their reservations before we
3 make any sort of provision for them. I am willing to
4 take the matter up on the Senator's bill when it comes
5 before us."
6 So I guess in this situation Mr. Fessenden
7 is dealing with the issue or the fact that they have
8 knowledge of the March Act coming about because the
9 other Senators have said we are bringing forth another
10 Act for removal. He's talking about that issue.
11 Then Wilkinson says, "The committee has
12 provided these very Indians, this bill provides for
13 their settlement and the other bill which will be
14 brought forward in short time provides for their
15 removal. The two propositions have been agreed on
16 after a careful and laborious investigation as the
17 committee knew how to give." So, in other words, yes,
18 the Court of Appeals has said we've possibly
19 superseded or amended the February Act, but clearly
20 from the legislative intent they knew about the
21 removal act.
22 If you look at the legislative intent for
23 the March 3 Act there's absolutely no discussions.
24 Brought on the Floor and it's passed. And then
25 further on they deal with the issue of whether it's
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1 $1.5 million, whether they want to take two-thirds of
2 the treaty annuities over four years and give it to
3 the state of Minnesota, obviously they settled on
4 $100,000. But all through this the discussion is that
5 they will receive something. And I doubt very much
6 based on the legislative history that if the Eastern
7 Senators were not convinced that the friendly Sioux
8 would receive at least the 80 acres that this bill
9 would have passed at this time because it's all
10 through this.
11 Doolittle says they are certified, they're
12 talking about people that were loyal, he says, "They
13 are certified by person in command who certifies on
14 his own knowledge of the Indians, some 60 of them
15 besides their families. It is somewhat because of
16 their uncertainty as to how many of these friendly
17 Indians were upon our hands that a majority of the
18 committee were unwilling to take the whole of this
19 appropriation and put it at the disposition of the
20 commission for the payment of damages."
21 So he's recognizing that there are these 60
22 Indians or families that need to be taken care of, and
23 the committee is not willing to take all the
24 appropriations for the state of Minnesota because we
25 need to take care of these families. So it's very
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1 important you can see through the legislative intent
2 that they will be cared for.
3 As for the government's issue on authorized,
4 they cite to the term authorized as being the term
5 that is pivotal in their argument that this is
6 discretionary. They cite to the Hopi case which was
7 dealing with attorney fees which was before the Court
8 of Claims. In that case it wasn't Indians that were
9 entitled to attorney fees. It was the tribe, but it
10 wasn't Indian attorneys who were trying to get the
11 attorney fees. But clearly under that statute it says
12 that it was discretionary. They use the word
13 "authorized", but it also goes on to say it's
14 discretionary.
15 So it's clearly distinguishable from our
16 case. In fact the more I read about our case the more
17 I think it's one of first impression in front of the
18 Court of Claims when it comes to Indian issues. It's
19 so unique.
20 But also they cite to the Begay v. United
21 States case in their latest reply. Begay dealt with
22 the relocation of Navajos and Hopis. I worked on that
23 case many years ago for NARF. But they were in a
24 joint use area and there was legislation passed where
25 they were to move out. There was a certain amount of
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1 money that was appropriated for their removal and
2 moving expenses.
3 In Begay the situation came down they did
4 not find a money-mandating statute. They said it was
5 a money-mandating statute, but under that statute the
6 claimants had received all the money they could
7 receive under the statute for their relocation. In
8 other words, because they had received the benefits of
9 the statute, there was no more money-mandating
10 allowances left under the statute. So clearly those
11 cases are distinguishable from our present situation.
12 I know my friend, Robin, continually goes
13 back to the '51 and '58 treaties, and clearly in the
14 legislative discussion on the floor of the Senate they
15 talk about it. Senator Howard says, "It is that by
16 the absolute annulment of the treaty as it might
17 happen that the title of the lands which they have
18 ceded to the United States under their treaties would
19 revert to the Indians themselves and they cease to be
20 property of the United States."
21 That appears to be a difficulty in the mind
22 of the Senator from Maine. "I do not know whether
23 such would be the legal consequence of such an annuity
24 or not, but in order to guard against it I think we
25 ought to amend this section in that respect."
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1 In other words they're saying if we're going
2 to annul these treaties, doesn't that give them their
3 lands back? And clearly they didn't really deal with
4 that issue. They do annul the treaties, but the
5 question is do the Indians have their lands returned
6 to them? So that's an issue I think the Court
7 obviously can look to when it's looking at the
8 Nonintercourse Act issue as well as the takings issue
9 that my other colleagues have brought up.
10 As far as the statutory construction cases
11 that Your Honor has cited in his October 21 opinion,
12 the government really doesn't cite any case law that's
13 contrary to the cases that you have cited or to any of
14 the other cases that we have cited. But I guess
15 you're well aware of those cases, so I will not
16 elaborate on them, but obviously there are certain
17 canons of construction that are applicable to Indian
18 tribes. I think it's only been brought up in recent
19 arguments that those canons of construction should
20 apply to this situation.
21 In my brief, I say, "Finally, the canons of
22 construction applicable to Indian law are rooted in
23 the unique trust relationship between the United
24 States and the Indians. Thus it is well established
25 that treaties should be construed liberally in favor
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1 of Indians, Choctaw Nation, Collette v. Trapp." Then
2 they go on with ambiguous provisions interpreted in
3 their favor. That's McCallahan v. Arizona Tax
4 Commission, a Supreme Court decision.
5 Absent explicit statutory language,
6 Washington v. United States, there should be no
7 abrogation of treaty rights or statutory
8 interpretation against Indians.
9 So in this case the Court has held that we
10 have an identifiable group of Indians. The question
11 is, did the federal government have the statutory
12 ability to discretionarily deal out the 80 acres?
13 For months and years they argued the March
14 Act gave them that ability because it had the word
15 assign in there. Assign the tenure, okay? But if you
16 know Indian law, assign, that term is used throughout
17 Indian law from the beginning of Felix Cohen or before
18 Felix Cohen to assign allotments. The only assignment
19 that really occurs in Indian law today is when Indian
20 tribes assign five or six acres for a homestead of
21 tribal lands to a tribal member. So just because they
22 use the word assign is no indication that that term
23 means assignments.
24 But now the government is arguing that the
25 word authorize in the first Act should be used for
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1 that discretionary pleasure of the federal government
2 to determine tenure. But if you look at the term
3 authorize in the context of the canons of construction
4 as well as the legislative intent, I do not see how
5 the Court can come up with any other conclusion than
6 the fact that the 80-acre requirement, obligation,
7 statutory obligation, is still good law. They have
8 not fulfilled it. And if you argue that they did
9 fulfill it under the Appropriation Acts, then
10 obviously those lands should have still been in the
11 possession of their heirs, and the end result was that
12 a trust was created and those lands were illegally
13 taken without just compensation under the 1980 Act.
14 The government points in their brief on page
15 10F that land purchases for approximately 50
16 Mdewakanton Sioux were made pursuant to three
17 Appropriation Acts: '84, '85, '86. Those lands were
18 given to individual Indians in fee, but many were lost
19 within two years because the recipients of the fee
20 patents sold their properties or failed to pay
21 mortgages or local property taxes.
22 Now, if these properties were purchased
23 pursuant to the February Act, the February Act clearly
24 indicates under Section 9 that those lands cannot be
25 encumbered, taxed, mortgaged or alienated without the
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1 approval of the President of the United States. It
2 seems like the more I get into it, the more issues I
3 see because obviously this would be a Nonintercourse
4 Act issue if those lands were taken without the
5 approval of the President.
6 But assuming that the '63 Act is a good Act,
7 which we believe, no statute of limitations can run on
8 that because it's never been fulfilled. It may have
9 partially been fulfilled, okay? But if the government
10 would have done their job in '63 or '65, identified
11 the friendlies and gave them the 80 acres, obviously
12 we wouldn't be here today. But even if they gave
13 let's say half of them their 80 acres, we could
14 identify them, then we'd only be dealing with whatever
15 was remaining that didn't receive their papers.
16 Obviously then maybe the Appropriation Acts would not
17 have been an issue.
18 But on the Appropriation Acts, if you say
19 the '86, '89 are presumptive starting points, the '86
20 census, and this is what really bothers me, and I know
21 I'm jumping out of the gate too quickly here maybe on
22 this eligibility issue, but the '86 census was taken
23 two years before the first Appropriation Act. How in
24 all sanity can anybody say that the '86 census was
25 some kind of precursor to beneficiaries under the '88,
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1 '89 and '90 Appropriation Acts when those acts had not
2 been even passed? And where is the documentation from
3 the government, because now they're obviously acceding
4 to Mr. Cardell's argument, '86 to '89, where is the
5 Interior documentation that these individuals were
6 actually even sent out to do this for the '88 to '89?
7 Obviously in '86 McCloud didn't know why he was -- he
8 was sent to do it, but he certainly was not sent out
9 there to do it as a prerequisite to the '88, '89 and
10 '90 censuses because they were not even passed.
11 We know there are clearly issues that have
12 to be looked at, and the '86 census is really just a
13 regurgitation of the 1885 annuity list that was taken
14 in Minnesota that has some other names on it, for
15 instance Old Betts. I'm sure Your Honor is aware of
16 Old Betts. She used to always say Gosh Poppy, Gosh
17 Poppy, which means any change. In fact I had one of
18 my researchers and his daughter there and I was always
19 telling her to go to college. I said if you don't go
20 to college you're going to be running around Sioux
21 Falls saying Gosh Poppy, Gosh Poppy with your basket,
22 right? She got offended at one point, but I think
23 she's going to go to college because she doesn't want
24 to run around saying Gosh, Poppy.
25 So anyway, I think that other than the
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1 money-mandating issue, Your Honor, our positions are
2 fairly clear. Irrelevant of the Nonintercourse Act or
3 the takings issue, that is still good law and there
4 are still money-mandating issues.
5 In the case that they cited recently, the
6 Begay case, the Court said however, the fact that the
7 Tucker Act creates a waiver of sovereign immunity does
8 not mean that it also creates a substantive right for
9 money damages. A right on which a claim can be
10 founded. Then they cite to Mitchell II, which I'm
11 sure you're aware of, Your Honor.
12 The Court preserves those portions of the
13 holdings in Mitchell I and the test that said Parker
14 Act does not in and of itself create a substantive
15 right to recovery of damages. The right to recovery
16 of money damages is essentially to being able to bring
17 a claim in this Court because its jurisdiction is
18 limited to money damages. At present it is not
19 necessary that a statute expressly provide for a right
20 to enforceable money damages. A claimant need only
21 demonstrate that the source of the substantive law he
22 or she relies upon can fairly be interpreted as
23 mandating compensations by the federal government for
24 damages, Mitchell II, Aspen, Eastport, and they go on.
25 Thus, claimant may be granted a right to
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1 recovery of damage by express language or by
2 implication. A determination that a statute can
3 fairly be interpreted as providing this requisite
4 substantive right for money damages depends on the
5 facts and underlying substantive law in which the
6 particular case is brought. Then they cite to
7 Anderson. Then they cite Anderson's three-part test
8 and term a statute can fairly be interpreted as
9 mandating compensation. One, a right to a benefit is
10 conferred by statute. Here we have the February 16,
11 1863 Act, 80 acres that should have been allotted to
12 these people that were friendly to the United States.
13 As an Indian, I read these cases. I was
14 born in Standing Rock in extreme poverty and later was
15 adopted by a Bohemian woman from Iowa in fact and
16 raised that way. But I always wanted to be a lawyer.
17 But I read these cases all the time, and I just cannot
18 understand. In this particular case we have a group
19 of Native Americans who helped these people. They
20 saved their lives. They basically were agrarian.
21 They wanted what the policy of the Allotment Act was
22 to give the Indians. And yet they still were not
23 given what statutorily was required of them. It was
24 like you're d**ned if you don't and you're d**ned if
25 you do in situations of Native Americans many times.
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1 This is a situation.
2 So in our case we believe under this three3
part pronged test under Anderson that the right to a
4 benefit is conferred by a statute. That was the 80
5 acres. The benefit conferred is economic in nature.
6 Certainly the 80 acres was an economic benefit for
7 those Loyal Mdewakanton or friendly Mdewakanton.
8 Really during the legislative discussion they only
9 referred to them as friendly.
10 Three, the government breaches its duty to
11 confer the benefit. They breached it by not following
12 through with the appropriation of the 80 acres unto
13 their heirs forever.
14 So we believe, one, Your Honor, that the '63
15 Act, February 16, '63 Act clearly is a good law.
16 Never has it been abrogated, repealed. Nothing within
17 the March Act refers back to the February Act that
18 says it's repealed, abrogated or changed. You'll
19 notice in the 1870 Act that amended the March Act, it
20 says it expressly amends the March Act. You would
21 think if the March Act was going to amend the February
22 Act there would have been something in the confines,
23 but obviously there was not.
24 So we believe that they can be read
25 together, that yes, the February Act was for annulling
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1 the treaties, but also Section 9 was clearly to take
2 care of those that were loyal and did not really annul
3 their treaty rights.
4 Two, the March Act was for removal of the
5 hostiles, of those that were to be leaving the state.
6 Section 4 is clearly a reiteration of Section 9 in
7 that they were still continuing to care for those
8 friendly Sioux that remained within the state of
9 Minnesota.
10 Basically, again, back to the money11
mandating issue, we feel fairly convinced that it was
12 money-mandating and that if it had been followed
13 through with, clearly we probably wouldn't be here
14 today and I'm truly sorry about that. Thank you, sir.
15 THE COURT: Thank you very much.
16 MR. MONTANA: Oh, one last thing.
17 THE COURT: Yes.
18 MR. MONTANA: I was always going to read
19 this in Court. Remember Felix Cohen, Handbook of
20 Indian Law. He was a Jewish attorney who wrote what I
21 call the Bible on Indian law. But in his preface to
22 his book he says, "Like the miner's canary, the Indian
23 marks the shift from fresh air to poison gas in our
24 political atmosphere. Our treatment of Indians, even
25 more than our treatment of other minorities, reflects
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1 the rise and fall in our democratic faith." Felix
2 Cohen, 1953. In fact that's the year he died. Thank
3 you, Your Honor.
4 THE COURT: Thank you.
5 Mr. Edwards, are you next? Is someone next?
6 All right. Let's take about a five-minute
7 break. In fact we have a timing problem. We'll take
8 a five-minute break now, but I'm going to suggest when
9 we finish this portion of the argument that we take a
10 10-minute break and then we continue. I'm sorry to
11 say that, I'd almost like to come back this afternoon,
12 but we have people on the telephone and we're going to
13 have to continue. Let's take a five-minute break now
14 and the Court will take it in place. Thank you.
15 ALL: Thank you, Your Honor.
16 (Whereupon, a brief recess was taken.)
17 THE COURT: Mr. Edwards?
18 MR. EDWARDS: I want to try to address some
19 of the points made by the government, Your Honor.
20 First of all one of the issues is whether or
21 not the February 1863 Act creates a trust-like
22 relationship, and of course I say that it does. I
23 want to show you the language, they say it a million
24 times, of Section 9. The last sentence of Section 9,
25 "The lands so set apart shall not be subject to tax,
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1 forfeiture or sale by process of law and shall not be
2 aliened or devised except by consent of the President
3 of the United States. It shall be an inheritance to
4 said Indians and their heirs forever."
5 That's not fee simple, okay? If that were
6 fee simple, there would be no condition of ownership.
7 The Indians who received the land would be able to
8 devise it as they wish, they could encumber it with
9 indebtedness, they could do whatever they wanted to
10 with it. So, if the property rights at those pieces
11 of property are like a bundle of sticks, at least one
12 of those sticks was withheld or actually several of
13 the sticks were withheld, and the only exception would
14 be if the President, who you might call maybe trustee
15 or somebody who would have some sort of fiduciary
16 duty, would give consent.
17 THE COURT: One of the problems with that
18 argument, Mr. Edwards, is that it does say 80 acres in
19 severalty, and that implies lots of little trusts
20 under your theory.
21 MR. EDWARDS: That's right, Your Honor.
22 Each. In other words, each person who received 80
23 acres could separately seek consent from the
24 President.
25 THE COURT: Okay.
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1 MR. EDWARDS: So, in any event, at least if
2 it's not a trust it has maybe perhaps a resultant
3 trust or it has some sort of a trust-like
4 relationship. And certainly if part of the bundle of
5 sticks is withheld by the government, where is the
6 stick? It's not held by the Indians who received the
7 land. It has to be somewhere. If the government owns
8 that stick, then that means the government could sell
9 the land or encumber the land. But if the government
10 can sell the land or encumber the land, then that
11 defies the rights granted to the Indian who received
12 the land.
13 So I would suggest the only alternative that
14 makes any sense is it at least is in some type of a
15 trust-like relationship. Since the government can't
16 use the stick and the Indians can't use the stick it
17 has to be in some kind of resulting trust-like
18 relationship. And I bring that up because one of my
19 arguments that the statute of limitations has tolled
20 is that under the Trust Accounting Act, that since no
21 accounting has been done of this trust-like
22 relationship that would toll the statute of
23 limitations.
24 Another argument that the statute of
25 limitations is tolled is that the Act has never been
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1 repealed or repudiated. The government has never come
2 out and specifically stated we are not going to
3 distribute any land. It never has done that in
4 writing. They've never announced it to anybody. They
5 have not repealed the Act. There's been no Act since
6 then that has said that the February 1863 Act is
7 repealed.
8 THE COURT: Mr. Edwards, just a moment.
9 Someone on the telephone or with a telephone
10 connection does not have their telephone on mute. If
11 you would please put it on mute, then we will be fine
12 in the courtroom. Thank you.
13 Go ahead, Mr. Edwards.
14 MR. EDWARDS: So in any event --
15 (Voice coming through on phone).
16 THE COURT: Mr. Leventhal, would you please
17 put your telephone on mute?
18 I'm sorry, Mr. Edwards. Please continue.
19 MR. EDWARDS: Thank you, Your Honor.
20 As a consequence, since it's never been
21 repealed and never specifically repudiated and since
22 there is no case cited or no case that I know of that
23 places some kind of a limit on how long it is until an
24 Act expires, there's no statute that causes an Act,
25 there's no code section that causes an Act to expire.
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1 That Act is still good law, and to this day the
2 federal government is still obligated to provide 80
3 acres.
4 Now in that Act what's missing is a
5 description of where this land is, exactly what it is,
6 and as a result even though a certain amount of land
7 was set aside, and if you look in my Exhibit 223,
8 which I'll show you here in a minute, there's a letter
9 that we provided confirming that it in fact was set
10 aside, and if you look at my Exhibit 165, which I'll
11 show you in a minute, you'll find a letter from
12 Department of Interior instructing Reverend Hinman to
13 set the land aside, and you'll find that same letter
14 Reverend Hinman has written a description of the land
15 he is setting aside and signed it. So we have an
16 order setting aside land. Even though that occurred,
17 that doesn't obviate the mandate the Act has to set
18 aside land.
19 So, in other words, what I'm saying is that
20 the Act requires them to provide land whether it's the
21 land that was set aside or if that land gets sold,
22 other lands of similar quality. So since there's a
23 continuing duty to provide the land, the question then
24 arises, well, I would suggest the statute's never run
25 because the Act's never been repealed. And the
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1 question arises then, is there still a taking? I
2 would say yes, because one of the sticks in the bundle
3 of sticks would be a life estate, and if somebody
4 takes away the use of land that's been mandated to you
5 by Congress for your entire life, that certainly is a
6 cognizable property interest that can be taken.
7 I'd like to offer those arguments in
8 addition to the ones that have already been made that
9 the tolling should be. I also have some things I'd
10 like to say about statutory construction. These are
11 from my reply brief.
12 What I've done, Your Honor, I just got a
13 copy of Suthers and I went through it pretty
14 carefully. A lot of what I've put in this reply brief
15 and statutory construction is straight out of Suthers.
16 According to Suthers, when a right is at
17 issue in an act, it's mandatory, not discretionary.
18 In this case we have a property right that's
19 prescribed by the Act, so it would be mandatory, so it
20 would be the presumption. According to Suthers, when
21 a proposed statutory construction frustrates the
22 policy that Congress sought to implement, the courts
23 will disregard the proffered construction. Where the
24 statute grants authority to do a thing and prescribes
25 the manner of doing it, the rule is clear that the
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1 provision as to the manner of doing a thing is
2 mandatory even though doing it in the first place is
3 discretionary.
4 Where the statute provides for the
5 performance of Acts, for the exercise of power or
6 authority by public officers protecting private
7 rights, when the public interests, they're mandatory.
8 And so what you have is you have a lot of reasons that
9 this Act is mandatory and the government really is
10 providing nothing to show that it's discretionary.
11 You can look at it this way. If the land
12 gets set aside, then it's irrelevant as to whether or
13 not it was mandatory because it's been

[hermin1]

here is more of the transcript:
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1 That Act is still good law, and to this day the
2 federal government is still obligated to provide 80
3 acres.
4 Now in that Act what's missing is a
5 description of where this land is, exactly what it is,
6 and as a result even though a certain amount of land
7 was set aside, and if you look in my Exhibit 223,
8 which I'll show you here in a minute, there's a letter
9 that we provided confirming that it in fact was set
10 aside, and if you look at my Exhibit 165, which I'll
11 show you in a minute, you'll find a letter from
12 Department of Interior instructing Reverend Hinman to
13 set the land aside, and you'll find that same letter
14 Reverend Hinman has written a description of the land
15 he is setting aside and signed it. So we have an
16 order setting aside land. Even though that occurred,
17 that doesn't obviate the mandate the Act has to set
18 aside land.
19 So, in other words, what I'm saying is that
20 the Act requires them to provide land whether it's the
21 land that was set aside or if that land gets sold,
22 other lands of similar quality. So since there's a
23 continuing duty to provide the land, the question then
24 arises, well, I would suggest the statute's never run
25 because the Act's never been repealed. And the
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1 question arises then, is there still a taking? I
2 would say yes, because one of the sticks in the bundle
3 of sticks would be a life estate, and if somebody
4 takes away the use of land that's been mandated to you
5 by Congress for your entire life, that certainly is a
6 cognizable property interest that can be taken.
7 I'd like to offer those arguments in
8 addition to the ones that have already been made that
9 the tolling should be. I also have some things I'd
10 like to say about statutory construction. These are
11 from my reply brief.
12 What I've done, Your Honor, I just got a
13 copy of Suthers and I went through it pretty
14 carefully. A lot of what I've put in this reply brief
15 and statutory construction is straight out of Suthers.
16 According to Suthers, when a right is at
17 issue in an act, it's mandatory, not discretionary.
18 In this case we have a property right that's
19 prescribed by the Act, so it would be mandatory, so it
20 would be the presumption. According to Suthers, when
21 a proposed statutory construction frustrates the
22 policy that Congress sought to implement, the courts
23 will disregard the proffered construction. Where the
24 statute grants authority to do a thing and prescribes
25 the manner of doing it, the rule is clear that the
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1 provision as to the manner of doing a thing is
2 mandatory even though doing it in the first place is
3 discretionary.
4 Where the statute provides for the
5 performance of Acts, for the exercise of power or
6 authority by public officers protecting private
7 rights, when the public interests, they're mandatory.
8 And so what you have is you have a lot of reasons that
9 this Act is mandatory and the government really is
10 providing nothing to show that it's discretionary.
11 You can look at it this way. If the land
12 gets set aside, then it's irrelevant as to whether or
13 not it was mandatory because it's been set aside
14 already and the right's been created. If the land is
15 not set aside, excuse me, if the Act is mandatory,
16 then it's irrelevant whether it's set aside or not
17 because the executive branch was required to do it.
18 THE COURT: Now, Mr. Edwards, the Court
19 would be interested in seeing a recitation by you,
20 although a concise and brief one, of what happened as
21 you say under the 1863 Act. Now you say you have some
22 documents that you've appended. If you can cover
23 those quickly in your argument, that would be
24 appreciated.
25 MR. EDWARDS: Absolutely, Your Honor. Okay.
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1 So let's look at Exhibit 165. This is from the
2 Department of Interior, and this is dated March 17,
3 1865. "Sir, I've considered your report of this date
4 and accompanying papers." The next word I can't read.
5 "Under provisions of Section 9 of the Act of Congress
6 approved February 16 and Section 4 of the Act approved
7 March 3, 1863. This department has the authority to
8 locate individual Indians of the Sioux tribe who
9 remained true to the government and exerted themselves
10 to save the lives of the Whites during the massacre of
11 1862."
12 THE COURT: Now why don't you cover what the
13 gist of this is. I mean, the Court can read it. It's
14 actually in almost copperplate script.
15 MR. EDWARDS: What it says, Your Honor, is
16 simply that the Department of Interior is ordering
17 Reverend Hinman to set aside land, and on the second
18 page you can see the Department of Interior's
19 signature. At then the end, you see Reverend Samuel
20 Hinman's signature, and he's delineated those sections
21 of land that were set aside. Okay?
22 So one thing it does say in here of interest
23 too is that the land's being set aside withdrawn from
24 the sale of a portion of the reservation. So sections
25 are being taken out of the reservation sale and being
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1 withheld.
2 THE COURT: All right.
3 MR. EDWARDS: And then you also have Exhibit
4 223, which is in my reply brief, page 3. At the end,
5 we have the final paragraph on page 3, "The Sioux
6 lands with the exception of certain sections among
7 which is said Section 8 which were reserved by the
8 order of the Secretary of Interior, of March 17, 1865
9 for the use of certain friendly Sioux, though I am not
10 aware that any of said Indians have been located
11 thereon, are now open for sale under the direction of
12 the General Land Office."
13 This letter also acknowledges that in fact
14 the land was set aside and that now they're selling
15 it. And so I'm just trying to say that not only was
16 the Act mandatory that the land be set aside, but the
17 land was in fact set aside and then sold.
18 THE COURT: Thank you.
19 MR. EDWARDS: Voisson can be distinguished
20 on the statute of limitations in that Voisson actually
21 owned the land, the family was on the island at time
22 the land office was giving away the land that they
23 knew that the owned, which is a very different
24 scenario than you have Indians who haven't been made
25 aware of which particular piece of land it is that --
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1 THE COURT: Well, they knew they occupied.
2 The Court has in hand the Voisson case. I'm familiar
3 with that.
4 MR. EDWARDS: Okay. Thank you, Your Honor.
5 That's all I have for this portion of the argument,
6 Your Honor.
7 THE COURT: All right. Thank you.
8 Now, Mr. Hogan? Mr. Zephier? Mr. Zephier?
9 MR. ZEPHIER: Your Honor, I was prepared to
10 address the eligibility beyond the 1886 and 1889
11 census.
12 THE COURT: Now let's cover that if we will
13 in the last portion of the argument if we can do that,
14 Mr. Zephier.
15 MR. ZEPHIER: Okay. Sure.
16 THE COURT: I'd like to hear more on that.
17 Mr. Hogan?
18 MR. HOGAN: I have nothing to add, Your
19 Honor.
20 THE COURT: All right. Ms. Schwarz, you
21 have a reply on the motion to dismiss. I must say
22 after your reply I am tempted to take a luncheon break
23 and to return. Would you mind? I ordinarily would
24 just go straight through, but I'm a little reluctant
25 to do that with everyone.
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1 MS. SCHWARZ: I apologize to the Court --
2 there are a few key points that I want to clarify to
3 make sure, starting with the presentation by Mr.
4 Kaardal dealing with the motion to dismiss and the
5 sale of the reservation lands.
6 He discussed purchase and when the claim
7 accrued, and continuing with that as kind of the law
8 or a defense in saying that. There's this notion of
9 this continuing claim because there's a land patent
10 that was issued in 2002, so that was the last act.
11 But the case law is when the claim first accrued.
12 It's when that first person entered into the land that
13 they claim an interest in that they were put on
14 rights. Under the Menominee case, there's a
15 contention of tolling because of ignorance of the law,
16 because of ignorance of their legal rights is not
17 proper. There's no fulfillment by the Defendant that
18 doesn't toll the statute of limitations. However, the
19 facts of potential injury are inherently unknowable.
20 That wasn't the case that they're arguing today.
21 Dealing with the money-mandating duty --
22 sorry, I'm going to take that back and address the
23 next point, which is dealing with looking for
24 congressional intent to the statute. Courts don't
25 have to look for congressional intent of the statute.
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1 I don't believe it was mentioned, I apologize, the
2 case is lost to me right now, but I think it may have
3 been the Bear case that discussed it or the Sixth
4 Circuit case that was discussed in Bear. It's not
5 necessarily a statute that gives you congressional
6 intent, but it's actions and things that are done in
7 furtherance of that.
8 Here we still hold that the Bear case is
9 differentiated from here because that's only dealing
10 with escheating in combination whereas Tuscarora, a
11 Supreme Court precedent, is still the governing law.
12 It hasn't been overturned. Bear couldn't overturn it.
13 And that's how specifically the protection of 177
14 doesn't apply to the sovereign. Additionally --
15 THE COURT: I think if I look slightly
16 puzzled, it's because I know these cases by different
17 names. Tuscarora to me and Menominee. But anyway,
18 we'll leave that aside. I'm following you.
19 MS. SCHWARZ: Maybe I need lunch sooner than
20 I thought.
21 In terms of with the -- the full text of it
22 which hasn't really been cited by the parties, we
23 cited it for the first time in our reply brief because
24 we've been dealing with excerpts from it is -- title
25 or claim thereto from any Indian nation or tribe of
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1 Indians shall be of any validity. Every person who
2 not being employed under the authority of the United
3 States attempts to negotiate such treaty conventions
4 directly or indirectly or to treat with such nation or
5 tribe of Indians for the title or purchase of any
6 land. Subsequent case law interpreting the
7 Nonintercourse Act has specifically held that you have
8 to be a tribe to assert those rights. It's a
9 jurisdictional bar. So we again assert that
10 Plaintiffs have not shown under the Enterprise Act
11 that they are a tribe.
12 I'm getting into the successor in interest
13 claims and not having knowledge of their successor in
14 interest until December. All along in this lawsuit
15 they've advised that they are the 1886 Mdewakantons.
16 So to the extent that they thought that they had any
17 claims to those lands, those claims have been known.
18 The government has never said that the two communities
19 are not recognized as successors to the former Sioux
20 communities.
21 THE COURT: Say that again.
22 MS. SCHWARZ: The United States has never
23 asserted in this lawsuit that communities are not
24 successors in interest. What was at issue in the 2005
25 brief was in terms of whether the Lower Sioux
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1 community could assert itself in the lawsuit given the
2 fact that it has the different people who are members
3 of it. And we never took that position. In fact when
4 we look at kind of the docketed 363 cases and the
5 Lower Sioux and the Sioux judgment claims done with
6 the annuities in the Court of Claims and the
7 legislation that was passed along with those, they
8 specifically say that successors to those Sioux tribes
9 were Lower Sioux, Prairie Island, Shakopee, and there
10 are other tribes that were listed. So it's never been
11 the government's position that the communities aren't
12 successors in interest.
13 THE COURT: Now you're using a double
14 negative, and I want to make sure I hear you properly.
15 MS. SCHWARZ: Sorry. The government has
16 never taken the position that the three communities
17 are not successors in interest, but more importantly -
18 -
19 THE COURT: Well, that doesn't mean they
20 are. That's the problem I'm having.
21 MS. SCHWARZ: The problem is we're looking
22 at it in terms of when Mr. Kaardal makes his
23 assertions, he says it's asked in Nonintercourse Act
24 claims. I will state further that we did not, the
25 United States' position is that there is no
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1 Nonintercourse Act claims. We've never considered
2 there to be such claims, so the issue of who's a
3 successor in interest for these claims hasn't been
4 raised, it hasn't been addressed, and to the extent
5 that it is there's no claims, there's no one who could
6 be a successor in interest to it. And the
7 Passamaquoddy and the Narragansett cases are very
8 distinguishable. There they were readily recognized
9 tribes.
10 THE COURT: I know we have to deal with
11 those precedents, but this case really is unique. You
12 have this group of Loyal Mdewakanton who split off,
13 and they do split off. So we really don't have
14 anymore the same kind of aboriginal right to trace it
15 back. We have a succession that passes through, for
16 example, the other treaties, especially the 1851 and
17 1858 treaties and so on. But we have to be careful
18 about that.
19 MS. SCHWARZ: I do have to correct the
20 record. It was the state that recognized the
21 Passamaquoddy and the Narragansett, not the federal
22 government. I apologize for that. But those two
23 entities, they did have land, they did have community
24 bylaws, political leadership, lived together. Here we
25 have 2000 Plaintiffs are members of the Ogala Sioux.
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1 THE COURT: But one of the reasons the
2 Department recognized Shakopee and Prairie Island and
3 Lower Sioux as communities and not tribes was exactly
4 what we're talking about.
5 MS. SCHWARZ: Correct.
6 THE COURT: Let's not go down that path. We
7 have better things to do with our time.
8 MS. SCHWARZ: Okay. Then in dealing with
9 the trust funds issue, somehow there is a trust and
10 the funds and the application of the Indian Trust
11 litigation accounting statute, in the Court's opinion,
12 it is our understanding that those are trust funds
13 because they were put into a trust account. Here
14 we're not dealing with trust benefits. There's been
15 no money collected. There's been no land. There's no
16 trust to which it could apply.
17 Mr. Kaardal asserted that there's been 90
18 years of fiduciary obligations, but the Federal
19 Circuit has held that the 1886 lands, there was no
20 fiduciary relationship that was created, there was no
21 vested interest.
22 THE COURT: I'm sure that issue will be
23 mooted again but not before this Court.
24 MS. SCHWARZ: Right. And in terms of the
25 statute of limitations, the material suspension rule
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1 is kind of laid out more specifically in Young v.
2 United States, but that deals with when a claim is
3 inherently unknowable.
4 In accrual of the claim, under the accrual
5 suspension rule which provides that a claim cannot
6 accrue until the claimant knew or should have known
7 that the claim exists. The claimant must show that
8 the defendant has concealed its acts with the result
9 that the plaintiff was unaware of their existence or
10 must show that its injury was inherently unknowable at
11 the accrual date.
12 In taking Plaintiff's theory of the case,
13 not that I agree with it, but if you say that the
14 setting aside of the land and then placing it back
15 into the public sale, if that was the issue, once
16 those lands are placed back into public sale they're
17 no longer set aside, that's when the claim accrues.
18 That's when they knew about it.
19 THE COURT: Well, one of the problems is
20 that the land was never distributed in severalty. It
21 might have been set aside, but it was then never
22 distributed in severalty. We'll have to think about
23 that issue.
24 MS. SCHWARZ: With the continuing claim
25 doctrine, to accept Plaintiff's theory of the
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1 continuing claim doctrine, it would go against and
2 disregard the purpose of the statute of limitations,
3 and it would seek to claim an action in perpetuity,
4 whereas the understanding is the government action is
5 dependent on a dependent, distinct rung. It's a
6 single government action. Just because it has
7 lingering effects, there isn't this continuous
8 bifurcation. Rather with Plaintiff's interpretation,
9 they would seek that that one effect would continue on
10 forever and the statute of limitations would never
11 accrue.
12 THE COURT: Unfortunately the Court has had
13 a number of cases that deal with Brown Park, so I say
14 unfortunately because you're right on lingering
15 effects.
16 MS. SCHWARZ: Turning to Mr. Montana's
17 presentation on did 1863 create a trust, again, we
18 argue that the language of the Act simply does not
19 create a trust.
20 Furthermore, Mr. Montana gets into the
21 legislative history that he looked at to only if the
22 language of the statute isn't -- if there's no doubt
23 as to the language of the statute. We hold that the
24 language of the February 1863 Act and the March 1863
25 Act are clear on their base to the extent they get
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1 into Hopi and McBride. You can look to it as
2 guidance, but it can't overturn the clear language.
3 In going through the legislative history
4 I've spent a lot of time, especially since we last met
5 up, to be more informed for the Court. One of the big
6 concerns that they had, the Senators in there debating
7 this, was how much Minnesota, what type of money
8 Minnesota would get as a state because of what had
9 happened. Kentucky was not happy because given what
10 they had with the greater rebellion that was occurring
11 in the country at the time, Texas and Missouri thought
12 that they should get money, that their issue was much
13 larger than Minnesota's. And the majority of
14 legislation concerned the money to settlers, where it
15 would come from, what to do with these appropriations
16 and annuities.
17 And the issue of the 1838 Treaty is that
18 some of the Senators did bring up the fact that maybe
19 we shouldn't forfeit or abrogate or annul the 1858
20 Treaty because it would impact a certain group of
21 people, but in the end they did. They abrogated, they
22 annulled.
23 THE COURT: But they put in the special
24 section --
25 MS. SCHWARZ: They put in a special section.
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1 THE COURT: I will say we are quite familiar
2 with the legislative history because we collected the
3 whole thing. We did it the last round.
4 MS. SCHWARZ: To the extent that they wanted
5 to bring back a treaty or renegotiate a treaty,
6 Congress knew how to do that. They renegotiated a
7 treaty -- the Lake Traverse Treaty. So that wasn't
8 done here.
9 THE COURT: What they did was put in this
10 other provision through essentially take account. It
11 wasn't entirely apparent in the final account of
12 provision for the Loyal Mdewakanton. We're dealing
13 with that history.
14 MS. SCHWARZ: That's something that I think
15 the parties do make a mistake in is the individuals
16 who are to benefit under the 1863 Act and those
17 individuals later addressed by the Appropriations Act
18 and subsequent appropriations that were made, it's two
19 different groups.
20 THE COURT: Now that's an argument we ought
21 to take in the final round.
22 MS. SCHWARZ: Okay. Okay. And then in
23 terms of the identifiable group, that would be for the
24 second round, but the identifiable group that's been
25 before this Court before is who's entitled to assert
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1 claims under those Appropriations Acts. We haven't
2 addressed the 1863 Act.
3 THE COURT: That's what I'd propose the
4 focus of our closing round of argument be.
5 MS. SCHWARZ: And then addressing Mr.
6 Edwards' assertion with the 1863 Act, the Court
7 brought up the severalty issue that I won't reiterate.
8 But you can't have a trust-like relationship. It's a
9 trust or it's not a trust. We assert under the
10 governing law of the case, the Federal Circuit's
11 interpretation, other statutes, appropriations, that
12 this did not create a trust unless you had that
13 definitive trust. Then the Trust Accounting Act
14 doesn't apply.
15 For takings, it doesn't matter that the Act
16 was never repealed or repudiated. That isn't what the
17 Court looks at in terms of applying the statute of
18 limitations. It's when the person was denied a right
19 to the land. Here they're asserting that if the land
20 is set aside and withdrawn, that's when they were made
21 aware of that; that land was being put back for public
22 purpose and not for their private interests.
23 Furthermore the Act doesn't provide for land of
24 another quality. It wasn't upon the Secretary of
25 Interior to put in the language. They put in the
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1 language of the legislative history that the Secretary
2 was supposed to continue looking for land. If
3 anything, the legislative history goes against that
4 because when land wasn't set aside in severalty or
5 given fee simple or held in trust for these
6 individuals, further legislation was taken by Congress
7 to provide different lands, different money, different
8 appropriations the group expended. So to say that the
9 Secretary's under this continuous duty under a
10 permissive statute to look for land of another quality
11 is reading a whole other provision in the Act that
12 doesn't exist.
13 Furthermore, there was an Act passed in
14 1990, the Public Law Act which is the act that's
15 actually cited in Mr. Kaardal's 2002, in the land
16 patent that Mr. Kaardal has submitted, that patent was
17 issued under the October 18, 1990 Act which was
18 intended to transfer unclaimed lands, uplands, other
19 public lands to the state of Minnesota. Anything that
20 was potentially left, it authorized the Secretary of
21 Interior to resolve claims to certain other public
22 lands in Minnesota and to transfer such lands to
23 claimants on terms that recognized the equities of
24 such claimants and such lands. That would be
25 irreconcilable if there is a continuous duty to always
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1 provide some public land in Minnesota. So to the
2 extent they're looking for repudiation, that could
3 have happened in 1990 when the Public Law was passed
4 to give any further remaining land to the state of
5 Minnesota or to claimants.
6 And in terms of Mr. Edwards' summary of the
7 events that happened after 1863 with the Reverend
8 Hinman letters that went back and forth, those are
9 part of the record. We have cited to some of those in
10 --
11 THE COURT: I'm sorry?
12 MS. SCHWARZ: We've probably cited to some
13 of those letters in past briefs, and so there's no
14 quibbling that.
15 THE COURT: Right. Okay. Thank you.
16 MS. SCHWARZ: I apologize, it was rather
17 disjointed.
18 THE COURT: No, no. We all have to go
19 through this case.
20 Mr. Kaardal, briefly.
21 MR. KAARDAL: Your Honor, just two or three
22 points.
23 THE COURT: Yes.
24 MR. KAARDAL: First, Your Honor, a number of
25 times you've mentioned in the context of the tribal
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1 omen of the Indian Nonintercourse Act claim the
2 severance of tribal relations.
3 THE COURT: Yes.
4 MR. KAARDAL: There are two questions. One
5 is were the friendly Sioux a tribe under the Indian
6 Nonintercourse Act.
7 THE COURT: I understand that.
8 MR. KAARDAL: The second question would be
9 whether the '86 Mdewakanton are a tribe for purposes
10 of the Indian Nonintercourse Act.
11 THE COURT: They might be the same question.
12 MR. KAARDAL: Right, but Congress should be
13 I'd argue the illuminating light. So in the first
14 Appropriation Act -- the support of the full blood
15 Indians in Minnesota belonging to the Mdewakanton band
16 of Sioux Indians who reside in said state since May
17 20, 1886, and sever their tribal relations.
18 THE COURT: Exactly.
19 MR. KAARDAL: So the question would be,
20 would a band satisfy the Indian Nonintercourse Act
21 definition of tribe? This is something --
22 THE COURT: I think the short answer is yes,
23 and everybody would concede that. But the question
24 would be whether the Loyal Mdewakanton were a separate
25 band from the Mdewakanton at that point. And I think
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1 that's a very discrete question.
2 MR. KAARDAL: I see. I didn't catch the
3 question.
4 THE COURT: I'm sorry?
5 MR. KAARDAL: I didn't understand the
6 question. Was the question to me?
7 THE COURT: No, I just was making a comment.
8 MR. KAARDAL: Okay. With respect to the --
9 THE COURT: You can tell me the issue is not
10 what I understand it to be, but it's something else.
11 MR. KAARDAL: Right. The moniker of
12 Mdewakanton was placed on these people who were on the
13 census at that time. One might say they self14
identified, but on the other hand, the government also
15 gave them that moniker, and it may very well have been
16 ethnicities combined at that point.
17 THE COURT: Well, I think --
18 MR. KAARDAL: For example --
19 THE COURT: The Court is going to show its
20 ignorance. As I understand it, and I grew up in the
21 state of Iowa. I'm somewhat familiar with the Sioux.
22 But in any event, as I understand it, these bands of
23 the Sioux essentially lived together and they were in
24 some measure related to each other rather widely.
25 That's why you have the Mdewakanton, the Sisseton, the
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1 Wahpakoota and so on, because they were continuous and
2 related in their living habits.
3 MR. KAARDAL: That's right. Then after the
4 1886 Act, the 1886 census and these Acts, which
5 designate them as a band, they live together on these
6 land assignments, and they were beneficiaries of the
7 trust fund, and they were beneficiaries of statutory
8 use restriction, they were a group beneficiary. And
9 that sounds to me like a tribe under the Indian
10 Nonintercourse Act.
11 Now with respect to the relationship between
12 the band that I've described and the communities, I
13 heard the government say we've never said that the
14 communities weren't successors in interest. This is
15 reserving a position and this is the summary judgment
16 motion. This is the time to make your arguments and
17 this would be the time for the government to come
18 forward and say no, either the friendly Sioux
19 descendants here or the group I'm representing, now
20 would be the time to say no, you are not successors of
21 interest to these claims. The communities are --
22 THE COURT: They didn't say that. I
23 commented to Ms. Schwarz that she was using a double
24 negative and I understand why, but anyway, it serves a
25 useful ambiguous point, but it doesn't really make a
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1 direct statement.
2 MR. KAARDAL: That then goes to the thing
3 that my clients have been dealing with.
4 THE COURT: I understand.
5 MR. KAARDAL: Because my clients are asking
6 for land. They've been asking for land assignments.
7 They've been asking for 80 acres ever since they never
8 got 80. That's in the record back in 1889 they asked
9 for 80, in the 1930s when the IRA purchase money came
10 in they were asking for 80, and they still want their
11 80. And those people who aren't on the list who went
12 to Santee, those half breeds who previously under
13 different Acts received land, they've received their
14 land. So they received their 80 acres and now they've
15 been probated by Department of Interior, and the
16 lineal descendants have fractional interests in those
17 lands.
18 That's what's missing here is my clients are
19 lineal descendants and they don't have their
20 fractional interest. That's exactly what the law
21 requires.
22 And then on the last point --
23 THE COURT: I understand the problem, and
24 the problem has been with us ever since this case
25 began. But anyway, go ahead.
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1 MR. KAARDAL: I want to mention with respect
2 to authorization, the word authorization, in our
3 briefs we covered it, but there is significant case
4 law interpreting the word authorization in context as
5 mandatory. That case law should also be considered by
6 the Court.
7 The Eighth Circuit case in Chase v. United
8 States is one of many examples. In fact one of the
9 cases cited by the United States, Confederated
10 Salicias Concurrence, that made this point, that there
11 are all these cases authorized to do something,
12 particularly when there's a benefit to be conferred on
13 a third party, as I mentioned before, is an
14 obligation. And I think that's the last point I have.
15 I'm sorry. On the 1990 Act, before we
16 leave, the 1990 Act of Congress with regard to the
17 2002 sale, that it provided if I recall, I don't have
18 it in front of me, it provided that Indian claims
19 could be made on the land. And the sale shouldn't
20 occur except before 10 years if there's a claim made.
21 And so here the Surmac (ph) case started during that
22 10-year period and the United States would have been
23 aware that there are problems with respect to the
24 reservation land and the communities and so forth.
25 This is the same network of problems.
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1 So I think that the Department of Interior
2 knew from 1980 forward these problems because
3 continuously the clients were coming forward asking
4 for land, the Department of Interior was saying go to
5 the communities. There you'll get your land. And now
6 we know, at least my clients know because of the
7 Court's opinion that the communities are not based on
8 indigenous relations, that they're not successors in
9 interest. They can't be because they would have had
10 to stick with the lineal descendants. Thank you.
11 THE COURT: Yes, Mr. Montana?
12 MR. MONTANA: Just very briefly, Your Honor.
13 I know you want to adjourn.
14 THE COURT: No, that's fine.
15 MR. MONTANA: I don't really want to say
16 anything against the Nonintercourse Act, but Mr.
17 Kaardal continually argues that his 86 individuals
18 would be a group of Indians that are recognized, but
19 if that's so, then that would go against the
20 requirements of the '88, '89 and '90 Appropriation
21 Acts to then sever their tribal relations. If they're
22 congregated in a group that recognizes the band for
23 the purpose of the Nonintercourse Act, then that goes
24 directly against severing tribal relations.
25 THE COURT: Well, I heard Mr. Kaardal on
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1 that point. We'll have to sort that one out.
2 MR. MONTANA: Okay. And then one other
3 issue that I didn't hit on before is I want to talk
4 about the '63 Acts, the February Act and also the
5 March Act. It's my contention that in the March Act
6 when they talk about as a matter of law, tenure will
7 be set as a matter of law, they're referring back to
8 the February Act, Section 9, which is the law at that
9 time relating to the friendly Sioux. That's an
10 argument I think is very important. They're saying
11 you can set the tenure and/or as a matter of law. The
12 law was established pursuant to Section 9 in
13 relationship with the friendly Sioux, so I believe
14 that it reverts back to Section 9.
15 THE COURT: Well, you can also take the view
16 that some of the Appropriation Acts language stems
17 from that very provision of the February 1863 Act.
18 MR. MONTANA: Exactly, Your Honor. And then
19 where the government and Mr. Kaardal would cite you to
20 your opinion of October 21 dealing with the
21 presumption of the '86-'89 and who says whether this
22 manner of ascertaining the lineal descendants resulted
23 in the exclusion of some individuals who may have
24 otherwise qualified is not an issue properly before
25 this Court.
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1 Will you refer back to his amended
2 complaint, Section 6 or paragraph 6, or 104, excuse
3 me? But that 104 paragraph dealt explicitly with his
4 argument that there were the exclusion of those who
5 should have been in the communities. He's not arguing
6 that there was exclusion from the '86 to '89. He's
7 arguing their exclusion from the communities that were
8 justifiably qualified to be in those communities.
9 THE COURT: That's what I was trying to
10 address. I wasn't going on.
11 MR. MONTANA: Okay. Thank you, Your Honor.
12 As long as you understand. I appreciate it.
13 THE COURT: All right. Now I'm going to
14 pass over to Mr. Edwards and Mr. Hogan and Mr.
15 Zephier. What I'd propose, and this is different in a
16 sense from what we started with, but I'd propose that
17 we take a break until 2:00 and we come back and we
18 organize our thoughts and we try to spend one hour
19 addressing the summary judgment questions. Now, to
20 me, those summary judgment questions relate to
21 entitlement.
22 MR. MONTANA: Relate to what, Your Honor?
23 THE COURT: Entitlement. That is, lineal
24 descendants and that sort of thing.
25 MR. MONTANA: In other words, who --
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1 THE COURT: That's right. And then I'd
2 propose that we take a few minutes and talk about
3 where we stand after dealing with the questions that
4 have been argued today because I'm a little concerned
5 that we move forward to a final judgment in the case.
6 Is that satisfactory, Mr. Kaardal?
7 MR. KAARDAL: Yes, Your Honor.
8 THE COURT: Ms. Schwarz?
9 MS. SCHWARZ: Yes, Your Honor.
10 THE COURT: Okay. All right. We'll do
11 that. We'll take a luncheon recess until 2:00. Thank
12 you.
13 THE CLERK: All rise.
14 (Whereupon, at 12:45 p.m., the hearing in
15 the above-entitled matter was recessed, to reconvene
16 at 2:00 p.m. this same day, Friday, May 13, 2011.)
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
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1 A F T E R N O O N S E S S I O N
2 (2:02 p.m.)
3 THE CLERK: All rise. The Court of Federal
4 Claims is again in session. The Honorable Charles F.
5 Lettow presiding.
6 THE COURT: Please be seated.
7 We appear to be ready to continue. I
8 understand that everyone who wanted to be on the
9 continued call is on.
10 For this portion of the hearing, Mr. Kaardal
11 you have the first motion. I would suggest you
12 proceed initially.
13 MR. KAARDAL: Your Honor, is this with
14 respect to the summary judgment or is it just for the
15 eligibility only?
16 THE COURT: It is the summary judgment
17 motion. The Court is going to take that as focusing
18 primarily on the eligibility or entitlement.
19 MR. KAARDAL: Okay.
20 THE COURT: There are other matters.
21 MR. KAARDAL: Right. So focusing on the
22 eligibility of the 1886 trust funds, our position is
23 that Group A, the lineal descendants of the '86 and
24 '89 census are the only eligible claimants to the 1886
25 trust funds. And that was in the I believe December
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1 21, 2010 order and we would say that that's the case.
2 And so when we present our birth
3 certificates or birth records which show lineal
4 descent to person on the 1886/1889 census, we are
5 therefore eligible for that payment. And I don't want
6 to have to recount the Judge's December 2010 order
7 sentence-by-sentence, but that that was the holding
8 with respect to the beneficiaries of the statutory use
9 restriction of lineal descendants of the 1886 and 1889
10 census and also a lot of claims -- that trust fund
11 claim I want.
12 THE COURT: I think you've made your point
13 there and that was were we started the morning with
14 Ms. Schwarz's points regarding a check of those
15 particular genealogical records. But why don't we go
16 on then to your position on other persons and on other
17 elements for summary judgment.
18 Now we've agreed -- one of the points the
19 Court had -- a number had been floating around. These
20 are actual trust monies that had been held by
21 Treasury, $673,944. Now that was developed by
22 Ms. Schwarz with consultation with you, I take it?
23 MR. KAARDAL: Yes, that's correct. And all
24 counsel on the Plaintiffs side and Ms. Schwarz agreed
25 on that number.
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1 THE COURT: How did you arrive at that
2 number and what's the period that it covers,
3 especially the end of the period?
4 MR. KAARDAL: It came up through the last
5 distribution, recognizing the Court's order of I
6 believe 1981 or 1982.
7 THE COURT: So it came up to 1981 or '82?
8 MR. KAARDAL: Yes, that's correct, Your
9 Honor.
10 THE COURT: Why don't you speak to that,
11 Ms. Schwarz.
12 MS. SCHWARZ: What it was, was based on the
13 distributions to the -- communities and the 1974
14 accounting report -- that report -- we added those
15 monies together. And when the Court had said that
16 that was I think the final distribution was '81. And
17 then from that date of final distribution to
18 January 1, 2011, we computed the interest.
19 THE COURT: What did you use for an interest
20 computation?
21 MS. SCHWARZ: We used the average yearly for
22 the Treasury level and then we subtracted what the
23 interest would have been on the Wabasha land transfer,
24 so that was the approximately $4,000 that was
25 subtracted to come to that amount.
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1 THE COURT: Okay. That's satisfactory.
2 Okay. Now let's go to the other issues you have, if
3 any?
4 MR. KAARDAL: I guess with respect to any
5 claim under the 1863 Act and the INIA Act.
6 THE COURT: We've addressed the '63 Act and
7 the Tribal aspects of the Non-Intercourse Act. I
8 don't want to go over that ground again.
9 MR. KAARDAL: That's right. I just wanted
10 to say it's the same analysis that my clients were
11 successors in interest. And then with respect to that
12 question, and then not going over the previous ground,
13 that there is the question with respect to what kind
14 of failure do we see between 1863 and 1886 on behalf
15 of Interior.
16 Interior has stated in this Court that it
17 was impossible to get this done and the Court has said
18 it would be administratively difficult. And so what
19 does that mean in the context of this hearing today?
20 And I think either way I can't perceive this Court
21 having a proceeding on friendliness that Interior
22 failed to complete in 23 years.
23 This sets the predicate then for my
24 successors of interest claim and the fact that
25 Interior has identified it as a proxy for the
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1 friendly Sioux -- in documents and I think that at the
2 time of the purchase of the 1886 lands with the
3 appropriated money it didn't need to be used to
4 purchase land. As I've indicated, there were tens of
5 thousands of acres available that should have gone to
6 this friendly Sioux group, this Loyal Mdewakanton
7 group, which is roughly the same size and composed of
8 many of the same people. If you look at the records,
9 it was always about 300 people and people were coming
10 and going.
11 At the 1863, there were a couple hundred
12 left at Fort Snelling. At Fondreaux there were a
13 couple hundred. In 1886, there were a couple hundred.
14 And I understand the Court's concern about -- I'm not
15 trying to repeat the earlier arguments -- about this
16 was such a small tribe --, but Your Honor, it's a very
17 small land claim. I mean the 1863 Act limited the
18 Tribal claim, the 80 acres per person. So you'd
19 expect a small group and you have a small group being
20 identified in the process. The 12 sections reflect
21 maybe what 80 people times 80 acres.
22 And so then you move forward and you have
23 the same size group and you have this administrative
24 difficulty in identifying the ones who exerted
25 themselves on behalf of the whites and no wonder. In
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1 1862, as the Court may be aware, there was up in
2 Yellow Medicine County or near there, there were two
3 camps. One was the hostile Dakota Indians and one was
4 the friendly one called Camp Release. There were
5 books written about how in the friendly camp they
6 concealed whites from the hostile camp.
7 Who exerted themselves to save those lives
8 then? Probably everybody. And the correspondence
9 after the 1862 war on behalf of the missionaries was
10 very similar. So I believe that Interior knew that
11 there were friendlies there and there were at least 80
12 or 100 and that they set aside the land. And then it
13 became impossible or difficult to administer.
14 And then Congress knew that something had to
15 be done for these remaining Minnesota Mdewakanton --
16 and at the time they're demanding 80, but they're
17 offered a substitute. In the time between the census
18 being done and them getting the substitute was very
19 short. It was within six years. The census, if you
20 recall, was done in '86 and '89 and the lands were
21 initially assigned red seal certificates in like 1891.
22 So why would the friendly whole bloods not
23 get 80 acres when the half bloods in Minnesota got 80
24 acres and the supplemental appendix and everyone that
25 moved to the Dakota territories got 80 acres? And
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1 that's the claim that I'm bringing in that it relates
2 right to the entitlement question. And so we received
3 a substitute until 1980 and then at that point we've
4 been landless. And the substitute would be these
5 trust funds and the land assignments that have been
6 covered.
7 Another aspect in the statute of
8 limitations, as the Court knows, is not that we're
9 completely landless, as suggested by the government
10 regarding the Passamaquoddi and Narragansett. There
11 are still living lineal descendants, Morris
12 Pendelton's Indian lands certificates in the case.
13 And he received that land assignment certificate in
14 1979 because he was a member of this beneficiary class
15 and so he received that.
16 Now prior to 1980, Morris was eligible as a
17 member of this group, this band to apply for a land
18 certificate at all three locations. That's why
19 they're all kind of interrelated because you have
20 somewhat Lower Sioux, a brother and sister getting a
21 land assignment at Shakopee and that's how they're
22 interrelated. Because as the Court knows we've had a
23 number of Prairie Island and Shakopee in the case and
24 many Lower Sioux.
25 I guess on damages -- I just want to mention
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1 that quickly and then I'll sit down.
2 THE COURT: All right.
3 MR. KAARDAL: On damages, I went through the
4 process of attempting to find publicly available
5 information regarding agricultural rents past 1980 and
6 value of land. And I was successful. And the
7 information is available to the government. It's
8 available to the Court. And what I did is under the
9 land rents is there's a farmers's cooperative in south
10 central Minnesota. Since about 1980, it's been
11 keeping average rents. There are 200 farms and it was
12 good data provided by the University of Minnesota
13 Agricultural Extension. And the average rent came out
14 to $98 an acre, and that's in my affidavit, per year.
15 And then post-1980, land value I called that
16 on the advice of an appraiser, the Redwood County
17 recorder, Joyce Anderson. I grew up in Redwood
18 County. And I called her and she provided me with the
19 record of the last couple of years of their
20 agricultural land sales and land values are high now
21 with the ethanol and all that. And so it's pushing
22 6,000. What I put in was 5,500 per acre.
23 And then the government may quibble about
24 the 21,120 acres my clients are entitled to, however
25 the Court must consider that the government can't come
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1 up with a number that's rational because it failed to
2 administer its obligation prior to 1886. So for 23
3 years they could have said 50, 75, 100. But rather in
4 1886 they came up with 264 who were eligible. And it
5 seems only fair to pick a number for damages that has
6 some meaning to it, and the meaning here would be 264
7 ended up on the list. Interior took this long to
8 identify it and these became the successors in
9 interest, just like with respect to the statutory use
10 restriction, the descendants became successors in
11 interest.
12 Here with the 1886 census, Interior was
13 finally in a very serious way -- and the census and
14 the cover letters are in the appendix -- set out to
15 finish a job because they knew the Minnesota
16 Mdewakanton presence was required by law. And so they
17 went out and they did it and then Congress
18 appropriated monies that didn't need to be used for
19 land. Rather Interior appropriately interpreted the
20 Appropriation Acts as an opportunity to deliver the
21 land it had previously promised in part because these
22 Indians were demanding land under the 1863 Act and
23 then this money was appropriated to meet their
24 demands.
25 If the Court would recall, there was even an
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1 amendment in the 1890 Act where the Prairie island
2 people said we're not getting enough and then there
3 was a specific line item for the people in Prairie
4 Island. So there was all this communication going on
5 and this is what set in motion this group, this small
6 band, if will, that we believe have claims under the
7 1863 Act and the INIA. Thank you, Your Honor.
8 THE COURT: Thank you.
9 Just a moment, Ms. Schwarz. Mr. Hogan, did
10 you wish to be heard on this issue?
11 MR. HOGAN: Your Honor, I'll defer to my
12 colleague.
13 THE COURT: I'm sorry?
14 MR. HOGAN: On behalf of Renaud, we'll defer
15 to our colleagues on that.
16 THE COURT: Mr. Montana, you have a
17 different set of issues. I want to finish off the
18 Group A folks first. Does anyone care to address
19 Group A?
20 MR. HOGAN: I do have Group A, Your Honor.
21 THE COURT: All right, you have part. I
22 understand that. Let's finish off Group A and then
23 let's go to Group B. Does anyone care to address
24 Group A besides Mr. Kaardal? I know you have briefed
25 it, Mr. Montana.
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1 (No response.)
2 THE COURT: Ms. Schwarz, do you have
3 anything to add with what you said initially on your
4 56(f) motion?
5 MS. SCHWARZ: Yes -- I apologize, Your Honor
6 -- just in terms of who -- to the extent again that we
7 assert that there are no claims under the 1863 Act.
8 But to the extent that, assuming arguendo there is
9 some type of successors in interest, the first issue
10 is with Mr. Kaardal's number in terms of 21,000 acres.
11 He's basing that off of the census of over 200 people.
12 The 1863 Act wasn't directed at the people
13 on that census. It was directed to a small, limited
14 number as we said of individuals. At most, even
15 Mr. Kaardal said maybe there's 80 individuals. The
16 Act didn't provide that that land base was going to
17 expand as descendants. It wasn't to an individual and
18 their family as was found with the Appropriations Act.
19 It was just to that individual. And so therefore to
20 the extent there's land that's being considered it
21 would only be limited to that amount. It wasn't
22 destined to grow exponentially. So to the extent that
23 it was 60 people who were in mind for receiving grants
24 under than that, and 60 times 80 would only be 4,800
25 acres of land.
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1 THE COURT: There were 12 sections. Then if
2 the Court's calculation from the Bench is correct
3 that's 7,860 acres. But in any event, we'll go from
4 there.
5 MS. SCHWARZ: In terms of the other
6 successors in interest, there has been --
7 THE COURT: But the Court remembers that
8 there were 640 acres in the section.
9 MS. SCHWARZ: But again, in terms of the
10 successors in interest, we disagree that this group
11 has been determined to be successors in interest to
12 any claims to the 1863 Act and that there's this
13 attempt to mix the 1886 lands that were purchased for
14 a separate appropriations from any lands that may have
15 been acquired under the 1863 Act and that you can't
16 mix the two.
17 While Interior may have had the intention of
18 trying to provide for a new group of people under the
19 Appropriations Act, you have to look to the language
20 of the Acts. Under the 1863, it was to these specific
21 individuals. Under the 1889 and 1890 appropriations,
22 the group that was identified as being eligible to
23 receive the appropriations were Loyal Mdewakanton of
24 full blood and half blood residing in Minnesota or on
25 their way, would move into the state and then finally
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1 who had severed their Tribal relations.
2 So that severing Tribal relations, that
3 loyalty, although it was discussed in congressional
4 legislation, not even the severing of Tribal
5 relations, although the friendliness of the Sioux was
6 talked about in the 1863 Act, that wasn't made a
7 requirement. Severing Tribal relations wasn't made a
8 requirement, so you can't look at the standards that
9 Congress set up for who could receive the
10 appropriations, starting in 1888, with what was
11 designated in 1863 and you can't mix those two.
12 That would be our point of clarification for
13 that.
14 THE COURT: Thank you.
15 Now may we turn to Group B? Mr. Montana,
16 are you taking the lead?
17 MR. MONTANA: I will take a part of it and
18 then Mr. Zephier will take over.
19 THE COURT: All right. Good. Thank you.
20 MR. MONTANA: If it please the Court, Your
21 Honor. Our contention is under the '63 Act that there
22 are obviously a lot of individuals that we've
23 proffered to the Court their genealogy that would most
24 likely qualify for the '63 lands. But under the '86
25 lands, if we're going to look at the Appropriation
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1 Acts, all three acts required severing Tribal
2 relations in Minnesota as of May of 1886 and/or
3 removing from the state of Minnesota.
4 As I mentioned earlier, the 1886 census was
5 taken two years prior to the first Appropriation Act,
6 which was 1888. So we question that as to whether or
7 not McCloud was actually sent out for the purpose of
8 the '88, '89, and '90 census. But also there's an
9 issue of severing Tribal relations.
10 In severing Tribal relations would appear to
11 be that you no longer associate with Native Americans
12 from that band. So if you're going to --
13 THE COURT: I don't know about associate.
14 MR. MONTANA: Right. It could be questioned
15 because we have clients that appear that are clearly
16 Mdewakanton. We can establish they're Mdewakanton,
17 but they don't appear on any of the censuses. They
18 only appear on United States censuses and Minnesota
19 state censuses. So clearly in their cases you know
20 they've severed because they're not with Indian
21 people, but they're in Minnesota during that period of
22 time and they have descendancy from people that were
23 loyal, considered loyal or friendly.
24 So it's our that those people clearly should
25 be included in the '86 proceeds. And that the '86 and
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1 '89 censuses should not be a beginning and an end all
2 in this process. Also, how do you take into
3 consideration those removing to Minnesota? All three
4 Acts say those removing to, so there's not way if an
5 individual is removing to Minnesota that somehow
6 they're going to be on the '86/'89.
7 I have one client who is on the Flanders
8 census in 1889, but it has a notation he moved back to
9 Minnesota and he was Mdewakanton and we can prove
10 loyalty. So the question with that is he moved back
11 to Minnesota, but he's not on the '89 or '86 census.
12 So what do you do with that situation? I agree with
13 you when you say it's convoluted. It becomes very
14 convoluted when you're trying to sort out who should
15 take and who should not take. But I think clearly if
16 you look at Kelly Strichter's declaration that she
17 attached to her response to Mr. Kaardal's motion for
18 summary judgment on '86 and '89 Mdewakanton that they
19 should be the sole beneficiaries to the '63 Act she
20 indicated in her declaration, after studying the list
21 that on the 1886 McCloud Mdewakanton census 75
22 Mdewakanton listed on the census were not born at the
23 time of the uprising.
24 In 1886, McCloud Mdewakanton census 44
25 Mdewakantons listed on the census were minors under
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1 the age of 18 at the time of the August 1862 uprising.
2 On the Hinton roll of 1889 supplemental census, there
3 are 135 Mdewakantons listed on that census who were
4 not born at the time of the August 1862 census. And
5 on the same roll, 1889 Hinton supplemental census of
6 the Mdewakantons of Minnesota, 59 Mdewakantons listed
7 on the census are minors and under the age of 18 at
8 the time of the August 1862 uprising.
9 So it would appear to have come to the
10 conclusion that the '86/'89 are somehow all tied to
11 the '62 or '63 Act would be stretching it way beyond
12 any legal reasoning when a great many of them are not
13 even in existence at the time. So our belief is that
14 yes the '63 Act, assuming everything that we have, a
15 trust obligation and we have money mandating and that
16 those Acts are still an obligation of the United
17 States those acts, particularly the beneficiaries
18 would be different than the '86, although there may be
19 people on the '86 to '89 that should be included in
20 that group.
21 But our argument also is, is that there are
22 other censuses. What do you do with the scouts. I
23 mean today if I leave -- I was in the Navy for six
24 years. If I leave South Dakota for six years, my home
25 is still in South Dakota, even though I'm in the
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1 military and I'm in Europe or Iran or in the Persian
2 Gulf or wherever I was at during those years I'm still
3 a resident in South Dakota.
4 So we have all of these scouts and we have a
5 lot of correspondence from Hinton who says the primary
6 beneficiaries of these monies and lands are to be the
7 scouts who are to be rewarded for their service. And
8 if they were Mdewakanton, we know that they Brown list
9 contained many names that were obviously Sisseton and
10 obtained Sisseton annuities and signed away whatever.
11 But the earlier census of scouts -- I guess at the
12 same time those scouts were clearly all Mdewakanton.
13 We have correspondence to support that and I think
14 we've entered them in our briefs.
15 So it's our position to be equitable to
16 everybody, and obviously I commend Mr. Kaardal for his
17 work in this case for eight years. I compliment him.
18 But there's also people out there that clearly
19 probably belong on this. We know that, for instance,
20 we studies census, th

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1 their names down as white. But there still is
2 attitude that they have to separate themselves. But a
3 lot of those people are not even involved in this
4 lawsuit. Obviously, it would be interesting to try to
5 make cold calls to these people in Minnesota to see if
6 we could find some of these people, but obviously I
7 think the list of the beneficiaries go beyond '86 and
8 '89.
9 And then as the government has said, none of
10 the Appropriation Acts that I've read require loyalty,
11 establishment of loyalty. And if the '86 lands are
12 pursuant to the '63 Act.
13 THE COURT: I think though you could say
14 that the severing Tribal relations was a substitute
15 for the loyalty.
16 MR. MONTANA: There are people that were in
17 Davenport that were put out of Davenport. They went
18 back into Minnesota and were a part of the '86/'89
19 censuses. We haven't listed that.
20 THE COURT: I thought the people who were
21 transported -- I guess is the word for it -- to
22 Davenport were those people that were subject to
23 review by President Lincoln.
24 MR. MONTANA: I guess some of them were. I
25 guess some of them weren't pardoned by Lincoln. The
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1 question is we know some of the names. And I haven't
2 really made a big issue out of that because I didn't
3 really want to get into an argument with Mr. Kaardal
4 with that issue.
5 But I do believe if we're going to look at
6 justice and equity that we should look at some of
7 these other lists, whether we have Mdewakanton? Do we
8 have scouts that clearly assisted -- for instance,
9 Taopi, he died before he received anything. His
10 mother was Old Bets and she received nothing. Of
11 course, they don't know when she died. Some people
12 say she lived to 140 years or whenever, but I know she
13 was incredible. So there are people clearly that they
14 knew were loyal, but didn't receive anything.
15 THE COURT: Part of the problem is even the
16 mcGlaughlin, the 1886 census was conducted 24 years
17 after the uprising.
18 MR. MONTANA: Correct, Your Honor.
19 THE COURT: And a lot is going to happen in
20 that 24 years, just apart from the '89 supplemental.
21 MR. MONTANA: I appreciate your time and
22 your consideration for my arguments, Your Honor.
23 I do have 4:05 plane and I'm hoping I can
24 leave the Court, be excused without missing anything
25 important.
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1 THE COURT: I think that will happen,
2 Mr. Montana.
3 MR. MONTANA: Thank you. I appreciate it,
4 Your Honor.
5 THE COURT: Let's hear from Mr. Zephier.
6 MR. ZEPHIER: Thank you, Your Honor.
7 I did have a preliminary statement to make
8 about the Group A, if I could?
9 THE COURT: Yes. Certainly.
10 MR. ZEPHIER: There are people that found
11 themselves through their ancestry linking to somebody
12 on the 1886 or 1889 census as well as tracing back to
13 an ancestor that we feel was an intended beneficiary
14 of Section 9 of the 1863 Act. So in those cases I
15 believe the individual Plaintiff groups have singled
16 those out for the Court's attention. So there are
17 individuals that fit into those categories.
18 Judge, you were right when you said that the
19 passage of time between the uprising of 1862 and the
20 Hinton list -- excuse me, the McGlaughlin list in 1886
21 that was a long period of time. And Judge, I know
22 that you history. And I know that you've studied
23 history in the past and this case is replete with
24 historical events and historical tragedies, really
25 Judge.
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1 It was at a time in the world of the Native
2 American in the United States where it was difficult
3 to become a part of both worlds. And in this case it
4 was particularly hard on the Minnesota Sioux because
5 so many of them were mixed blood or half breeds, as
6 they were referred to. Those individuals often found
7 themselves with one foot in the white world and one
8 foot in the Dakota Sioux world. And when the uprising
9 happened, Minnesota had become a territory in 1849.
10 The flood gates, so to speak, of settlement took the
11 state from 17,000 to almost 170,000 within a matter of
12 years.
13 So you're talking about a great influx of
14 the white population and the Sioux were expected to
15 live with their neighbors peacefully, according to the
16 treaty. When you speak of the importance of the 1851
17 and 1858 treaty, I believe that you are, in effect,
18 truly speaking to history because we've been talking
19 about the friendly Sioux in this case and the Loyal
20 Mdewakanton and I see that as a derivative coming out
21 all those years since the uprising.
22 But the friendly Sioux were individuals that
23 found themselves torn at this time where there was
24 this breaking of the world in Minnesota between the
25 Indian world and the white world that was the
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1 uprising.
2 When the friendly Sioux were faced with the
3 choices that they had to make back then, many of them
4 chose not to war against the whites. Many of them
5 chose to (Away from mic.) Many of them chose to
6 actually do assertive acts to go out and rescue them
7 from groups of hostiles. The majority of people that
8 we're talking about that are classified as the
9 friendly Sioux were people that wanted to honor the
10 integrity of living peacefully amongst their
11 neighbors.
12 So when we talk about the genesis of what
13 was described in Congress Act in Section 9 of the
14 February 16, 1863 Act, that what we're really talking
15 about. And obviously, Your Honor, the Appropriations
16 Acts that followed later, some 25 to 30 years later,
17 were built upon the obligations established from that
18 1863 Act.
19 Society and environment in Minnesota during
20 those years following the uprising were ranked with
21 hostilities from the white population toward the
22 Sioux. And when we talked about them being deported
23 or transported to the Dakota territory by ship, that
24 was a tragedy in and of itself. You took a whole
25 group of people that were taken from their homeland
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1 and displaced. Many of those individuals chose to
2 remain and there are individuals that we are able to
3 trace through historical documentation that remained
4 in Minnesota, despite that terrible enigma, the desire
5 and the will for genocide.
6 They wanted to remain true. they wanted to
7 assimilate with what they could with their earlier
8 lands and the people that resided there now. So you
9 had individuals that were trying to live, trying to
10 survive, whether that be in Fairbolt, whether that be
11 in Mendoza, it's well documented in Mr. Myers book as
12 to the people that actually took now part in
13 hostilities, but were peaceful and were referred to as
14 the friendlies. It is these type of individuals that
15 Congress spoke of when the February 16, 1863 Act was
16 enacted, especially Section 9.
17 Now Judge, I wanted to show you, if I could?
18 THE COURT: Yes.
19 MR. ZEPHIER: This is a document that I
20 don't know heretofore whether this has become a part
21 of the official record. If it has not, I'm surely
22 going to submit this here for publication to the
23 Court, if I would.
24 This is a letter from the Wood Lake area of
25 Minnesota, dated January 11 of 1865. It is addressed
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1 to Major General H.H. Sibley. And in this letter --
2 and I won't read the whole thing here, Your Honor, but
3 toward the bottom the question is asked "We have
4 always been at your command when needed and have tried
5 to do our duty as good, loyal men. We are still at
6 your command and the command of the government
7 whenever you see fit to make use of us. But what we
8 want to ask your advice about is getting houses for
9 ourselves before the land is all taken up. What we
10 want to know is whether there has been anything done
11 for us or if there are prospects of anything being" --
12 and I believe there's a word missing here -- "for us."
13 Now this is clearly documenting, Judge --
14 THE COURT: You'll have to submit that.
15 Submit it under just a notice. It has to have a
16 caption and you can identify it.
17 MR. ZEPHIER: I will do so.
18 THE COURT: Thank you.
19 MR. ZEPHIER: But this was signed by several
20 of the half breed scouts back in 1865. And again, it
21 makes reference to we believe to be the intent and
22 purpose of Section 9 of the 1863 Act.
23 Now Judge, Mr. Montana has Group B later. I
24 will commend him as being the Group B leader. Did he
25 leave? Okay, in absentia. I also want to commend Mr.
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1 Kaardal as well. He has taken this case a long way
2 and a very difficult case, indeed. But Mr. Montana
3 filed back in February. We called it a judicial
4 notice of lists beyond the McCloud and Hinton
5 sentences.
6 I would like the Court to take notice of
7 those lists that were identified. And one of those
8 Mr. Kaardal spoke of earlier, which is the camp
9 release census from 1862 and 1863. There are a number
10 of individuals that are named in that census that
11 many of those do not appear on the 1886 and 1889
12 census, but they would fit the category of friendly
13 Sioux. Another one of those lists is the 1862 Indian
14 camp census from Fort Snelling.
15 Judge, there were as many as 1500 to 1700
16 Sioux that were held basically at an interment camp at
17 the base of Fort Snelling along the river, the
18 confluence of the Minnesota and the Mississippi River.
19 And they were held in there, not just because they
20 were Sioux and the war was over. But they were also
21 being held there for their own protection.
22 Many of those individuals never survived
23 that. They died because of disease and the weather,
24 but they were held there. And many of those
25 individuals our various groups, Group B, have
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1 identified as being worthy of consideration for the
2 benefits under Section 9 of the 1863 Act.
3 We've also discussed the Congressional Globe
4 list of individuals, which is identified as letter C
5 under the judicial notice pleading. We've also
6 identified the Sibley two scout list of 1863. There
7 was the record of the Secretary of the Interior of
8 1866 and then what we commonly refer to as the Elroy
9 Sioux Scouts list of 1891 and '92.
10 When we talk about that particular list,
11 Your Honor, we recognize that that is somewhat removed
12 from obviously the uprising, but also from the 1886
13 and the 1889 census. Those individuals that are
14 identified in that list were identified because they
15 did not take part in the Sisseton-Wahpaton Treaty of
16 1878 that the treaty took place. So those individuals
17 and their heirs were identified in that list.
18 Also, we did refer to the 1891 Samuel Brown
19 Scout list, the Hinton Birch Cooley census of
20 Mdewakanton Sioux Indians from '91 to '93 and 1895
21 through '98. And the census of Mdewakanton Sioux of
22 Minnesota, the McGlaughlin list, which is better known
23 as from 1899 and the census of the Mdewakanton Sioux
24 Indians from 1917.
25 Dr. Bruce White did a very detailed well
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1 report and it's been attached by the Abourezk Group as
2 well as the Zephier Group as an exhibit. I would just
3 point that to your attention, Your Honor, as it
4 discusses the eligibility of certain descendants of
5 the friendly Sioux or the Loyal Mdewakanton. I think
6 it goes well to encompass the totality of the
7 individuals that are entitled to eligibility for any
8 benefits arising out of this case.
9 The Lakota, Dakita, Nakito Sioux of this
10 world, Judge, which I'm one of, we have a term
11 called --
12 THE COURT: Lakota Dakita I understand, but
13 the third word you used?
14 MR. ZEPHIER: Nakito.
15 THE COURT: Nakito?
16 MR. ZEPHIER: That's the Yantonies and the
17 people of the eastern Dakotas.
18 THE COURT: Okay.
19 MR. ZEPHIER: There's a term called the
20 Oyata, and it means family, but it also means those
21 that are near you. It can be more than your brother,
22 more than your sister, more than your mother, more
23 than your father. In other words, it extends beyond
24 just the core family. And we've always taken the
25 approach in this case since we've been involved that
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1 according to the Ovata that it is more in line with
2 the Native American and Sioux tradition to be
3 inclusive of our brothers and sisters than to be
4 exclusive.
5 And when we look at these lists, Judge,
6 that's the intent that we're hoping the Court can take
7 is that if there are any eligible people that were not
8 able to be at the time and place of the 1886 and the
9 1889 censuses that they not be excluded for any other
10 reason, but that consideration be given to those folks
11 if they can prove ancestry under any of these other
12 ways.
13 And we're not trying to make anybody's life
14 difficult by pointing these out, Judge, but when you
15 identified in equitable terminologies by saying that
16 the 1886 and the 1889 censuses were presumptive
17 starting points, you know that that lead to
18 intervening. And people that intervened are doing so
19 in good faith, trying to work through the historical
20 discovery of who their ancestors are.
21 THE COURT: The Court is well aware that
22 there are cultural and historical reasons for all
23 this, just apart from legal rights. I'm well aware of
24 that.
25 MR. ZEPHIER: It's been difficult. And we
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1 do commend the Court for your patience in that regard.
2 But Judge, I've pointed out some things here
3 I know that you want to move this along, but do you
4 have any questions for anything that I've said.
5 THE COURT: No, this is exactly the kind of
6 thing I wanted to hear and wanted to hear emphasized
7 because we're going to have to sort through a lot of
8 material.
9 MR. ZEPHIER: Okay. Thank you.
10 THE COURT: Thank you. Anyone else?
11 Mr. Edwards?
12 MR. EDWARDS: Briefly, Your Honor.
13 THE COURT: All right.
14 MR. EDWARDS: We've filed a motion to deem
15 admitted the request for admissions that we had sent
16 the Department of Justice. And through that request
17 -- I don't know if the Court is familiar with what
18 happened. We'd sent a request for admissions, along
19 with supporting documentation to the Department of
20 Justice as well as some stipulations.
21 The Department of Justice indicated that
22 they were going to, instead of them stipulating to
23 various things, eventually they decided not to
24 stipulate and indicated they would then respond to our
25 request for admissions. They never responded to the
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1 request for admissions. That deadline has long gone
2 now. I've included documentation in my brief on that
3 issue and sent along the rules we would -- that our
4 request for admission to be deemed admitted and there
5 are facts in the summary motion that are based on
6 those requests for admissions be deemed admitted as
7 well.
8 THE COURT: We certainly have your motion
9 before us.
10 MR. EDWARDS: So I wanted to know if the
11 Court -- I didn't go into necessarily everything with
12 respect to takings in the initial phase and I wanted
13 to know if the Court had any more questions about
14 takings?
15 THE COURT: That I think I understand. I
16 definitely get the message there.
17 MR. EDWARDS: One thing I wanted to bring to
18 the Court's attention with respect to the government
19 and actually being a taking. This was dicta from the
20 United Nuclear case I cited in my brief. I failed to
21 mentioned these cases in my brief, but in the United
22 Nuclear case, it identifies several cases from
23 different Circuits wherein government inaction
24 constitute a taking, Urbanrzadora Versi, Inc. v.
25 Reyes, 701 Fed. 2nd, 993. That's a First Circuit
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1 Case, Hernandez v. Lafayette, 643 Fed. 2nd, 1188.
2 It's a Fifth Circuit case, Rogan v. Bensalem
3 Township, which is a 616 Fed. 2nd, 680, Third Circuit
4 case and the Amen v. Dearborn, 718, Fed. 2nd, 789,
5 Sixth Circuit case, but those are not cited in my
6 brief and I'd like to bring those to the Court's
7 attention.
8 THE COURT: Thank you.
9 MR. EDWARDS: And then I wanted to make one
10 more argument with respect to takings. Very brief,
11 Your Honor. And that is, is that I think that the
12 taking clause in effect in this instance acts as a
13 check and balance of the legislative power versus the
14 executive power. That in the instance where the
15 Executive Branch fails to implement a mandatory
16 legislative act it creates exposure to the federal
17 government, financial exposure, and that's something
18 that can be an issue in election.
19 The Federal Reserve said that the federal
20 government is unnecessarily exposed itself to
21 significant liability they can vote against the people
22 in the Executive Branch. As a result, it puts
23 pressure on the Executive Branch to follow the
24 mandates of Congress and that is yet another reason
25 why I think that the takings claim is an important
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1 issue in a case where a congressional mandate isn't
2 followed. Thank you, Your Honor.
3 THE COURT: Thank you. Ms. Schwarz?
4 MR. THURMAN: Your Honor.
5 THE COURT: Yes.
6 MR. THURMAN: Creighton Thurman. I
7 represent two other families of Group B people that
8 I'd like to address the Court on an area that hasn't
9 been addressed.
10 THE COURT: All right, Mr. Thurman.
11 MR. THURMAN: Thank you, Your Honor.
12 THE COURT: I'm sorry. I wasn't aware you
13 were here. Go ahead.
14 MR. THURMAN: I didn't plan on speaking. I
15 had hoped that they would cover this in the Group B
16 section, but I have two families that represent the
17 mixed blood portion of the Group B statement where in
18 the final Appropriations Act it includes individuals
19 of mixed blood. And as we know through the censuses
20 that the Court has presumed to be a presumptive basis
21 for going forward, the mixed bloods do not appear.
22 My two families actually can trace their
23 ancestors to being part or around during the 1862
24 uprising. One of my families their ancestor was
25 actually taken prisoner and one of the individuals
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1 released at Camp Release.
2 My other family they're descendants of the
3 Myricks. Actually, Mary Myrica was a baby at the time
4 and her father was killed in the 1862 uprising. That
5 child later married Reverend Henman, which we have
6 heard so much about in his involvement, and they had a
7 child who doesn't appear until some of the subsequent
8 lists that are listed in the Group B exhibits that
9 have been placed before this Court.
10 So I would just ask that the Court consider
11 the exhibits, particularly as they provide information
12 towards the mixed bloods that the congressional acts,
13 even though they had not mentioned them until he last
14 Appropriation Act, I believe Congress intended them to
15 be a beneficiary class as well because during the 1862
16 uprising the people that were married to white
17 settlers, predominately in my research for my clients
18 the mothers have all been of Native American descents
19 married to white men.
20 That particularly with the Myrick, given the
21 fact that her husband was the individual that said
22 that they can let them eat grass and was savagely
23 murdered or killed during the uprising, it would be
24 understandable why she would not want to come forward
25 and be part of the list as to fearing reprisals or
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1 repudiation by her people.
2 So therefore, Your Honor, I would like the
3 Court not to forget that there are mixed bloods
4 involved and that they do not appear on any census
5 until those later censuses, as indicated in the
6 Group B documents, Your Honor. Thank you for your
7 time.
8 THE COURT: No, thank you.
9 All right, Ms. Schwarz?
10 MS. SCHWARZ: I don't really have much to
11 add to everything that's been said and what we said
12 before, but other than to set some clarification on
13 some of the historical claims that have been raised
14 and how that has impacted how the Department of
15 Interior has administered the Appropriation Acts
16 funds.
17 First, the census of 1886 was originally
18 taken because of the Indians Appropriations Act of
19 1884. Pursuant to that Act, every agency was directed
20 to take a manual census of those Indians and land and
21 other things that were being administered and things
22 that were under the oversight of the agency. So as
23 part of that, Mr. McCloud started his census, which
24 took several years to do.
25 In terms of the Appropriations Act, again,
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1 the Appropriations Act language is different than that
2 of the 1863. And interpreting what Congress set out,
3 the first one of 1888 was full blooded Mdewakanton and
4 it states on May 20, 1886, and severed their Tribal
5 relations.
6 The reason for that particular date was to
7 prevent others who had been residing at different
8 agencies who had received government benefits at
9 different places, such as the Santee, to prevent
10 anyone from trying to relocate back to the state. the
11 original date that was chosen was actually
12 October 1, 1883.
13 That's a date by which you had to be in
14 Minnesota, but Representative McDonald of Minnesota
15 when he learned of that date he had -- with the
16 Commissioner of Indian Affairs because he had
17 specifically requested that May 20, 1886, be chosen to
18 make sure that an Indian -- that (Away from mic.) who
19 was also included in any of the benefits of the
20 appropriations because Sister -- was not on Hinton's
21 list.
22 And then there is -- correspondence between
23 Special Agent Robb who was assigned to the Minnesota
24 lands. The Commissioner of Indian Affairs in which
25 Special Agent Robb is directed that Mdewakanton share
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1 in the money who had resided at Santee agency or any
2 other Sioux reservation, other than receiving benefits
3 from the government at such base.
4 And then in 1889, that was the appropriation
5 language that was changed to have full blood
6 Mdewakanton in Minnesota census May 20, 1886, or who
7 were moving to the state that date and resided in
8 Minnesota and who have severed their Tribal relations.
9 And the 1890 Appropriation Act was the same as 1889,
10 but both full and mixed bloods.
11 I would say that Mr. Kaardal and the other
12 groups from -- it was a very difficult time for --
13 Lower Mdewakanton.
14 (Electronic interference.)
15 And the -- the Secretary of the Interior --
16 rolls and he used those rolls as a basis for how they
17 would allocate the funds, Department of Interior's
18 position that that is the basis on which any of the
19 present funds that were stipulated to accomplish --
20 distributed, based on those two laws.
21 If the Court deem that that other list be
22 interpreted -- and we -- that in our response to the
23 judicial notice that was given to all of that.
24 THE COURT: Is there a change, Ms. Schwarz,
25 in the criteria that were used to prepare or derive
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1 the lists between the initial effort? Was that really
2 full bloods rather than mixed bloods, and what
3 happened with the mixed bloods?
4 MS. SCHWARZ: Your Honor, it was my
5 understanding, based on what I read and the reports
6 that there were some mixed bloods that were included.
7 There was correspondence back and forth between -- not
8 Henman because he was -- Special Agent and the
9 Secretary of Interior about the difficulties of trying
10 to ascertain who is a full blood, who is a mixed
11 blood. Who had been present on this date. Who had
12 been in the process of removing to the state on May
13 20, 1886. And there is no definitive answer, other
14 than based on what they had at their disposal. The
15 rolls were deemed to be appropriate and that's what
16 decisions were based upon.
17 THE COURT: Okay.
18 MS. SCHWARZ: I won't get into the --because
19 the Nuclear we've briefed in our reply and so I feel
20 that this is not -- in terms of the request to admit
21 that got mixed up with the stipulations. But in going
22 through the request of admissions there is nothing in
23 there that -- there is no fact that definitively
24 states -- I'm not sure how to best say it. To the
25 extent that the request to admit are to the opposite
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1 facts of eligibility, none of the requests state that.
2 They're basically based on this document is this.
3 This document is that. This person is this person.
4 That person descended from that person. And we have
5 no issue with that.
6 THE COURT: So the inferences to be drawn
7 from that. Thank you. Mr. Kaardal?
8 MR. KAARDAL: Your Honor, our research
9 indicates that there were a number of annual censuses
10 done in 1886 at Santee and at the other reservations.
11 And if the Court hasn't seen, we do have one of the
12 land certificates of Santee, if the Court hasn't
13 looked at that on page 225. And this states that the
14 certified and -- and Theresa Campbell, a member of of
15 the Santee Sioux band of Indians having signified a
16 willingness to adopt the -- culture receive a lot and
17 land for that purpose as provided for in the first
18 section of an act of Congress approved March 3, 1863
19 entitled An Act to Removal System, Lofton
20 Mdewakanton -- the Sioux and Dakota Indians. So that
21 was in 1885.
22 We have 80-acre allotments at Santee on this
23 March 1863 Act and 1885, which is also consistent with
24 my presentation. But also in the supplemental
25 appendix we have examples of four or five land
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1 patents, beginning at supplemental appendix 661 and
2 these are land patents where land is being issued to
3 Dakota or Sioux half breeds, based on scrip that was
4 previously provided.
5 So under apparently an 1854 Act, an
6 mandatory act in 1854, based on this document, half
7 breeds were provided for with scrip, which were later
8 redeemed and some of these land certificates are as
9 late as the 1920s and 1930s. So the fulfillment of
10 the promise of the scrip wasn't made for some time
11 later.
12 So the point being that one thing that
13 hasn't been mentioned is that the census were done and
14 it was discovered through the census and a collection
15 of data that all these people that had move to the
16 Dakota territories had received 80 acres. The half
17 breeds had received the scrip to receive 80 acres
18 more. Some of those bands are for 160 acres. And so
19 the people who hadn't received any land then would be
20 these Loyal Mdewakanton present in Minnesota in 1886.
21 We also agree the date was delayed so that
22 Native Americans would have notice that they can come
23 back to Minnesota and get some land. So the removal
24 provision was set there. And so the original date was
25 1883 and then it was set to 1886. Removal language is
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1 in the statute and the supplement was done 1889. So
2 that would appear to be six years notice if you wanted
3 to get land in Minnesota.
4 Now the exhibit that I indicated before the
5 government was issuing at Santee in 1885 allotment of
6 80 acres to lineal descendants of Minnesota Dakotas.
7 And so it seemed like you had a choice. You had a
8 choice of getting land there or coming back to
9 Minnesota.
10 Our complaint in this case is that our
11 clients didn't get 80 acres. Now Mr. Montana said
12 some of your people are too young, not their parents
13 and grandparents. And that's arguing far too broadly
14 because the idea of the land was that it was supposed
15 to be inherited by your heirs forever. So the lineal
16 descendants would have been entitled to acreage.
17 And the complaint, and I understand that
18 they're quibbling about the 21,120 acre number, but
19 the point is the government hasn't produced evidence
20 that too little or too big a number. We're making an
21 argument as successors with interest and that's the
22 number. I mean it's too late now to be saying 50 or
23 60. I mean Camp Release, as we heard, the census
24 included many more than that and so you have lots of
25 people exerting effort in the friendly camp of Camp
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1 Release helping.
2 Now it gets back to the difficulty to
3 administer and possibility point that I've already
4 discussed, so I won't cover that.
5 I guess that's all my points, Your Honor, on
6 entitlement.
7 THE COURT: All right. Thank you.
8 Mr. Zephier, do you have something further?
9 MR. ZEPHIER: I don't think I do, Your
10 Honor.
11 THE COURT: Mr. Edwards?
12 MR. EDWARDS: Nothing further, Your Honor.
13 THE COURT: Okay. Let's take up the last
14 topic.
15 Obviously, if there is a favorable judgment,
16 there is going to have to be a distribution plan.
17 What mechanism do we generate to provide ultimately
18 for a distribution plan?
19 Yes, Mr. Edwards?
20 MR. EDWARDS: Your Honor, I just wanted to
21 point out that I would think we would want to have a
22 damages hearing, look at the Group B plans for it and
23 expert witnesses together to testify about it.
24 THE COURT: I want to take this a step at a
25 time. The first thing I would propose to deal with is
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1 the agreed amount of funds. And that's what the Court
2 means with respect to the distribution plan. The
3 damages is a different matter because that depends on
4 resolution of some legal as well as factual issues and
5 we haven't crossed those bridges yet.
6 But we have crossed the bridge of dealing
7 with the whatever it is -- $673,944. Now we're
8 obviously going to need a distribution plan for that
9 amount. How do we set up a mechanism to do it. Have
10 you thought about that at all, Mr. Kaardal?
11 MR. KAARDAL: Yes, Your Honor.
12 I think as a leader of Group A that we would
13 coordinate a filing of the Group A Plaintiffs to the
14 extent they wanted to cooperate and then we've already
15 submitted the genealogical information. So it would
16 be a proposed order, I guess. And then the government
17 would have a certain amount of time to object to
18 certain people and then I guess we'd bring the dispute
19 to the Court.
20 THE COURT: The Court had in mind something
21 a little different. Let's just test this. We don't
22 have an entity, necessarily, to serve as base, if you
23 will, for a distribution plan. The Court had in mind
24 appointing somebody from the Group A Plaintiffs' group
25 and the Department of Interior to be
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1 co-administrators.
2 MR. KAARDAL: I'd be glad to be a
3 co-administrator.
4 THE COURT: Ms. Schwarz, what do you think
5 about that? We're just talking about Group A.
6 MS. SCHWARZ: In terms of -- obviously I
7 would have to speak with the Department of Interior,
8 but given the history that we've had with other
9 litigations the problem is that the Minnesota office
10 at the BIA isn't --
11 THE COURT: I'd thought about that, but I am
12 pretty reluctant to tell other people what to do, if I
13 don't have to. And so that's why I put it more
14 generally. That's one of the reasons the Court asked
15 whether you still have an office in the
16 Minneapolis/St. Paul area.
17 MS. SCHWARZ: Yes. To the Jessie Short
18 litigation that I previously -- because the land
19 claims, most of the claims are located in California,
20 so it would be the California office BIA that would --
21 to determine who was eligible because they have most
22 familiarity with the documents. In this case in
23 dealing with the communities on the previous
24 assignment would be the Minneapolis office.
25 THE COURT: That's almost what I had in
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1 mind, or something like that is what I had in mind.
2 That seemed a reasonable way to proceed. Now Group B
3 is in a completely different state. We don't
4 necessarily have any agreement at all on amounts or
5 anything else.
6 Let me ask another somewhat reaching
7 question. Would it be necessary to have a
8 distribution plan in hand before issuing a judgment
9 under 54(b)?
10 MR. MOHRMAN: By 54(b), do you mean you're
11 going to include that language on some partial
12 judgment rather than the whole case?
13 THE COURT: 54 is sometimes a useful
14 provision and sometimes not.
15 MR. MOHRMAN: That's the one where you can
16 enter partial judgment in the case and make it
17 appealable right away.
18 THE COURT: That's exactly right because
19 24(b) covers, among other things, judgment on multiple
20 claims or involving multiple parties. That's one of
21 the reasons why it's a possibility -- I'm not saying
22 it's going to happen because we haven't thought this
23 all the way through. But the Group A and the Group B
24 people stand on a different footing. And maybe, I
25 don't know, we'll have to decide whether they're
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1 involved in different causes of actions or different
2 claims. But a possibility might be to separate the
3 two and to move the Group A forward on a somewhat
4 faster track. I don't know.
5 MS. SCHWARZ: I'm sorry my voice doesn't
6 carry as well as everybody else's. The only issue I
7 would say with the distribution plan is that we've
8 stipulated to a finite amount. So to the extent that
9 it's going to Group A and Group B, if it just went to
10 Group A we wouldn't know how much to hold back for
11 Group B in terms of distributing --
12 THE COURT: The Group B damages, as I've
13 heard the case -- one of the reasons I'm exploring
14 this is the Group B damages would be set on a
15 different basis. Now some of them would overlap. You
16 would have Group A claimants also involved with the
17 same as Group B, and some not. And the Court will
18 have to sort that out.
19 MS. SCHWARZ: So by damages, because it's my
20 understanding that for Group A and Group B just as to
21 -- we're just talking about the stipulated amounts?
22 THE COURT: What I'm saying is the Court
23 will have to decide the extent to which Group B
24 persons fit within Loyal Mdewakantons for the purposes
25 of the stipulated amount. Once the Court does that,
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1 though, then we have an amount that can be split once
2 the eligibility criteria are determined. And I'm not
3 sure it's necessary to do more than to specify the
4 eligibility criteria and the amount of money and not
5 get into the distribution plan itself. That's what
6 I'm driving at.
7 MS. SCHWARZ: Okay.
8 THE COURT: Now to me the 1863 claims are
9 different. I see nods. I'm sorry?
10 MS. SCHWARZ: The government agrees.
11 THE COURT: Mr. Kaardal?
12 MR. KAARDAL: Yes, I think (Away from mic.)
13 MR. MOHRMAN: Your Honor?
14 THE COURT: Yes, Mr. Mohrman?
15 MR. MOHRMAN: I'd mentioned Mr. Kaardal. I
16 wonder if it might not be a bad idea to give the
17 parties four days, maybe Tuesday of next week to
18 submit a letter to the Court on this.
19 THE COURT: Not a letter. The Court does
20 not take letters.
21 MR. MOHRMAN: I'm sorry. I forgot.
22 THE COURT: Notice or joint status reports.
23 Yes.
24 MR. MOHRMAN: There are so many
25 contingencies - that I'd like to think about the
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1 ramifications of what you're suggesting.
2 THE COURT: The thing of it is there are
3 enough moving parts that the Court is not sure itself.
4 It's just that we don't need any more interlocutory
5 appeals. We need to move forward a final resolution
6 of some of these issues. And I realize that the Court
7 will hardly have the last word on these subjects and
8 what I'm trying to do is find an logical and I guess
9 fair and reasonable -- this Court always believes in
10 fundamental fairness and I'm trying to find a way to
11 move this forward without doing damage to anybody's
12 position. That's all.
13 Now if you want to get together and you want
14 to submit a joint status report by the end of next
15 week, but we'll see. Whatever you can do, you can do.
16 MR. MOHRMAN: I just don't want to opine --
17 have us opine off the top of our heads right now on
18 something that's --
19 THE COURT: No, I understand.
20 MR. MOHRMAN: May we have a couple of days
21 to think about this.
22 THE COURT: Sure. I tried to give you at
23 least a few hours to think about it.
24 (Laughter.)
25 THE COURT: The filings were just coming in
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1 here within the last several days.
2 MS. SCHWARZ: I have until at least
3 Wednesday.
4 THE COURT: You have what?
5 MS. SCHWARZ: Until at least Wednesday.
6 THE COURT: I wouldn't be too sure of that.
7 You never know about these things. I could tell you a
8 story or so myself, but I won't.
9 (Laughter.)
10 THE COURT: This is not your first child.
11 No, I understand. All right, we'll leave that aside.
12 If you have thoughts and you can get
13 together and put those thoughts in, if you would
14 please do it by next Friday, the 20th, that would be
15 appreciated. Any help you can give actually would be
16 appreciated. I'm sorry this took so long today. It's
17 probably not a surprise. We do the best we can.
18 Anything further that we should consider,
19 Mr. Kaardal?
20 MR. KAARDAL: No, Your Honor.
21 THE COURT: All right, Mr. Zephier,
22 Mr. Edwards, Mr. Thurman, Mr. Hogan?
23 ALL PARTIES: No, Your Honor.
24 THE COURT: Okay, Ms. Schwarz?
25 MS. SCHWARZ: No, Your Honor.
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1 THE COURT: The Court appreciates everything
2 that you've done so far in this case and appreciates
3 your patience. We will try to be just as patient and
4 just as careful. Thank you very much.
5 THE CLERK: All rise.
6 (Whereupon, at 3:10 p.m., the hearing in the
7 above-entitled matter was concluded.)
8 //
9 //
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11 //
12 //
13 //
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18 //
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23 //
24 //
25 //
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REPORTER'S CERTIFICATE
DOCKET NO.: 03-2684L & 01-568L
CASE TITLE: Sheldon Peters Wolfchild, et al. v. USA
HEARING DATE: May 13, 2011
LOCATION: Washington, D.C.
I hereby certify that the proceedings and
evidence are contained fully and accurately on the
tapes and notes reported by me at the hearing in the
above case before the United States Court of Federal
Claims.
Date: May 13, 2011
David W. Jones
Official Reporter
Heritage Reporting Corporation
Suite 600
1220 L Street, N.W.
Washington, D.C. 20005-4018
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