Erick G. Kaardal WEB Copies of posts and links

[mdenney]

Erick G. Kaardal WEB and Copies of posts and links 2 of 2


Dates start from November 2, 2012 to ?




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Notes by
Erick G. Kaardal


November 2, 2012

Dear all:

I have added a few links to documents including objections to the Department's October 1, 2012 proposed preliminary plan filed with the U.S. Court of Federal Claims.

In the U.S. Court of Appeals for the Federal Circuit, we are waiting on the government's response appellate brief.

Best regards.

egk


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COFC Post-Judgment Filings

•Department of the Interior October 1, 2012 Proposed Preliminary Plan


www.mklaw.com/documents/WolfchildExA.pdf

[mdenney]

•Objections and Motion of Wolfchild Plaintiffs for Further Proceedings

Copied from link below-

www.mklaw.com/mdewakanton.htm


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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________
SHELDON PETER WOLFCHILD, et al., )
)
)
Plaintiff, )
)
v. ) Case No. 03-2684L and
) Case No. 01-568L (consolidated)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________ )
Wolfchild Plaintiffs’ Objection to Department’s October 1, 2012 Action on Remand and Motion for Further Proceedings Under Rule 52.2(f) (Corrected)
i
TABLE OF CONTENTS
Page
Questions Presented.............................................................................................1
Statement of the Case ..........................................................................................2
Argument .............................................................................................................4
I. Wolfchild Plaintiffs Object to October 1, 2012 Action of Department ...4
A. Department’s Proposed Eligibility Criteria for the Post-Judgment Roll – October 1, 2012 .......................................................................4
B. Wolfchild Plaintiffs’ Proposed Eligibility Criteria for the Post- Judgment Roll.....................................................................................5
C. Index to Appendix ..............................................................................7
II. The Department’s October 1st Publication Appears to Be Retaliation Against the 1886 Mdewakanton Group................................7
III. Further CFC Proceedings are Warranted Because, After Nine Years of Litigation, the Department’s Post-Judgment Proceedings Must Be Consistent with the Federal Circuit Opinion, the CFC Judgment and Free of SMSC Influence/Retaliation Against the 1886 Mdewakanton Group......................................................................................................10
IV. The Court Should Initiate Further Proceedings.....................................12
Conclusion .........................................................................................................15
ii
TABLE OF AUTHORITIES
Page
Cases
Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422 (8th Cir. 1986) ................................................................ 2, 7, 8, 9
Navajo Tribe of Indians v. United States 601 F.2d 536 (Ct.Cl.1979)…………11
Newman Marchive Partnership, Inc. v. Hightower, 349 Fed. Appx. 963 (5th Cir. 2009) ................................................................ 8, 9
Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) ................2
United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) ............................................2
Wolfchild v. United States, 101 Fed. Cl. 54 (Fed. Cl. Aug. 5, 2011) ................11
Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009). ............................10
Other Authorities
Federal Register, Vol. 77, No. 190, p. 59963-59967 (October 1, 2012).............2
1
QUESTIONS PRESENTED
This case currently involves post-remand proceedings. Rule 52.2(f) provides:
(f) Post-Remand Proceedings.
(1) Notice. Within 30 days after the filing of the final decision or other action on remand, each party must file with the clerk and serve on each adverse party a notice stating: (A) whether the final decision or other action on remand affords a satisfactory basis for disposition of the case; or (B) whether further proceedings before the court are required and, if so, the nature of such proceedings.
The Plaintiffs believe further proceedings are required, and move that the Court conduct them, to determine the following issues:
(1) Call for information to the Department of the Interior and to the Department of Justice under 28 U.S.C. § 2507(a) and further proceedings, if any, to determine who wrote the October 1, 2012 notice, what support the Departments have for its propositions, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists by communications with the government have improperly interfered with the post-judgment remand proceedings;
(2) Interpret the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act; and
(3) Adjudicate the legality of the Department’s October 1, 2012 action that the 1886 Mdewakanton Group (called loyal Mdewakanton in the October 1, 2012 publication) include individuals who descend from a person on an Indian Land Certificate (1905-1980), 1891-93 and 1895-98 Birch Coulee censuses, 1899 McLauglin Roll and misidentified “1917 Census of Mdewakanton Sioux Indians.”
The Plaintiffs also request the Court to enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the Court completes its proceedings.
2
STATEMENT OF THE CASE
The Wolfchild Plaintiffs move pursuant to RCFC Rule 52.2(f) for further CFC proceedings because it objects to the Department’s eligibility criteria published on October 1, 2012 in the Federal Register.1 The Department’s eligibility criteria plainly contradict the Federal Circuit opinion and CFC’s Rule 54(b) judgment.
Moreover, the Department’s October 1st publication appears to be retaliation by the government based on the Wolfchild Plaintiffs’ status as the 1886 Mdewakanton Group claiming entitlement to lands and monetary benefits under the 1863 Acts and 1888-1890 Appropriation Acts. It is well-established that the right to petition the courts is a fundamental constitutional right under the First Amendment. The Supreme Court has recognized this, noting “that the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights,’” United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967), and that it has “a sanctity and a sanction not permitting dubious intrusions,” Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945). As an aspect of the First Amendment right to petition, the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values.” Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427 (8th Cir. 1986) (internal footnote omitted). In apparent retaliation, the Department’s October 1st publication violated the Federal Circuit opinion and CFC order because the Department wanted to re-define the 1886 Mdewakanton
1 Federal Register, Vol. 77, No. 190, p. 59963-59967 (October 1, 2012).
3
Group – a clear retaliation against the 1886 Mdewakanton Group which is clearly exclusively entitled to the CFC judgment.
The government took its illegitimate eligibility criteria position in the October 1st publication to extend the litigation and force settlement. There is no legal justification for the government’s illegitimate position. It was retaliation.
Notably, the Department’s post-judgment eligibility criteria may have been produced in collaboration with the Shakopee Mdewakanton Sioux Community (SMSC) and their attorneys, representatives and lobbyists. After all, SMSC and the other communities would benefit from weakening or diluting the concept of the 1886 Mdewakanton Group being entitled to land and benefits in Minnesota. The October 1st publication, a governmental litigation tactic, creates an additional, illegitimate hurdle for the 1886 Mdewakanton Group to demonstrate its tribal status under the Indian Nonintercourse Act and Indian Reorganization Act.
If so, the Department’s actions would be consistent with a pattern of collusion between SMSC and the Department since 1969 and consistent with SMSC’s patterns of interference with Plaintiffs’ rights in this case – all at great detriment to the 1886 Mdewakanton Group. If so, this type of interference by SMSC in the post-judgment remand proceedings, and the collusion with the Department, is an interference of justice. This interference may involve all the communities, the Department of the Interior, the Department of Justice, several law firms and attorneys. Simply put, it’s the proverbial last straw that the SMSC appears to be “gaming” the Wolfchild Plaintiffs’ post-judgment remand proceedings. Under the facts and circumstances, the situation requires an inquiry
4
into such illicit collaboration between the government and interested non-parties during the pre-comment period.
ARGUMENT
For the following reasons, the Plaintiffs’ requested relief described above should be granted. Under RCFC Rule 52.2(f), the objection is timely because it was filed within 30 days after the agency’s post-remand action which occurred on October 1, 2012.
I. WOLFCHILD PLAINTIFFS OBJECT TO OCTOBER 1, 2012 ACTION OF DEPARTMENT.
The Wolfchild Plaintiffs object to the October 1, 2012 action of the Department and propose a substitute eligibility criteria. The objection is timely because it is filed within 30 days of the action taken after remand.
A. Department’s Proposed Eligibility Criteria for the Post-Judgment Roll – October 1, 2012
The Department on October 1, 2012 published in the Federal Register, Vol 77, No. 190, page 59963, a “Preliminary Plan for Distribution of Judgment Funds to the Loyal Mdewakantons.” In the October 1st publication, the Department published the following proposed eligibility criteria for the judgment roll:
PROPOSED FINDING ON CRITERIA FOR A “LOYAL MDEWAKANTON” ELIGIBLE TO RECEIVE A REWARD
The Appropriations Acts defined the loyal Mdewakantons and intended beneficiaries of the Act as (1) Indians in Minnesota, belonging to the Mdewakanton Band of Sioux Indians, (2) who resided in the state on May 20, 1886, or were in the process or removing to Minnesota, and (3) who have severed their tribal relations. A review of Interior Department
5
memoranda, correspondence and administrative determinations dating from 1886 through 1982 shows these as the criteria consistently applied in making or evaluating assignments for the 1886 Lands. Because the funds that form the basis of the proceeds in this case derive from those lands, the same criteria should apply in determining who is eligible to share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees. We adopt these documents as probative of eligibility for 1886 Land Assignments and proxy for membership in the group of intended beneficiaries of the Appropriations Acts. Documents which have previously been sanctioned by the Department for this purpose are:
(1) The 1886 McLeod Census
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the Secretary of the Interior for the purpose of determining eligibility under the Appropriations Acts.
We determine that the class of persons eligible to participate in any final judgment of the Court of Federal Claims are those who can submit proof of descent from any individual listed on the documents adopted as probative above.
B. Wolfchild Plaintiffs’ Proposed Eligibility Criteria for the Post-Judgment Roll
The Wolfchild Plaintiffs in response hereby propose their own eligibility criteria for 1886 Mdewakanton Group membership for purposes of the judgment roll. The Wolfchild Plaintiffs’ proposal is a modification of the Department’s October 1st proposal. The Wolfchild Plaintiffs’ proposal is presented as follows in “track changes”:
6
PROPOSED FINDING ON CRITERIA FOR 1886 MDEWAKANTON GROUP MEMBERS A “LOYAL MDEWAKANTON” ELIGIBLE TO RECEIVE A REWARD
The Appropriations Acts defined the loyal Mdewakantons1886 Mdewakanton Group, and intended beneficiaries of the Acts, as lineal descendants of persons who satisfied the following requirements on May 20, 1886 (1) full-blood or mixed-blood Indians in Minnesota, belonging to the Mdewakanton Band of Sioux Indians on May 20, 1886, (2) who resided in the state on May 20, 1886, or were in the process or removing to Minnesota on May 20, 1886, and (3) who had have severed their tribal relations on May 20, 1886. A review of Interior Department memoranda, correspondence and administrative determinations dating from 1886 through 1982 shows these as the criteria consistently applied in making or evaluating assignments for the 1886 Lands. Because the funds that form the basis of the proceeds in this casejudgment derive from those reservation lands for the 1886 Mdewakanton Group, the same statutory criteria should apply in determining who is eligible to share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees. We adopt these documents as probative of eligibility for 1886 Land Assignments and proxy for membership in the group of intended beneficiaries of the Appropriations Acts. The following Ddocuments which have previously been are sanctioned by the Department and for this purpose list exclusively the 264 individuals who satisfy the statutory criteria: are:
(1) The 1886 McLeod Census; and
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the Secretary of the Interior for the purpose of determining eligibility under the Appropriations Acts.
We determine that the class of persons1886 Mdewakanton Group members eligible to participate in any the final judgment of the Court of Federal Claims are those who can submit proof of descent from any of the 264 individuals listed on the documents adopted as probative above.
7
C. Index to Appendix
The Wolfchild Plaintiffs, to assist the Court, have included an appendix. The Court in its previous opinions – and the Plaintiffs in their prior briefs -- have analyzed and reviewed these appendix documents. There is not time, nor space, to review them again here. That is left for the future proceedings. So, what is provided is the index to the appendix and the appendix itself. The appendix includes documents the Department proposes to rely on in its proposed finding and supplemental documents supporting the Wolfchild Plaintiffs’ objections outlined above.
For example, the Department appears to misrepresent at Federal Register, page 59966, that the 1923 Santee Sioux Roll, Act of March 4, 1917 and Court of Claims Judgment Roll (McLaughlin) is a “1917 Census of Mdewakanton Sioux.” The document itself shows the Department’s characterization of this judgment roll is inaccurate. Either the Department misunderstands the document or has intentionally misrepresented it.
II. The Department’s October 1st Publication Appears to Be Retaliation Against the 1886 Mdewakanton Group.
As mentioned above, the Department’s October 1st publication appears to be retaliation based on the Wolfchild Plaintiffs’ status as plaintiffs in this Court. The government is attempting to prolong the litigation and force settlement.
A federal agency, like a municipality, may not use legal threats or its position to pressure a plaintiff into settling a claim. See Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427 (8th Cir. 1986) (internal footnote omitted). In Harrison, the plaintiffs sued the Springdale Water and Sewer Commission for injunctive relief and
8
damages from a sewage discharge that damaged their blueberry crop. Id. at 1424. In response, the City of Springdale and its officers offered to buy plaintiffs’ property and threatened to condemn it if plaintiffs did not accept the offer. Id. The City followed through with its threats and brought a frivolous condemnation proceeding against the plaintiffs. Id. at 1424-25. The Eighth Circuit in Harrison noted that although that case presented “a somewhat novel context in which the constitutional right of access to the courts is implicated,” but that “[t]he applications of constitutional rights . . . do not remain static.” Id. at 1427. The court then held that the defendants’ “conspir[acy] to force [plaintiffs] to settle their lawsuit . . . by filing a frivolous condemnation counterclaim” was sufficient adverse action to state a claim for unconstitutional retaliation. Id. at 1428.
A government may not deny payment of judicial interest granted by a court in a prior action because the plaintiffs took the governmental agency to court. Newman Marchive Partnership, Inc. v. Hightower, 349 Fed. Appx. 963 (5th Cir. 2009). In Hightower, the plaintiffs sued the city of Shreveport, Louisiana in state court for unpaid balance on a construction contract. Id. at 964. A judge granted the plaintiffs an award including principal and judicial interest. Id. The city refused to pay the interest. Id. The Fifth Circuit found that the refusal to pay was unconstitutional retaliation against the plaintiffs for the exercise of their First Amendment rights. Id. at 966-67.
Notably, the Fifth Circuit in Hightower held that it was not even necessary that the adverse action required for pleading unconstitutional retaliation be the destruction of a vested right; rather, the action against the plaintiff must only be “de minimis” and only
9
with the “potential to chill the exercise of First Amendment rights” to meet the adverse action requirement. Id. The actual deprivation of a vested right goes even further than this low threshold requires.
Under the Harrison and Hightower standards, the government’s October 1st publication is similar calculating misconduct targeted towards current plaintiffs in court proceedings against the government. The October 1st publication was calculated to violate the Federal Circuit’s opinion and the CFC’s judgment to extend the litigation and force settlement. A person of ordinary firmness would “cave” at this moment rather than litigate with the Department an additional nine years – after the first nine years (2003-2012). Essentially, the government made an illicit, unconstitutional choice to violate the prior court orders and judgments in attempt to deprive the 1886 Mdewakanton Group of its vested rights.
The reason why the Department’s October 1st publication violated the Federal Circuit opinion and CFC order is because the Department wants to re-define the 1886 Mdewakanton Group and extend the litigation and force settlement. Also, SMSC and the government protect themselves by diluting the statutory definition of the 1886 Mdewakanton Group because it creates another hoop that the 1886 Mdewakanton Group needs to go through to prove tribal status under the Indian Nonintercourse Act and Indian Reorganization Act. Per the Federal Circuit’s opinion and the CFC judgment, the 1886 Mdewakanton Group is clearly exclusively entitled to the CFC judgment. The Department retaliated against the 1886 Mdewakanton Group by not adhering to the CFC judgment and Federal Circuit opinion in its October 1st publication.
10
III. Further CFC Proceedings are Warranted Because, After Nine Years of Litigation, the Department’s Post-Judgment Proceedings Must Be Consistent with the Federal Circuit Opinion, the CFC Judgment and Free of SMSC Influence/Retaliation Against the 1886 Mdewakanton Group.
After nine years of litigation, the original Wolfchild plaintiffs – which comprise the “1886 Mdewakanton Group” – are entitled to post-CFC judgment proceedings consistent with the Federal Circuit’s opinion, consistent with the CFC judgment and free of SMSC influence:
Contemporaneous documents make clear that the Secretary of the Interior considered himself bound by the terms of the statutes to reserve the usage of the 1886 lands for members of the particular beneficiary class (the 264 individuals determined by a contemporaneous Interior Department census to constitute the 1886 Mdewakantons), and that he did so by selecting assignees from within that group. Later, in the absence of any congressional direction as to the ultimate disposition of ownership interests in the lands, the Secretary selected successor assignees from the class of lineal descendants of those beneficiaries. In both instances, the Secretary held the property for the use and benefit of individuals selected from a defined class.
Wolfchild v. United States, 559 F.3d 1228, 1243 (Fed. Cir. 2009).
From the beginning of the litigation in 2003, the 1886 Mdewakanton Group has clearly stated two things. First, the current members of the 1886 Mdewakanton Group are lineal descendants of a persons who met the three requirements of the Appropriation Acts’ beneficiary definition on May 20, 1886: (1) full-blood or mixed-blood Indian in Minnesota, belonging to Mdewakanton Band of Sioux Indians, on May 20, 1886; (2) who resided in state on May 20, 1886 or were in the process of removing to Minnesota on May 20, 1886; and (3) who severed tribal relations. Second, the only governmental lists listing the 1886 Mdewakanton Group are the 1886 McLeod Census and the 1889 Henton
11
Supplemental Census – listing 264 beneficiaries. Today, the 1886 Mdewakanton group are the lineal descendants of those 264 beneficiaries.
To the contrary, the Department of the Interior apparently erroneously seized on a part of this Court’s August 2011 opinion as an invitation to the Department to re-open the statutory interpretative issues which the Federal Circuit resolved and which pertain to this Court’s RCFC 54(b) final judgment. As this Court stated in its August 2011 opinion:
Because the court concludes that the Distribution Act applies here, the court will abstain from identifying the specific individual persons who qualify as lineal descendants of the loyal Mdewakanton. Identification of beneficiaries of the final judgment is within the purview of the Secretary of Interior under the Indian Judgment Distribution Act. See 25 U.S.C. §§ 1402(a), 1403. The court will likewise refrain from articulation of what specific criteria claimants must satisfy to prove their status, as all facets of this determination make up the Secretary's responsibilities under the Act. See id.29
Wolfchild v. United States, 101 Fed. Cl. 54, 86 (Fed. Cl. Aug. 5, 2011) (emphasis added), as corrected (Aug. 18, 2011), reconsideration denied, 101 Fed. Cl. 92 (Oct. 25, 2011). However, the Court never authorized the Department to take post-judgment actions which contradict the Federal Circuit’s opinion and the CFC’s own judgment:
Accordingly, the court will issue a remit, remand, and direction to the Secretary of the Interior to provide a report to the court within the time specified in 25 U.S.C. § 1402, submitting his or her “plan for the use and distribution of the funds” awarded to the lineal descendants of the loyal Mdewakanton, 25 U.S.C. § 1402(a). Upon receipt of the report, the court will entertain potential proceedings to review the report, as provided in RCFC 52.2(f). This disposition will enable the court to take the “necessary steps to insure the[ ] speedy determination” of the case, at least to the extent that any such determination is possible. Navajo Tribe of Indians v. United States, 601 F.2d 536, 540 (Ct.Cl.1979).
Wolfchild, 101 Fed. Cl. at 91. The October 1, 2012 Notice contradicts this Court’s opinions.
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Notably, one possible explanation for the Department’s erratic post-judgment conduct on October 1, 2012 is SMSC’s improper influence over the post-judgment remand process. It is an interference with justice if SMSC or its attorneys/ representatives/lobbyists have collaborated in any way with the Department of the Interior or Department of Justice during this period. If so, the Department’s actions would be consistent with a pattern of collusion between SMSC and the Department since 1969 and consistent with SMSC’s patterns of interference with Plaintiffs’ rights in this case – all at a great detriment to the 1886 Mdewakanton Group.
Under the facts and circumstances, the Department’s October 1st publication and the governmental processes relating thereto should be scrutinized by the Court. Not only do the administrative post-remand proceedings need to be impartial, they also need to have the appearance of impartiality.
IV.The Court Should Initiate Further Proceedings.
Under the facts and circumstances of the October 1st publication, the Court should order further proceedings.
Importantly, the Plaintiffs request a call for information to the Department of the Interior and the Department of Justice under 28 U.S.C. § 2507(a) and request further proceedings to determine who wrote the October 1st notice, what support the Departments have for their propositions in the October 1st publication, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists have improperly interfered with the post-judgment remand proceedings.
13
Moreover, the Department cannot factually support its positions in the October 1st publication. Many statements in the Proposed Finding contradict documents produced by the government in the nine years of litigation in this Court. For example:
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees.
The government either (1) has withheld these Departmental documents because, in response to the 2005 Call Order, the Department of the Interior produced no rolls of statutorily eligible individuals except the 1886-1889 censuses, or (2) has misrepresented that such documents with such purposes exist.
Now, the Department states over a 100 year period that it created “various rolls” of statutorily eligible individuals. Yet, the Department did not produce them in nine years of litigation. The Wolfchild Plaintiffs have spent nine years in litigation and the Department apparently withheld its documents and related arguments until after judgment was entered. So, the Court should now issue a second Call Order, so that the government produces its “various rolls of [statutorily] eligible individuals” (better later than never), if any (never).
Further proceedings would also include interpreting the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act. The October 1st publication relies heavily on a substantive interpretation of the “mixed blood” phrase to include persons on censuses subsequent to the 1886-1889 censuses. This tactic has been used by SMSC and the Department in the past to justify non-1886 Mdewakanton filling
14
out the membership at SMSC – and the concomitant, systematic exclusion of 1886 Mdewakanton there and at the other communities.
Further proceedings would also include adjudicating the legality of the Department’s October 1, 2012 action that 1886 Mdewakanton (called loyal Mdewakanton in the October 1, 2012 publication) include individuals who descend from a person on an Indian Land Certificate (1905-1980), 1917 McLaughlin Roll, 1891-93 and 1895-98 Birch Coulee censuses and 1899 McLaughlin Roll. None of these rolls should be used to determine whether an individual was or is a 1886 Mdewakanton group member.
The current members of the 1886 Mdewakanton Group are lineal descendants of a person who met the three requirements of the Appropriation Acts’ beneficiary definition on May 20, 1886: (1) full-blood or mixed-blood Indian in Minnesota, belonging to Mdewakanton Band of Sioux Indians, on May 20, 1886; (2) who resided in state on May 20, 1886 or were in the process of removing to Minnesota on May 20, 1886; and (3) who severed tribal relations. These lists, unlike the 1886 and 1889 censuses do not purport to list 1886 Mdewakanton Group members.
Similarly, rolls created before 1886 do not purport to list individuals who satisfy the statutory criteria in the 1888-1890 Appropriation Acts. So, pre-1886 rolls are not to be used to identify persons who meet the three statutory criteria.
The October 1st notice contains many errors. First, the 1886 McLeod Census and the 1889 Henton Supplemental Census have been adjudicated as the only Department documents listing exclusively individuals who meet all statutory criteria to be in the 1886
15
Mdewakanton Group. Second, the misidentified 1917 Census of Mdewakanton Sioux Indians, which is actually titled the 1923 Santee Sioux judgment roll, is a judgment roll for a different case. It is not a roll identifying individuals meeting the statutory criteria of the Appropriation Acts. Third, the Department was admittedly inconsistent in assigning Indian Land Certificates regarding 1886 lands to1886 Mdewakanton Group members. The Department was supposed to assign the 1886 Lands exclusively to 1886 Mdewakanton Group members. But, sometimes it did; sometimes it didn’t. Fourth, the Birch Cooley Censuses prepared by Robert Henton are not rolls identifying individuals meeting the statutory criteria of the Appropriation Acts. Fifth, the 1899 roll prepared by Inspector McLaughlin, which denotes which 1886 Mdewakanton group members had land assignments, is not a roll identifying individuals meeting the statutory criteria of the Appropriation Acts.
Finally, the Plaintiffs request the Court to enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the proceedings have been completed, if any.
CONCLUSION
For the foregoing reasons, the Court should grant the Plaintiffs’ motion for further proceedings. First, the Court should issue a call for information to the Department of the Interior and the Department of Justice under 28 U.S.C. § 2507(a) and conduct further proceedings to determine who wrote the October 1, 2012 notice, to analyze documents the Departments have to support their propositions, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists by communications have
16
improperly interfered with the post-judgment remand proceedings. Second, the Court should order further proceedings to interpret the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act. Third, the Court should order further proceedings to adjudicate the legality of the Department’s October 1, 2012 action that the 1886 Mdewakanton Group (called loyal Mdewakanton in the October 1, 2012 publication) includes individuals who descend from all persons on Indian Land Certificates (1905-1980), 1891-93 and 1895-98 Birch Coulee censuses, 1899 McLaughlin Roll and the misidentified “1917 Census of Mdewakanton Sioux Indians.” Fourth, the Court should enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the Court completes its proceedings.
Dated: October 31, 2012.
MOHRMAN & KAARDAL, P.A.
By: /s/Erick G. Kaardal__________
Erick G. Kaardal
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Telephone: [phone]
ATTORNEYS FOR WOLFCHILD PLAINTIFFS
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CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of October, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court through its ECF System and electronic notice was delivered to the parties entitled to receive notice.
Dated: October 31, 2012.
/s/Erick G. Kaardal
Erick G. Kaardal

[mdenney]

THis is where the Lead Attorney MOHRMAN & KARRDAL P.A website has removed old notes off web page by
Erick G. Kaardal

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


Minnesota Mdewakanton Dakota Oyate Litigation
Wolfchild, et al. v. United States




----------------------------------------



Notes by
Erick G. Kaardal


November 13, 2012

Dear all:

I have linked the newly-filed Brief of Appellees-Cross Appellants in the right hand column. As you can see, activity is occuring in both the trial court and appellate court. Please check this website for updates.

Sincerely,

egk

www.mklaw.com/mdewakanton.htm

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COFC Post-Judgment Filings


•Objections and Motion of Wolfchild Plaintiffs for Further Proceedings

www.mklaw.com/documents/RevisedObjectiontoDepartmentsOct.12012ActiononRemand103012Final.pdf

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________
SHELDON PETER WOLFCHILD, et al., )
)
)
Plaintiff, )
)
v. ) Case No. 03-2684L and
) Case No. 01-568L (consolidated)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________ )
Wolfchild Plaintiffs’ Objection to Department’s October 1, 2012 Action on Remand and Motion for Further Proceedings Under Rule 52.2(f) (Corrected)
i
TABLE OF CONTENTS
Page
Questions Presented.............................................................................................1
Statement of the Case ..........................................................................................2
Argument .............................................................................................................4
I. Wolfchild Plaintiffs Object to October 1, 2012 Action of Department ...4
A. Department’s Proposed Eligibility Criteria for the Post-Judgment Roll – October 1, 2012 .......................................................................4
B. Wolfchild Plaintiffs’ Proposed Eligibility Criteria for the Post- Judgment Roll.....................................................................................5
C. Index to Appendix ..............................................................................7
II. The Department’s October 1st Publication Appears to Be Retaliation Against the 1886 Mdewakanton Group................................7
III. Further CFC Proceedings are Warranted Because, After Nine Years of Litigation, the Department’s Post-Judgment Proceedings Must Be Consistent with the Federal Circuit Opinion, the CFC Judgment and Free of SMSC Influence/Retaliation Against the 1886 Mdewakanton Group......................................................................................................10
IV. The Court Should Initiate Further Proceedings.....................................12
Conclusion .........................................................................................................15
ii
TABLE OF AUTHORITIES
Page
Cases
Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422 (8th Cir. 1986) ................................................................ 2, 7, 8, 9
Navajo Tribe of Indians v. United States 601 F.2d 536 (Ct.Cl.1979)…………11
Newman Marchive Partnership, Inc. v. Hightower, 349 Fed. Appx. 963 (5th Cir. 2009) ................................................................ 8, 9
Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) ................2
United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) ............................................2
Wolfchild v. United States, 101 Fed. Cl. 54 (Fed. Cl. Aug. 5, 2011) ................11
Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009). ............................10
Other Authorities
Federal Register, Vol. 77, No. 190, p. 59963-59967 (October 1, 2012).............2
1
QUESTIONS PRESENTED
This case currently involves post-remand proceedings. Rule 52.2(f) provides:
(f) Post-Remand Proceedings.
(1) Notice. Within 30 days after the filing of the final decision or other action on remand, each party must file with the clerk and serve on each adverse party a notice stating: (A) whether the final decision or other action on remand affords a satisfactory basis for disposition of the case; or (B) whether further proceedings before the court are required and, if so, the nature of such proceedings.
The Plaintiffs believe further proceedings are required, and move that the Court conduct them, to determine the following issues:
(1) Call for information to the Department of the Interior and to the Department of Justice under 28 U.S.C. § 2507(a) and further proceedings, if any, to determine who wrote the October 1, 2012 notice, what support the Departments have for its propositions, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists by communications with the government have improperly interfered with the post-judgment remand proceedings;
(2) Interpret the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act; and
(3) Adjudicate the legality of the Department’s October 1, 2012 action that the 1886 Mdewakanton Group (called loyal Mdewakanton in the October 1, 2012 publication) include individuals who descend from a person on an Indian Land Certificate (1905-1980), 1891-93 and 1895-98 Birch Coulee censuses, 1899 McLauglin Roll and misidentified “1917 Census of Mdewakanton Sioux Indians.”
The Plaintiffs also request the Court to enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the Court completes its proceedings.
2
STATEMENT OF THE CASE
The Wolfchild Plaintiffs move pursuant to RCFC Rule 52.2(f) for further CFC proceedings because it objects to the Department’s eligibility criteria published on October 1, 2012 in the Federal Register.1 The Department’s eligibility criteria plainly contradict the Federal Circuit opinion and CFC’s Rule 54(b) judgment.
Moreover, the Department’s October 1st publication appears to be retaliation by the government based on the Wolfchild Plaintiffs’ status as the 1886 Mdewakanton Group claiming entitlement to lands and monetary benefits under the 1863 Acts and 1888-1890 Appropriation Acts. It is well-established that the right to petition the courts is a fundamental constitutional right under the First Amendment. The Supreme Court has recognized this, noting “that the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights,’” United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967), and that it has “a sanctity and a sanction not permitting dubious intrusions,” Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945). As an aspect of the First Amendment right to petition, the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values.” Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427 (8th Cir. 1986) (internal footnote omitted). In apparent retaliation, the Department’s October 1st publication violated the Federal Circuit opinion and CFC order because the Department wanted to re-define the 1886 Mdewakanton
1 Federal Register, Vol. 77, No. 190, p. 59963-59967 (October 1, 2012).
3
Group – a clear retaliation against the 1886 Mdewakanton Group which is clearly exclusively entitled to the CFC judgment.
The government took its illegitimate eligibility criteria position in the October 1st publication to extend the litigation and force settlement. There is no legal justification for the government’s illegitimate position. It was retaliation.
Notably, the Department’s post-judgment eligibility criteria may have been produced in collaboration with the Shakopee Mdewakanton Sioux Community (SMSC) and their attorneys, representatives and lobbyists. After all, SMSC and the other communities would benefit from weakening or diluting the concept of the 1886 Mdewakanton Group being entitled to land and benefits in Minnesota. The October 1st publication, a governmental litigation tactic, creates an additional, illegitimate hurdle for the 1886 Mdewakanton Group to demonstrate its tribal status under the Indian Nonintercourse Act and Indian Reorganization Act.
If so, the Department’s actions would be consistent with a pattern of collusion between SMSC and the Department since 1969 and consistent with SMSC’s patterns of interference with Plaintiffs’ rights in this case – all at great detriment to the 1886 Mdewakanton Group. If so, this type of interference by SMSC in the post-judgment remand proceedings, and the collusion with the Department, is an interference of justice. This interference may involve all the communities, the Department of the Interior, the Department of Justice, several law firms and attorneys. Simply put, it’s the proverbial last straw that the SMSC appears to be “gaming” the Wolfchild Plaintiffs’ post-judgment remand proceedings. Under the facts and circumstances, the situation requires an inquiry
4
into such illicit collaboration between the government and interested non-parties during the pre-comment period.
ARGUMENT
For the following reasons, the Plaintiffs’ requested relief described above should be granted. Under RCFC Rule 52.2(f), the objection is timely because it was filed within 30 days after the agency’s post-remand action which occurred on October 1, 2012.
I. WOLFCHILD PLAINTIFFS OBJECT TO OCTOBER 1, 2012 ACTION OF DEPARTMENT.
The Wolfchild Plaintiffs object to the October 1, 2012 action of the Department and propose a substitute eligibility criteria. The objection is timely because it is filed within 30 days of the action taken after remand.
A. Department’s Proposed Eligibility Criteria for the Post-Judgment Roll – October 1, 2012
The Department on October 1, 2012 published in the Federal Register, Vol 77, No. 190, page 59963, a “Preliminary Plan for Distribution of Judgment Funds to the Loyal Mdewakantons.” In the October 1st publication, the Department published the following proposed eligibility criteria for the judgment roll:
PROPOSED FINDING ON CRITERIA FOR A “LOYAL MDEWAKANTON” ELIGIBLE TO RECEIVE A REWARD
The Appropriations Acts defined the loyal Mdewakantons and intended beneficiaries of the Act as (1) Indians in Minnesota, belonging to the Mdewakanton Band of Sioux Indians, (2) who resided in the state on May 20, 1886, or were in the process or removing to Minnesota, and (3) who have severed their tribal relations. A review of Interior Department
5
memoranda, correspondence and administrative determinations dating from 1886 through 1982 shows these as the criteria consistently applied in making or evaluating assignments for the 1886 Lands. Because the funds that form the basis of the proceeds in this case derive from those lands, the same criteria should apply in determining who is eligible to share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees. We adopt these documents as probative of eligibility for 1886 Land Assignments and proxy for membership in the group of intended beneficiaries of the Appropriations Acts. Documents which have previously been sanctioned by the Department for this purpose are:
(1) The 1886 McLeod Census
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the Secretary of the Interior for the purpose of determining eligibility under the Appropriations Acts.
We determine that the class of persons eligible to participate in any final judgment of the Court of Federal Claims are those who can submit proof of descent from any individual listed on the documents adopted as probative above.
B. Wolfchild Plaintiffs’ Proposed Eligibility Criteria for the Post-Judgment Roll
The Wolfchild Plaintiffs in response hereby propose their own eligibility criteria for 1886 Mdewakanton Group membership for purposes of the judgment roll. The Wolfchild Plaintiffs’ proposal is a modification of the Department’s October 1st proposal. The Wolfchild Plaintiffs’ proposal is presented as follows in “track changes”:
6
PROPOSED FINDING ON CRITERIA FOR 1886 MDEWAKANTON GROUP MEMBERS A “LOYAL MDEWAKANTON” ELIGIBLE TO RECEIVE A REWARD
The Appropriations Acts defined the loyal Mdewakantons1886 Mdewakanton Group, and intended beneficiaries of the Acts, as lineal descendants of persons who satisfied the following requirements on May 20, 1886 (1) full-blood or mixed-blood Indians in Minnesota, belonging to the Mdewakanton Band of Sioux Indians on May 20, 1886, (2) who resided in the state on May 20, 1886, or were in the process or removing to Minnesota on May 20, 1886, and (3) who had have severed their tribal relations on May 20, 1886. A review of Interior Department memoranda, correspondence and administrative determinations dating from 1886 through 1982 shows these as the criteria consistently applied in making or evaluating assignments for the 1886 Lands. Because the funds that form the basis of the proceeds in this casejudgment derive from those reservation lands for the 1886 Mdewakanton Group, the same statutory criteria should apply in determining who is eligible to share in any funds awarded pursuant to the judgment.
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees. We adopt these documents as probative of eligibility for 1886 Land Assignments and proxy for membership in the group of intended beneficiaries of the Appropriations Acts. The following Ddocuments which have previously been are sanctioned by the Department and for this purpose list exclusively the 264 individuals who satisfy the statutory criteria: are:
(1) The 1886 McLeod Census; and
(2) The 1889 Henton Supplemental Census
(3) The 1917 McLaughlin Roll (with additional proof of Mdewakanton descent for persons appearing on that roll)
(4) Certificates assigning 1886 lands
We now add to this list of probative documents:
(5) the Birch Cooley Censuses prepared by Robert Henton; and
(6) the 1899 roll prepared by Inspector McLaughlin.
These additional rolls also were prepared at the direction of the Secretary of the Interior for the purpose of determining eligibility under the Appropriations Acts.
We determine that the class of persons1886 Mdewakanton Group members eligible to participate in any the final judgment of the Court of Federal Claims are those who can submit proof of descent from any of the 264 individuals listed on the documents adopted as probative above.
7
C. Index to Appendix
The Wolfchild Plaintiffs, to assist the Court, have included an appendix. The Court in its previous opinions – and the Plaintiffs in their prior briefs -- have analyzed and reviewed these appendix documents. There is not time, nor space, to review them again here. That is left for the future proceedings. So, what is provided is the index to the appendix and the appendix itself. The appendix includes documents the Department proposes to rely on in its proposed finding and supplemental documents supporting the Wolfchild Plaintiffs’ objections outlined above.
For example, the Department appears to misrepresent at Federal Register, page 59966, that the 1923 Santee Sioux Roll, Act of March 4, 1917 and Court of Claims Judgment Roll (McLaughlin) is a “1917 Census of Mdewakanton Sioux.” The document itself shows the Department’s characterization of this judgment roll is inaccurate. Either the Department misunderstands the document or has intentionally misrepresented it.
II. The Department’s October 1st Publication Appears to Be Retaliation Against the 1886 Mdewakanton Group.
As mentioned above, the Department’s October 1st publication appears to be retaliation based on the Wolfchild Plaintiffs’ status as plaintiffs in this Court. The government is attempting to prolong the litigation and force settlement.
A federal agency, like a municipality, may not use legal threats or its position to pressure a plaintiff into settling a claim. See Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1427 (8th Cir. 1986) (internal footnote omitted). In Harrison, the plaintiffs sued the Springdale Water and Sewer Commission for injunctive relief and
8
damages from a sewage discharge that damaged their blueberry crop. Id. at 1424. In response, the City of Springdale and its officers offered to buy plaintiffs’ property and threatened to condemn it if plaintiffs did not accept the offer. Id. The City followed through with its threats and brought a frivolous condemnation proceeding against the plaintiffs. Id. at 1424-25. The Eighth Circuit in Harrison noted that although that case presented “a somewhat novel context in which the constitutional right of access to the courts is implicated,” but that “[t]he applications of constitutional rights . . . do not remain static.” Id. at 1427. The court then held that the defendants’ “conspir[acy] to force [plaintiffs] to settle their lawsuit . . . by filing a frivolous condemnation counterclaim” was sufficient adverse action to state a claim for unconstitutional retaliation. Id. at 1428.
A government may not deny payment of judicial interest granted by a court in a prior action because the plaintiffs took the governmental agency to court. Newman Marchive Partnership, Inc. v. Hightower, 349 Fed. Appx. 963 (5th Cir. 2009). In Hightower, the plaintiffs sued the city of Shreveport, Louisiana in state court for unpaid balance on a construction contract. Id. at 964. A judge granted the plaintiffs an award including principal and judicial interest. Id. The city refused to pay the interest. Id. The Fifth Circuit found that the refusal to pay was unconstitutional retaliation against the plaintiffs for the exercise of their First Amendment rights. Id. at 966-67.
Notably, the Fifth Circuit in Hightower held that it was not even necessary that the adverse action required for pleading unconstitutional retaliation be the destruction of a vested right; rather, the action against the plaintiff must only be “de minimis” and only
9
with the “potential to chill the exercise of First Amendment rights” to meet the adverse action requirement. Id. The actual deprivation of a vested right goes even further than this low threshold requires.
Under the Harrison and Hightower standards, the government’s October 1st publication is similar calculating misconduct targeted towards current plaintiffs in court proceedings against the government. The October 1st publication was calculated to violate the Federal Circuit’s opinion and the CFC’s judgment to extend the litigation and force settlement. A person of ordinary firmness would “cave” at this moment rather than litigate with the Department an additional nine years – after the first nine years (2003-2012). Essentially, the government made an illicit, unconstitutional choice to violate the prior court orders and judgments in attempt to deprive the 1886 Mdewakanton Group of its vested rights.
The reason why the Department’s October 1st publication violated the Federal Circuit opinion and CFC order is because the Department wants to re-define the 1886 Mdewakanton Group and extend the litigation and force settlement. Also, SMSC and the government protect themselves by diluting the statutory definition of the 1886 Mdewakanton Group because it creates another hoop that the 1886 Mdewakanton Group needs to go through to prove tribal status under the Indian Nonintercourse Act and Indian Reorganization Act. Per the Federal Circuit’s opinion and the CFC judgment, the 1886 Mdewakanton Group is clearly exclusively entitled to the CFC judgment. The Department retaliated against the 1886 Mdewakanton Group by not adhering to the CFC judgment and Federal Circuit opinion in its October 1st publication.
10
III. Further CFC Proceedings are Warranted Because, After Nine Years of Litigation, the Department’s Post-Judgment Proceedings Must Be Consistent with the Federal Circuit Opinion, the CFC Judgment and Free of SMSC Influence/Retaliation Against the 1886 Mdewakanton Group.
After nine years of litigation, the original Wolfchild plaintiffs – which comprise the “1886 Mdewakanton Group” – are entitled to post-CFC judgment proceedings consistent with the Federal Circuit’s opinion, consistent with the CFC judgment and free of SMSC influence:
Contemporaneous documents make clear that the Secretary of the Interior considered himself bound by the terms of the statutes to reserve the usage of the 1886 lands for members of the particular beneficiary class (the 264 individuals determined by a contemporaneous Interior Department census to constitute the 1886 Mdewakantons), and that he did so by selecting assignees from within that group. Later, in the absence of any congressional direction as to the ultimate disposition of ownership interests in the lands, the Secretary selected successor assignees from the class of lineal descendants of those beneficiaries. In both instances, the Secretary held the property for the use and benefit of individuals selected from a defined class.
Wolfchild v. United States, 559 F.3d 1228, 1243 (Fed. Cir. 2009).
From the beginning of the litigation in 2003, the 1886 Mdewakanton Group has clearly stated two things. First, the current members of the 1886 Mdewakanton Group are lineal descendants of a persons who met the three requirements of the Appropriation Acts’ beneficiary definition on May 20, 1886: (1) full-blood or mixed-blood Indian in Minnesota, belonging to Mdewakanton Band of Sioux Indians, on May 20, 1886; (2) who resided in state on May 20, 1886 or were in the process of removing to Minnesota on May 20, 1886; and (3) who severed tribal relations. Second, the only governmental lists listing the 1886 Mdewakanton Group are the 1886 McLeod Census and the 1889 Henton
11
Supplemental Census – listing 264 beneficiaries. Today, the 1886 Mdewakanton group are the lineal descendants of those 264 beneficiaries.
To the contrary, the Department of the Interior apparently erroneously seized on a part of this Court’s August 2011 opinion as an invitation to the Department to re-open the statutory interpretative issues which the Federal Circuit resolved and which pertain to this Court’s RCFC 54(b) final judgment. As this Court stated in its August 2011 opinion:
Because the court concludes that the Distribution Act applies here, the court will abstain from identifying the specific individual persons who qualify as lineal descendants of the loyal Mdewakanton. Identification of beneficiaries of the final judgment is within the purview of the Secretary of Interior under the Indian Judgment Distribution Act. See 25 U.S.C. §§ 1402(a), 1403. The court will likewise refrain from articulation of what specific criteria claimants must satisfy to prove their status, as all facets of this determination make up the Secretary's responsibilities under the Act. See id.29
Wolfchild v. United States, 101 Fed. Cl. 54, 86 (Fed. Cl. Aug. 5, 2011) (emphasis added), as corrected (Aug. 18, 2011), reconsideration denied, 101 Fed. Cl. 92 (Oct. 25, 2011). However, the Court never authorized the Department to take post-judgment actions which contradict the Federal Circuit’s opinion and the CFC’s own judgment:
Accordingly, the court will issue a remit, remand, and direction to the Secretary of the Interior to provide a report to the court within the time specified in 25 U.S.C. § 1402, submitting his or her “plan for the use and distribution of the funds” awarded to the lineal descendants of the loyal Mdewakanton, 25 U.S.C. § 1402(a). Upon receipt of the report, the court will entertain potential proceedings to review the report, as provided in RCFC 52.2(f). This disposition will enable the court to take the “necessary steps to insure the[ ] speedy determination” of the case, at least to the extent that any such determination is possible. Navajo Tribe of Indians v. United States, 601 F.2d 536, 540 (Ct.Cl.1979).
Wolfchild, 101 Fed. Cl. at 91. The October 1, 2012 Notice contradicts this Court’s opinions.
12
Notably, one possible explanation for the Department’s erratic post-judgment conduct on October 1, 2012 is SMSC’s improper influence over the post-judgment remand process. It is an interference with justice if SMSC or its attorneys/ representatives/lobbyists have collaborated in any way with the Department of the Interior or Department of Justice during this period. If so, the Department’s actions would be consistent with a pattern of collusion between SMSC and the Department since 1969 and consistent with SMSC’s patterns of interference with Plaintiffs’ rights in this case – all at a great detriment to the 1886 Mdewakanton Group.
Under the facts and circumstances, the Department’s October 1st publication and the governmental processes relating thereto should be scrutinized by the Court. Not only do the administrative post-remand proceedings need to be impartial, they also need to have the appearance of impartiality.
IV.The Court Should Initiate Further Proceedings.
Under the facts and circumstances of the October 1st publication, the Court should order further proceedings.
Importantly, the Plaintiffs request a call for information to the Department of the Interior and the Department of Justice under 28 U.S.C. § 2507(a) and request further proceedings to determine who wrote the October 1st notice, what support the Departments have for their propositions in the October 1st publication, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists have improperly interfered with the post-judgment remand proceedings.
13
Moreover, the Department cannot factually support its positions in the October 1st publication. Many statements in the Proposed Finding contradict documents produced by the government in the nine years of litigation in this Court. For example:
Over the 100 years between the 1880s to the 1980s, the Department of the Interior made official eligibility determinations for 1886 Land assignments, created various rolls of eligible individuals, and often issued certificates to assignees.
The government either (1) has withheld these Departmental documents because, in response to the 2005 Call Order, the Department of the Interior produced no rolls of statutorily eligible individuals except the 1886-1889 censuses, or (2) has misrepresented that such documents with such purposes exist.
Now, the Department states over a 100 year period that it created “various rolls” of statutorily eligible individuals. Yet, the Department did not produce them in nine years of litigation. The Wolfchild Plaintiffs have spent nine years in litigation and the Department apparently withheld its documents and related arguments until after judgment was entered. So, the Court should now issue a second Call Order, so that the government produces its “various rolls of [statutorily] eligible individuals” (better later than never), if any (never).
Further proceedings would also include interpreting the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act. The October 1st publication relies heavily on a substantive interpretation of the “mixed blood” phrase to include persons on censuses subsequent to the 1886-1889 censuses. This tactic has been used by SMSC and the Department in the past to justify non-1886 Mdewakanton filling
14
out the membership at SMSC – and the concomitant, systematic exclusion of 1886 Mdewakanton there and at the other communities.
Further proceedings would also include adjudicating the legality of the Department’s October 1, 2012 action that 1886 Mdewakanton (called loyal Mdewakanton in the October 1, 2012 publication) include individuals who descend from a person on an Indian Land Certificate (1905-1980), 1917 McLaughlin Roll, 1891-93 and 1895-98 Birch Coulee censuses and 1899 McLaughlin Roll. None of these rolls should be used to determine whether an individual was or is a 1886 Mdewakanton group member.
The current members of the 1886 Mdewakanton Group are lineal descendants of a person who met the three requirements of the Appropriation Acts’ beneficiary definition on May 20, 1886: (1) full-blood or mixed-blood Indian in Minnesota, belonging to Mdewakanton Band of Sioux Indians, on May 20, 1886; (2) who resided in state on May 20, 1886 or were in the process of removing to Minnesota on May 20, 1886; and (3) who severed tribal relations. These lists, unlike the 1886 and 1889 censuses do not purport to list 1886 Mdewakanton Group members.
Similarly, rolls created before 1886 do not purport to list individuals who satisfy the statutory criteria in the 1888-1890 Appropriation Acts. So, pre-1886 rolls are not to be used to identify persons who meet the three statutory criteria.
The October 1st notice contains many errors. First, the 1886 McLeod Census and the 1889 Henton Supplemental Census have been adjudicated as the only Department documents listing exclusively individuals who meet all statutory criteria to be in the 1886
15
Mdewakanton Group. Second, the misidentified 1917 Census of Mdewakanton Sioux Indians, which is actually titled the 1923 Santee Sioux judgment roll, is a judgment roll for a different case. It is not a roll identifying individuals meeting the statutory criteria of the Appropriation Acts. Third, the Department was admittedly inconsistent in assigning Indian Land Certificates regarding 1886 lands to1886 Mdewakanton Group members. The Department was supposed to assign the 1886 Lands exclusively to 1886 Mdewakanton Group members. But, sometimes it did; sometimes it didn’t. Fourth, the Birch Cooley Censuses prepared by Robert Henton are not rolls identifying individuals meeting the statutory criteria of the Appropriation Acts. Fifth, the 1899 roll prepared by Inspector McLaughlin, which denotes which 1886 Mdewakanton group members had land assignments, is not a roll identifying individuals meeting the statutory criteria of the Appropriation Acts.
Finally, the Plaintiffs request the Court to enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the proceedings have been completed, if any.
CONCLUSION
For the foregoing reasons, the Court should grant the Plaintiffs’ motion for further proceedings. First, the Court should issue a call for information to the Department of the Interior and the Department of Justice under 28 U.S.C. § 2507(a) and conduct further proceedings to determine who wrote the October 1, 2012 notice, to analyze documents the Departments have to support their propositions, and to determine whether SMSC’s or the other communities’ representatives, attorneys and lobbyists by communications have
16
improperly interfered with the post-judgment remand proceedings. Second, the Court should order further proceedings to interpret the substantive meaning, if any, of the “mixed blood” phrase in the 1890 Appropriation Act. Third, the Court should order further proceedings to adjudicate the legality of the Department’s October 1, 2012 action that the 1886 Mdewakanton Group (called loyal Mdewakanton in the October 1, 2012 publication) includes individuals who descend from all persons on Indian Land Certificates (1905-1980), 1891-93 and 1895-98 Birch Coulee censuses, 1899 McLaughlin Roll and the misidentified “1917 Census of Mdewakanton Sioux Indians.” Fourth, the Court should enjoin the Department from ending the comment period – scheduled to end on November 1, 2012 – until 30 days after the Court completes its proceedings.
Dated: October 31, 2012.
MOHRMAN & KAARDAL, P.A.
By: /s/Erick G. Kaardal__________
Erick G. Kaardal
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Telephone: [phone]
ATTORNEYS FOR WOLFCHILD PLAINTIFFS
17
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of October, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court through its ECF System and electronic notice was delivered to the parties entitled to receive notice.
Dated: October 31, 2012.
/s/Erick G. Kaardal
Erick G. Kaardal

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++


•Department of the Interior October 1, 2012 Proposed Preliminary Plan


www.mklaw.com/documents/WolfchildExA.pdf

[mdenney]

Notes by
Erick G. Kaardal


November 21, 2012

Dear all:

Please note we received the responses of the government and the intervenor plaintiffs in the U.S. Court of Federal Claims. They are linked in the right hand column. Thanks.

egk

---------------------------------------------------------------------------------------------------------------------------------------------

•Government's Response


IN THE UNITED STATES COURT OF FEDERAL CLAIMS
____________________________________
SHELDON PETER WOLFCHILD, et al., )
)
)
Plaintiff, )
)
v. ) Case No. 03-2684L and
) Case No. 01-568L (consolidated)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)
THE UNITED STATES’ OPPOSITION TO WOLFCHILD PLAINTIFFS’
MOTION FOR FURTHER PROCEEDINGS UNDER RULE 52.2(f) AND
REQUEST FOR INFORMATION UNDER 28 U.S.C. § 2507(a)
IGNACIA S. MORENO
Assistant Attorney General
JODY H. SCHWARZ
Stephen Finn
Daniel Steele
U.S. Department of Justice
Environment & Natural Resources Division
Natural Resources Section
P.O. Box 663
Washington, D.C. 20044-0663
[phone] (tel.)
[phone] (fax)
[e-mail]
Attorneys for the United States
OF COUNSEL:
Gladys Cojocari
James Stroud
Michael Bianco
United States Department of the Interior
Washington, DC 20240
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 1 of 17
i
TABLE OF CONTENTS
I. QUESTIONS PRESENTED ................................................................................................1
II. STATEMENT OF THE CASE ............................................................................................1
A. The Court’s Orders Regarding the Application of the Distribution Act ................3
B. Development of the Preliminary Plan for Distribution. ...........................................5
III. ARGUMENT .......................................................................................................................7
A. Wolfchild Plaintiffs’ Motion for Further Proceedings Is Premature. ......................7
B. 28 U.S.C. § 2507(a) Is Not Applicable. ...................................................................9
IV. CONCLUSION ..................................................................................................................12
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 2 of 17
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Wolfchild v. United States, 62 Fed. Cl. 521 (2004) .......................................................................3
Wolfchild v. United States, 68 Fed. Cl. 779 (2005) .....................................................................12
Wolfchild v. United States, 101 Fed. Cl. 54 (2011) ...........................................1, 2, 4, 7, 8, 10, 12
Wolfchild v. United States, 101 Fed. Cl. 92 (2011) .......................................................................5
Woolverton v. United States, 26 Ct. Cl. 215 (1891) ....................................................................12
FEDERAL STATUTES
25 U.S.C. § 1402 ............................................................................................................................7
25 U.S.C. § 1403 ............................................................................................................................6
28 U.S.C. § 2507 ..............................................................................................................1, 3, 9, 12
Indian Tribal Judgment Funds Use or Distribution Act, 25 U.S.C. §§ 1401-1407 ........................4
Indian Tucker Act, 28 U.S.C. § 1505 .............................................................................................3
Federal Reports Elimination and Sunset Act of 1995, Pub. L. No 104-66, 109 Stat. 707 ......... 4-5
FEDERAL RULES
RCFC 52.2(f) ......................................................................................................................1, 2, 7, 8
FEDERAL REGULATIONS
25 C.F.R. Part 87 ............................................................................................................................5
25 C.F.R. Part 87.3 .........................................................................................................................6
25 C.F.R. § 87.4 .............................................................................................................................6
70 Fed. Reg. 190 ..................................................................................................................2, 6, 10
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 3 of 17
1
I. QUESTIONS PRESENTED
Whether Wolfchild Plaintiffs’ motion for further proceedings pursuant to Court of
Federal Claims Rule (“RCFC”) 52.2(f) is premature and not ripe and should be
denied because the Secretary of the Interior has not provided a final report to the
Court submitting his plan for the use and distribution of funds awarded in this case?
Whether Wolfchild Plaintiffs’ request for a call of information under 28 U.S.C. §
2507(a) should be denied because Wolfchild Plaintiffs cannot use this provision to
make a request and there is no matter before the Court requiring its adjudication?
II. STATEMENT OF THE CASE
Wolfchild Plaintiffs’ motion for further proceedings should be denied because it is
premature and not ripe. Pursuant to its August 5, 2011, Order, Wolfchild v. United States,
101 Fed. Cl. 54 (2011) (“Wolfchild VIII”) (ECF No. 1093) (as amended ECF No. 1098),
the Court remitted, remanded, and directed the Secretary of the Interior to provide a report
to the Court submitting his plan for the use and distribution of the funds awarded to the
lineal descendants of the loyal Mdewakanton in this case. Id. at 91. Although the United
States sought a stay of this Order, the Department of the Interior (“Interior”) has committed
resources to comply with the Order. Specifically, Interior began the process of
completing a final distribution plan, which includes the intermediate step of publishing a
preliminary plan and soliciting comments on that proposal. Wolfchild Plaintiffs,
objecting to the proposed eligibility criteria contained in the preliminary plan, now seek to
have this Court conduct further proceedings pursuant to RCFC 52.2(f) even though the
Secretary has not yet submitted a final plan and report to the Court. Wolfchild Plaintiffs
appear to confuse the Bureau of Indian Affair’s (“BIA”) October 1, 2012, publication in
the Federal Register of the Preliminary Plan for Distribution of Judgment Funds to the
Loyal Mdewakantons (“Preliminary Plan”) with the final report that the Court directed the
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 4 of 17
2
Secretary to submit. The publication in the Federal Register of the Preliminary Plan is just
that, preliminary. As the Federal Register notice provides:
The Department of the Interior is developing a plan for distribution of
judgment funds to the Loyal Mdewakanton if funds are appropriated in
satisfaction of a final judgment. The distribution plan includes a
determination of the criteria for eligibility to participate in any award.
Preliminary Plan, 70 Fed. Reg. 190, 59963-67 (Oct. 1, 2012) (emphasis added) (attached as
Exhibit A to Declaration of Erick G. Kaardal, ECF No. 1126-1). The Federal Register
notice provides information on how and when comments should be submitted and notice of
two in-person hearings, which have taken place. The development of the Preliminary
Plan and the notice and comment period provide an open and transparent process by which
the public may review and comment on the proposal. Interior then has the opportunity to
consider and address those comments in creating a final distribution plan.
On November 1, 2012, in accordance with the Federal Register notice information
on how to comment on the Preliminary Plan, Wolfchild Plaintiffs submitted their
Objections and Comments on the Preliminary Plan, with supporting documentation. As
recognized by Wolfchild Plaintiffs, this was the mechanism to express their objections to
the Preliminary Plan and submit their proposed eligibility criteria. Interior will review
and consider the Wolfchild Plaintiffs’ comments and objections in completing the final
distribution plan. It is at that point, when the Secretary submits a final distribution plan
and report, that the Court has stated it will “entertain potential proceedings to review the
report, as provided in RCFC 52.2(f).”1 Wolfchild VIII, 101 Fed. Cl. at 91. Until such
1 In arguing that Wolfchild Plaintiffs’ motion for further consideration is premature and
not ripe, the United States is not waiving its right to assert at a later date that further
proceedings pursuant to RCFC 52.2(f) are not proper in this case.
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 5 of 17
3
time, Wolfchild Plaintiffs’ motion is premature and not ripe for consideration.
Likewise, Wolfchild Plaintiffs’ request for a call of information to Interior and the
Department of Justice (“DOJ”) pursuant to 28 U.S.C. § 2507 should be denied. First, by
the statute’s terms, Wolfchild Plaintiffs cannot seek information through the call procedure
of 28 U.S.C. § 2507, and their unjustified allegations of collusion do not provide a basis.
Second, there is no matter currently before the Court for which it would need any
information to inform its adjudication. The Court has remitted and remanded to the
Secretary the issue of creating a final distribution plan and report. Interior is currently
engaging in this process and there is no final decision yet.
A. The Court’s Orders Regarding the Application of the Distribution Act.
The Court and the parties are well-versed in the procedural background of this case.
The United States will only reference those developments necessary to understand the
context of Wolfchild Plaintiffs’ motion and the United States’ opposition.
On August 5, 2011, as amended by Order dated August 22, 2011, the Court issued
its ruling on the United States’ motion to dismiss and Plaintiffs’ and Intervening-Plaintiffs’
motions for partial summary judgment. See Wolfchild VIII. In Wolfchild VIII, in
addition to other holdings, the Court determined that it need not reach the issue of claimant
eligibility. The Court had already determined that the descendants of the 1886
Mdewakanton were an “identifiable group of American Indians” within the meaning of the
Indian Tucker Act (28 U.S.C. § 1505) and that the Plaintiffs had brought their claims
“specifically and solely as members of [this] group.” Id. at 79 (quoting Wolfchild v.
United States, 62 Fed. Cl. 521, 540 (2004) (“Wolfchild I”)). After the Court granted
partial summary judgment to this group on the use-restriction claims, the United States
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 6 of 17
4
asserted that the use and distribution of the judgment amount would be governed by the
Indian Tribal Judgment Funds Use or Distribution Act (25 U.S.C. §§ 1401-1407)
(“Distribution Act”). That Act provides that the “use or distribution of funds appropriated
in satisfaction of a judgment . . . in favor of any Indian tribe, band, group, pueblo, or
community” is to be made pursuant to a distribution plan developed by the Secretary of the
Interior, 25 U.S.C. §§ 1401, 1403, which must first be submitted to Congress for review
and potential disapproval. Id. § 1402(a).
The Court agreed that the Distribution Act applied, holding that it would “abstain
from identifying the specific individual persons who qualify as lineal descendants of the
loyal Mdewakanton. Identification of claimants of the final judgment is within the
purview of the Secretary of Interior under the [Distribution Act]. See 25 U.S.C. §§ 1402(a),
1403.” Wolfchild VIII, 101 Fed. Cl. at 86. The Court “refrain[ed] from articulation of
what specific criteria claimants must satisfy to prove their status, as all facets of this
determination make up the Secretary’s responsibilities under the Act.” Id. The Court
further held that the Federal Reports Elimination and Sunset Act of 1995, Pub. L. No
104-66, § 3003, 109 Stat. 707 (“Reports Elimination Act”), repealed the Congressional
reporting provisions of the Distribution Act. Id. at 90. Given the presumed
unavailability of Congressional review, the Court remanded to Interior and directed the
Secretary of the Interior to prepare and submit to the Court, within one year of the Court’s
ruling, a roll of eligible claimants and a distribution plan of the funds awarded under the
Distribution Act. Id. at 91-92. The Order also provides that “once judgment is certified
and the money automatically appropriated, the Secretary shall begin work necessary to
create a distribution plan in accordance with the Indian Judgment Distribution Act.” Id. at
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 7 of 17
5
91.
The United States moved for reconsideration of this ruling and for entry of final
judgment on all claims, which the Court denied. Wolfchild v. United States, 101 Fed. Cl.
92, 97 (2011) (“Wolfchild IX”). After the Court issued Wolfchild IX, the parties filed
appeals of the Court’s ruling with the United States Court of Appeals for the Federal
Circuit on December 27, 2011 (designated Nos. 2012-5035, -5036, -5043 (consolidated)).
The parties are currently briefing the issues on appeal.
B. Development of the Preliminary Plan for Distribution.
Although the parties appealed the Court’s ruling and no judgment has been
certified, thus no money has been appropriated, Interior began working internally on
developing the preliminary plan for distribution that adheres to the guidelines and
prerequisites set forth the in the Distribution Act and its implementing regulations.
Because of the uncertainties of budget, funding, and personnel, on August 3, 2012, the
United States moved the Court for an order staying the proceedings pending resolution of
the appeals or, in the alternative, granting it relief from judgment in the form of an
extension of time to comply with the Court’s August 5, 2011, Order. See U. S. Mot. for
Stay or, in the Alt., Mot. for Rel. from Judgment in the Form of an Ext. of Time (“Motion
for Stay”) (ECF No. 1120). This motion is pending.
In its Motion for Stay, the United States set forth the steps outlined by statute and
regulation that Interior needs to take in order to put together a distribution plan. These steps
include: (a) preparation of a plan for the use and distribution of the judgment award, 25
C.F.R. Part 87 et seq.; and, if applicable, (b) compilation of a roll of eligible claimants, 25
C.F.R. Part 61 et seq. Id. at 5. The United States then discussed the process Interior
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6
would need to engage in order to develop a distribution plan, which includes:
(a) conducting research (making full use of the material available to us as
provided through the litigation) that includes review of cultural, political,
and historical material in order to determine the identity of present-day
beneficiaries (25 C.F.R. Part 87.3(a)) to support the administrative findings
that justify the reasonableness of the distribution plan; (b) conducting
research in order to identify the time place and manner to effectuate proper
notice of the opportunity to give comments on the preliminary findings of
the agency’s research present day beneficiaries; (c) publishing notices in the
Federal Register and other appropriate local publications, tribal offices, and
BIA offices of the proposed plan for distribution along with the intent to
hold public hearings on the record to receive comment from potentially
impacted individual Indians and/or Indian tribes on the preliminary findings
and plan (25 U.S.C. § 1403; 25 C.F.R. § 87.4); (d) conducting the
appropriate number of public meetings or hearings on the record presenting
the results of the research and proposed plan (25 C.F.R. Part 87.3(b)); (e)
considering and addressing the comments received for determination on the
final plan and report; and (f) submitting the final plan and report to the
Court.
Motion for Stay at 6. Of importance are items (c) through (f), which address the creation
of a proposed plan for distribution, holding a public comment hearing on that proposed
plan, consideration of comments received, and submission of the final plan and report.
These steps must take place before the Secretary may submit a final plan and report to the
Court.
Currently, Interior has created a preliminary plan, published notice in the Federal
Register of that plan, held two in-person hearings in South Dakota and Minnesota on
October 30, 2012, and November 1, 2012, and solicited public comments. See
Preliminary Plan, 70 Fed. Reg. 190, 59963-67. Interior is now in the process of reviewing
and addressing the numerous comments and testimony received, including those received
from Wolfchild Plaintiffs, for preparation of the final plan and report. The Secretary has
not submitted a final plan and report to this Court in accordance with the remand issued in
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 9 of 17
7
Wolfchild VIII.
III. ARGUMENT
A. Wolfchild Plaintiffs’ Motion for Further Proceedings Is Premature.
Wolfchild Plaintiffs’ motion is premature and not ripe. The Secretary has not
submitted his final report and distribution plan to the Court in accordance with its Order.
In Wolfchild VII, the Court provided that it would:
ssue a remit, remand, and direction to the Secretary of the Interior to
provide a report to the court within the time specified in 25 U.S.C. § 1402,
submitting his or her “plan for the use and distribution of the funds”
awarded to the lineal descendants of the loyal Mdewakanton, 25 U.S.C. §
1402(a). Upon receipt of the report, the court will entertain potential
proceedings to review the report, as provided in RCFC 52.2(f).
101 Fed. Cl. at 91. Although the United States has requested a stay of this Order, Interior
has committed resources to comply with the Order. Interior has published notice of the
Preliminary Plan and is in the process of considering the comments and testimony taken at
the South Dakota and Minnesota in-person hearings and the comments sent to Mr. David
Christensen, Tribal Operations Officer, BIA, Midwest Regional Office, in response to the
Federal Register notice. The Secretary has not provided a report and final distribution
plan to the Court in compliance with its Order.
Wolfchild Plaintiffs, confusing the nature of the Preliminary Plan, request that the
Court conduct further proceedings because they disagree with the eligibility criteria
Interior specified in the Preliminary Plan. Pls.’ Br. at 10-12. But the Preliminary Plan is
not the same thing as the report and final distribution plan Interior will develop. Interior
needs to consider the comments and communications received in response to its public
notice and in-person hearings before it can issue a final plan and report. Although the
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 10 of 17
8
Court stated that it may be necessary to conduct further proceedings to review the
Secretary’s final plan and report as provided in RCFC 52.2(f), a request for such
proceedings cannot even be considered until the Secretary actually submits a report and
final plan. Wolfchild VIII, 101 Fed. Cl. at 91.
RCFC 52.2(f) provides:
(f) Post-Remand Proceedings.
(1) Notice. Within 30 days after the filing of the final decision or
other action on remand, each party must file with the clerk and serve
on each adverse party a notice stating:
(A) whether the final decision or other action on remand
affords a satisfactory basis for disposition of the case; or
(B) whether further proceedings before the court are
required and, if so, the nature of such proceedings.
Id. In this case, there has been no filing of a final decision nor has there been any other
final action on remand. Therefore, any request by Wolfchild Plaintiffs for the initiation of
further proceedings regarding the Preliminary Plan is premature and not ripe.
Interior, pursuant to the Court’s directive, and consistent with its involvement in
creating distribution plans for other judgments subject to the Distribution Act, developed
an open and transparent process in which the public could provide its comments on and
objections to the Preliminary Plan to aid Interior in the creation of a final plan. Wolfchild
Plaintiffs participated in this process and had ample opportunity to voice their concerns and
objections. Their comments, and the comments of all of the public, will be addressed and
considered in the development of a final distribution plan. It is only when the Secretary
submits the final plan and report to the Court that Wolfchild Plaintiffs may seek to engage
in further proceedings pursuant to RCFC 52.2(f). Until then, Wolfchild Plaintiffs’ request
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 11 of 17
9
is premature and not ripe.
B. 28 U.S.C. § 2507(a) Is Not Applicable.
Wolfchild Plaintiffs’ cannot request a call for information to Interior and DOJ
pursuant to 28 U.S.C. § 2507 nor is there any support for this Court to do so. The
provision states:
The United States Court of Federal Claims may call upon any department
or agency of the United States or upon any party for any information or
papers, not privileged, for purposes of discovery or for use as evidence.
The head of any department or agency may refuse to comply with a call
issued pursuant to this subsection when, in his opinion, compliance will be
injurious to the public interest.
28 U.S.C.§ 2507(a) (emphasis added). This statute, originally enacted in 1911 (36 Stat.
1140), appears to be a forerunner of the rules of discovery enacted later in the Federal
Rules of Civil Procedure and the Rules of this Court. By its terms, the provision does not
contemplate use of the provision by a party and there is no reason it should be used this
way.
Wolfchild Plaintiffs base their request on their view that they alone are entitled to
the judgment in this case and any consideration contrary to their position must be viewed as
the product of an “illicit collaboration.” Pls. Br. at 4. But as Wolfchild Plaintiffs are well
aware, various parties have joined the litigation as intervening-plaintiffs, asserting that
they are entitled to partake in any judgment rendered by the Court. The CFC and the
Federal Circuit have not issued any opinions on their claims that they should be the only
recipients under a distribution plan. The Federal Circuit has not held that Wolfchild
Plaintiffs are the only possible recipients, and this Court has abstained from identifying
what specific criteria claimants must satisfy to prove their status as recipients under a plan.
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 12 of 17
10
Wolfchild VIII, 101 Fed. Cl. at 86. Rather, pursuant to its reading of the Distribution Act,
the Court remitted and remanded to the Secretary of the Interior the responsibility for
making this determination. That Wolfchild Plaintiffs disagree with the preliminary
eligibility criteria developed by Interior is not a basis upon which they may seek to request
a call for information by the Court.
Wolfchild Plaintiffs’ allegations that Interior has engaged in some type of
conspiracy to dilute the eligibility criteria in retaliation against them are without merit or
support. See Pls.’ Br. at 10-12. These unfounded accusations do little to further the
resolution of this matter and only compound the effort the parties must expend in this
litigation. For example, Wolfchild Plaintiffs single out Interior’s statement in the
Preliminary Plan that “‘[o]ver the 100 years between the 1880s to the 1980s, the
Department of the Interior made official eligibility determinations for 1886 Land
assignments, created various rolls for eligible individuals, and often issued certificates to
assignees’” as proof that Interior has withheld documents from them. Pls.’ Br. at 13
(quoting Preliminary Plan, 70 Fed. Reg. 190 at 59966). Wolfchild Plaintiffs disregard the
context of the statement. Preceding this statement is a list and detailed description of the
various rolls and eligibility determinations referenced, all of which have been submitted by
the parties in this case and are part of the record.
Wolfchild Plaintiffs also allege that Interior has misrepresented that “the 1923
Santee Sioux Roll, Act of March 4, 1917 and Court of Claims Judgment Roll
(McLaughlin) is a ‘1917 Census of Mdewakanton Sioux.’” Pls.’ Br. at 15. They assert
that because of this misrepresentation, Interior should not rely upon this roll to determine
eligibility. Id. To the extent Wolfchild Plaintiffs believe Interior relied upon this roll in
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 13 of 17
11
error or otherwise misunderstood its purpose, their opportunity to notify Interior of their
objection was during the comment period for the Preliminary Plan, a process Wolfchild
Plaintiffs requested that the Court order (See Plaintiffs’ Coordinated Response to Motion
to Stay, Sept. 28, 2012, ECF No. 1120). Wolfchild Plaintiffs, in fact, did provide their
detailed comments and objections during the comment period, which Interior is currently
reviewing. The comment period and process was the proper mechanism for Wolfchild
Plaintiffs to directly participate in Interior’s development of a final distribution plan. This
forum is not. Interior contemplated the participation of all the parties to this case and of
other individuals during the comment period. The questions and comments received are
valuable in assisting Interior perform its function during plan development. Interior is
now in the process of reviewing and responding to these comments and questions so that it
may make reasoned decisions and finalize the distribution plan. Wolfchild Plaintiffs’
unsupported accusations of conspiracy do not contribute to this process and cannot serve as
a foundation to request that the Court issue a call for information.
Further, there is no matter before the Court for which it needs to call upon
information for purposes of discovery or for use as evidence. This Court stated:
Over the years, the Call Statute has enabled the court to address a variety of
circumstances in which aid of governmental agencies or the parties was
necessary to determine monetary liabilities of the federal government: “t
has been deemed necessary by Congress that the court should have power to
obtain the essential information from the various departments of the
Government to enable it intelligently to adjudicate the matters coming
before it . . . [C]ases [concerning the official action of some department or
officer of the government] cannot be properly and fully adjudicated without
the court having before it the official record of the transaction as contained
in the files of the department in which the case originates.”
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 14 of 17
12
Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005) (quoting Robinson v. U.S., 50 Ct.
Cl. 159, 164, 1915 WL 1096 (1915)). It is within the court’s discretion to refuse a call and
discretion is primarily governed by whether the evidence would be material and competent
when offered in the trial of the cause. Woolverton v. U.S., 26 Ct. Cl. 215, 216, 1800 WL
1752 (1891).
Here, Interior’s development of a distribution plan on remand pursuant to the
Court’s Order is not subject to this provision and the Court should refuse a call. There is
no matter before the Court requiring its adjudication. Currently, the Court has remitted
and remanded to the Secretary the issue of the development of a final distribution plan and
report pursuant to the Distribution Act. Wolfchild VIII, 101 Fed. Cl. at 91. Interior is
engaged in the process of completing such a plan. The information sought by Wolfchild
Plaintiffs, namely, the author of the Preliminary Plan and the supporting documentation,
are not necessary for the adjudication of any matters before the Court. Once Interior has
developed a final distribution plan and report and the Secretary submits it in accordance
with the Court’s Order, the Court has stated that it may consider further proceedings and
the nature of any such proceedings.
IV. CONCLUSION
Wolfchild Plaintiffs’ motion pursuant to Rule 52.2(f) should be denied. The
decision they seek to challenge, the Preliminary Plan, is not a final decision or other action
on remand. Their request is premature and not ripe. Additionally, Wolfchild Plaintiffs
cannot request for a call of information, based on unjustified allegations of conspiracy,
pursuant to 28 U.S.C. § 2507(a) and there is no matter before this Court which would
require it to do so. For the reasons discussed above, the Court should deny Wolfchild
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 15 of 17
13
Plaintiffs’ motion for further proceedings and a call for information and grant any such
further relief as it deems just.
Respectfully submitted this 19th day of November, 2012.
IGNACIA S. MORENO
Assistant Attorney General
/s/ Jody H. Schwarz
Jody H. Schwarz
Stephen Finn
Daniel Steele
U.S. Department of Justice
Environment & Natural Resources Division
Natural Resources Section
P.O. Box 663
Washington, D.C. 20044-0663
[phone] (tel.)
[phone] (fax)
[e-mail]
Attorneys for the United States
OF COUNSEL:
Gladys Cojocari
James Stroud
Michael Bianco
United States Department of the Interior
Washington, DC 20240
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 16 of 17
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CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of November, 2012, a copy of the United States’
Opposition to Wolfchild Plaintiffs’ Motion for Further Proceedings was filed
electronically with the Clerk of the Court through its ECF System and electronic notice
was delivered to the parties entitled to receive notice.
DATED: this 19th day of November, 2010.
/s/ Jody H. Schwarz
Jody H. Schwarz
Case 1:03-cv-02684-CFL Document 1137 Filed 11/19/12 Page 17 of 17

____________________________________________________________

This above is from link below-

www.mklaw.com/documents/1137USOppositiontoMotionforFurtherProceedings111912.pdf

[mdenney]

•Intervenor Plaintiffs' Response

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
___________________________________
SHELDON PETER WOLFCHILD, et.al., )
)
Plaintiff, )
) Case No. 03-2684L and
v. ) Case No. 01-568L (consolidated)
)
)
UNITED STATES OF AMERICA, )
)
Defendant. )
___________________________________ )
Plaintiff-Intervenors’ Collective Response to Wolfchild Plaintiffs’ Objection
to Department’s Order October 1, 2012 Action on Remand and Motion for
Further Proceedings Under Rule 52.2(f) (Corrected), Cross-Motion to Compel
Defendant to Provide Reimbursement to Plaintiffs and Plaintiff-Intervenors
For Preparation and Submission of Genealogies for Eligibility Pursuant to
28 U.S.C. 1491(a)(2) and RCFC 52.2(a) and Memorandum in Support
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 1 of 22
ii
TABLE OF CONTENTS
I. THE WOLFCHILD PLAINTIFFS’ MOTION IS PREMATURE .……………1
II. THE PLAINTIFF-INTERVENORS TAKE NO POSITION REGARDING
THE PLAINTIFFS’ ARGUMENT THAT THE DEPARTMENT’S
MOTIVATION FOR THE OCTOBER 1, 2012 DRAFT REPORT AND
PRELIMINARY PLAN WAS BASED UPON "RETALIATION” .……………..3
III. NEITHER THE COURT OF FEDERAL CLAIMS NOR THE FEDERAL
CIRCUIT EVER PRONOUNCED FINAL ELIGIBILITY CRITERIA FOR
DETERMINING ENTITLEMENT TO 1888-1890 APPROPRIATION ACT
BENEFITS .………………………………………………………………………..4
IV. THE WOLFCHILD PLAINTIFFS HAVE FAILED TO ESTABLISH ANY
GROUNDS FOR PROVISIONAL INJUNCTIVE RELIEF, INCLUDING THE
RESTRAINING OF THE SECRETARY OF INTERIOR FROM ENDING THE
COMMENT PERIOD .……………………………………………………………7
V. THE RECENT HEARINGS EMPHASIZED INCLUSIVENESS OF
ELIGIBILITY ……………………………………………………………………..9
CONCLUSION ……....………………………………………………………….11
PLAINTIFF-INTERVENORS’ CROSS-MOTION TO COMPEL THE
SECRETARY OF INTERIOR TO PAY THE COSTS OF THE PLAINTIFFS
AND PLAINTIFF-INTERVENORS AWARDED IN WOLFCHILD VIII ……..12
QUESTION PRESENTED ..…………………………………………………….12
STATEMENT OF THE CASE ………………………………………………….12
ARGUMENT …………………………………………………………………….13
CONCLUSION ………………………………………………………………….15
CERTIFICATE OF SERVICE ..…………………………………………………19
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 2 of 22
iii
TABLE OF AUTHORITIES
Cases
Sheets v. United States, 2 Cl. Ct. 101, 102 (1983) ….…………………………..14
Ulman v. United States, 214 Ct. Cl. 308, 314, 558 F.2d 1, 4 (1977) .…………..14
Webco Lumber, Inc. v. United States, 230 Ct. Cl. 457,
677 F.2d 860, 864 (1982) .………………………………………………………14
Wolfchild VI, 559 F.3d 1228 (2009) …………………………………………..4, 5
Wolfchild VIII, 101 Fed. Cl. 54, 88, 92 (2011) ...………1, 2, 4, 5, 6, 11, 12, 13, 14
Other Authorities
25 U.S.C. §§ 1402(a), 1403 ……………………………………………………6, 12
28 U.S.C. § 2412 ….……………………………………………………………..15
RCFC 52.2(f) ….…………………………………………………………………..1
RCFC 54(b) ……………………………………………………………………….2
RCFC 65 ….……………………………………………………………………….7
Federal Register, Vol. 77, No. 190, pp. 59963-59967 (October 1, 2012) ..…1, 2, 13
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 3 of 22
1
Plaintiff-Intervenors’ Collective Response to Wolfchild Plaintiffs’
Objection to Department’s Order October 1, 2012 Action on Remand
and Motion for Further Proceedings Under Rule 52.2(f) (Corrected)
Come Now the Plaintiff-Intervenors, by and through the counsel listed
hereinbelow, and submit the following Response to Wolfchild Plaintiffs’
October 31, 2012 Objection to the Department’s October 1, 2012 Action on
Remand and Motion for Further Proceeding Under Rule 52.2(f) (Corrected)
(Doc. 1136), and in support of Plaintiff-Intervenors’ Cross-Motion to
Compel Reimbursement for their “costs” in preparing and submitting to this
Court and the United States “genealogies to establish their status as eligible
claimants.” Wolfchild VIII, 101 Fed. Cl. 54, 88, 92 (2011).
I. THE WOLFCHILD PLAINTIFFS’ MOTION IS PREMATURE.
The Wolfchild Plaintiffs present their motion objecting to the
Department of Interior’s October 1, 2012 “Preliminary Plan for the
Distribution of Judgment Funds to the Loyal Mdewakantons,” published in
the October 1, 2012 Federal Register. Vol. 77, No. 190, pp. 59963-59967
(October 1, 2012) (Doc. 1126-1). (Emphasis ours). In doing so, the
Department was acting pursuant to this Court’s mandate in Wolfchild VIII.1
1 “under the Indian Judgment Distribution Act it is the Secretary of
Interior, not plaintiffs' attorneys or the court, who must sort through the
thousands of documents, compile the pertinent records, and undertake the
historical research to determine the appropriate templates by which to
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 4 of 22
2
Specifically, this Court “remitted and remanded” to the Secretary of Interior,
“the matters of developing a roll of eligible claimants and a plan for
distribution of the funds awarded” by the Court to the Plaintiff and Plaintiff-
Intervenors. 101 Fed. Cl. at 92.
The Wolfchild Plaintiffs challenge the “Department’s eligibility
criteria published on October 1, 2012 in the Federal Register,” claiming that
the published criteria “plainly contradict the Federal Circuit opinion and the
CFC’s Rule 54(b) judgment.” Wolfchild Br. at 2. The Plaintiffs even
characterized the criteria in the preliminary plan as “illegitimate.” Br. at 3.
However, the Plaintiff-Intervenors submit that the October 1, 2012
Federal Register notice was merely a “Draft Report and Preliminary Plan.”
Fed. Reg. at 59964. The Department of Interior solicited written comment
and live testimony at the hearings. In response, the Plaintiff-Intervenors
submitted substantial written documentation, including specific objections to
the report and plan, and presented arguments at the Department’s October
30, 2012 Sioux Falls, South Dakota hearing and on the November 1, 2012
Minneapolis, Minnesota hearing. Although the named Plaintiff was in
adjudicate claimant eligibility.” Wolfchild VIII, 101 Fed. Cl. 54, 88 (2011),
citing also 25 C.F.R. § 87.3. Id.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 5 of 22
3
attendance at the October 30, 2012 hearing, representatives for the Plaintiffs
did not appear at either hearing.
The Plaintiff-Intervenors actively participated in the process initiated
by the Department of Interior – Bureau of Indian Affairs. In fact, Plaintiff-
Intervenor counsel R. Deryl Edwards, Jr. attended the November 1, 2012
Minneapolis hearing just before his death three days later.
The Plaintiff-Intervenors would suggest that the Wolfchild Plaintiffs’
objections to the criteria are presently premature. The Department’s October
1, 2012 Notice and the subsequent hearings concerned a “draft” report and
“preliminary” plans. The Department was acting in accordance with its
mandate from the Court of Federal Claims. The Wolfchild Plaintiffs
otherwise possessed sufficient time to submit written objections and
otherwise have made their current objections known at either meeting.
II. THE PLAINTIFF-INTERVENORS TAKE NO POSITION
REGARDING THE PLAINTIFFS’ ARGUMENT THAT THE
DEPARTMENT’S MOTIVATION FOR THE OCTOBER 1, 2012
DRAFT REPORT AND PRELIMINARY PLAN WAS BASED UPON
"RETALIATION.”
The Wolfchild Plaintiffs assert that the United States, in publishing
the October 1, 2012 draft report and preliminary plan, “wanted to re-define
the 1886 Mdewakanton Group” and otherwise acted in “clear retaliation
against the 1886 Mdewakanton Group which is clearly exclusively entitled
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 6 of 22
4
to the CFC judgment.” Br. at 2-3. The Plaintiff-Intervenors do not take any
position regarding these claims. However, the Plaintiff-Intervenors, as
explained infra, object to the Wolfchild Plaintiffs’ position that they are
“clearly exclusively entitled to the CFC judgment.”
III. NEITHER THE COURT OF FEDERAL CLAIMS NOR THE
FEDERAL CIRCUIT EVER PRONOUNCED FINAL ELIGIBILITY
CRITERIA FOR DETERMINING ENTITLEMENT TO 1888-1890
APPROPRIATION ACT BENEFITS.
The CFC, both before the Federal Circuit’s Wolfchild VI opinion, 559
F.3d 1228 (2009), and thereafter, purposefully failed to articulate any set
eligibility criteria for Appropriation Act benefits. The issue of eligibility
was not addressed in the Government’s initial Federal Circuit appeal,
primarily because the issue was not fully addressed by the CFC beforehand.
Thus, the Federal Circuit’s opinion was mere dicta. For these reasons, the
Wolfchild Plaintiffs’ call for consistency in the Federal Circuit’s opinion,
Wolfchild Br. at 10,2 and in the CFC’s opinions regarding eligibility, is
without merit.
The Wolfchild Plaintiffs fail to adequately explain, much less support,
their assertion that the Department of Interior “erroneously seized” upon this
Court’s Wolfchild VIII opinion and “re-open[ed]” statutory issues the
2 Citing Wolfchild VI, 559 F.3d at 1243.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 7 of 22
5
Federal Circuit “resolved.” Br. at 11. As stated, the CFC has never decided
the eligibility issue, and the Federal Circuit did not pass on the issue in
Wolfchild VI. In fact, the Federal Circuit stated that it “borrow[ed] heavily
from the trial court’s analysis of the facts and governing legal principles.”
Wolfchild VI, 559 F.3d at 1232. It is submitted that none of the “facts” or
“legal principles” the Federal Circuit utilized in resolving the two narrow
appeal issues involved eligibility. Consequently, the Wolfchild Plaintiffs’
argument that the Federal Circuit somehow decided eligibility is
unsupported by the legal records and the nine Wolfchild opinions of the
CFC and the Federal Circuit.
The Wolfchild Plaintiffs recognize that this Court, in Wolfchild VIII,
expressly found that it would “abstain from identifying the specific
individual persons who qualify as lineal descendants of the loyal
Mdewakanton.”3 Implicit in this passage should have been the further
recognition that neither the CFC nor the Federal Circuit had previously
“resolved” the eligibility issue. The Court then proceeded to make it
abundantly clear, that it would “likewise refrain from articulation of what
specific criteria claimants must satisfy to prove their status.” Id. This Court
3 Wolfchild Br. at 11; see Wolfchild VIII, 101 Fed. Cl. 54, 86 (Fed. Cl.
2011), as corrected, reconsideration denied 101 Fed. Cl. 92, 99 (2011).
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 8 of 22
6
held that the Secretary of Interior must: (1) identify the beneficiaries of the
final judgment under the Judgment Distribution Act, 25 U.S.C. §§ 1402(a),
1403; and (2) determine “all facets” of the specific criteria the claimants
must satisfy to prove their status. Id. The Wolfchild Plaintiffs’ motion is a
misguided attempt to undermine the process of determining eligibility – a
process recognized by this Court as being the primary obligation of the
Secretary of Interior.
This Court has stated its position that it “has no direct role in
specifying the individual persons entitled to share in a judgment in favor of
the descendants of the loyal Mdewakanton.” Wolfchild VIII, 101 Fed. Cl. at
91. The Wolfchild Plaintiffs’ argument that this Court “never authorized the
Department to take post-judgment actions which contradict then Federal
Circuit’s opinion and the CFC’s own judgment,” Br. at 11, must be
overruled as unsupported by the record in each court. In this instance, the
Secretary acted within the orders of this Court. The Plaintiffs had the same
opportunities to object and comment to the Secretary’s draft report and
preliminary plan as the Plaintiff-Intervenors and chose to abstain from the
process. The Secretary should now be permitted to fulfill the mandate of
this Court by submitting “a [final] report to the Court setting out the
proposed roll and plan.” Wolfchild VIII, 101 Fed. Cl. at 92.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 9 of 22
7
The Plaintiff-Intervenors have explicitly objected throughout this case
to any notion that Appropriation Act benefits were confined exclusively to
the so-called “1886 Mdewakanton Group” comprising “264 beneficiaries.”
Br. at 10-11. The Plaintiff-Intervenors have argued such a limitation is
unjust and unsupported by the Secretary of Interior’s historical policy. The
Secretary’s policy recognized the McLeod and Henton censuses advocated
by the Wolfchild Plaintiffs, but also recognized the McLaughlin 1917 roll (if
supported by other documents) and “any other rolls or materials” that were
probative of eligibility. See Gershuny August 17, 1971 Department policy
memorandum. The Wolfchild Plaintiffs’ present argument of exclusiveness
is ironically the same argument they object to in the communities’ approach
to them. If a claimant can make a case for eligibility to the Secretary for the
judgment funds, justice, the Department of Interior’s historical policy and
the law dictate the Wolfchild Plaintiffs’ self-centered arguments should be
summarily rejected by this Court.
IV. THE WOLFCHILD PLAINTIFFS HAVE FAILED TO
ESTABLISH ANY GROUNDS FOR PROVISIONAL INJUNCTIVE
RELIEF, INCLUDING THE RESTRAINING OF THE SECRETARY
OF INTERIOR FROM ENDING THE COMMENT PERIOD.
The Wolfchild Plaintiffs have not complied with the mandatory
procedural prerequisites for the issuance of a preliminary injunction or
temporary restraining order against the Secretary of Interior. See RCFC
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 10 of 22
8
Rule 65. Additionally, even if these Plaintiffs had done so, they have not
made a submissible substantive case of irreparable harm in absence of the
provisional relief. Without meeting the procedural and substantive
requirements, the Court should deny the requested relief, if the Plaintiffs are
asking for specific provisional relief in the first instance.
If the Wolfchild Plaintiffs’ representatives had chosen to attend the
Minneapolis DOA/BIA hearing, they would have learned that it was the
intention of DOI/BIA to submit the proposed “final plan” to the United
States Court of Federal Claims for “court approval.” As stated, the Court
requested the Secretary to submit his “report to the court setting out the
proposed roll and plan.”
BIA Tribal Operations Officer David Christianson, explicitly
explained in the presence of two legal counsel attending on behalf of the
Solicitor Generals’ Office, that it is the intention of the Department
(DOI/BIA) to consider all “testimony” materials and evidence, and
comments made during the two hearings, and to draft a proposed “final
plan,” which would be submitted to the Court in the this litigation.
Presumably, there would be opportunity for the Court of Federal Claims to
address input from various parties involved in the litigation, prior to any
court order of approval, and/or appropriate modification. Thereafter, the
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 11 of 22
9
Department of Interior/BIA would ultimately submit the “final plan,” to
Congress, with request for enactment and appropriation of funds to be
distributed. The Wolfchild Plaintiffs are expected to still possess the
opportunity to present their positions on the “final plan” to the Court of
Federal Claims. Thus, there is no irreparable harm to these Plaintiffs.
V. THE RECENT HEARINGS EMPHASIZED INCLUSIVENESS
OF ELIGIBILITY
During the October 30 and November 1, DOI hearings, the most
prevalent comments addressed a broad view for determining eligibility. In
analyzing the amount of monetary award between the Wolfchild Plaintiffs’
view and the Secretary’s, little difference exists between either monetary
award paradigm. Under the Plaintiff-Intervenors’ view, the approximate
20,000 claimants would receive about $40 each. In comparison, the
Wolfchild Plaintiffs’ position would result in approximately $150 for
approximately 4,000-5,000 claimants seeking eligibility under the two
McLeod and Henton censuses. But to the Plaintiff-Intervenors, this case is
not important merely because of the money. Their emphasis is based
primarily upon identity of heritage as loyal Mdewakanton descendants.
It is important that the Plaintiff-Intervenors point out the significance
of their collective identity as being among the Mdewakantons that stood out
against their own leadership in 1862 as loyal Mdewakantons to save white
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 12 of 22
10
settlers. The Plaintiff-Intervenors have suffered, just as the Plaintiffs, as
result of the communities’ rejection of their identity; but will fight in this
forum to prevent that indignity from occurring anew – from their own
people. They paid the ultimate cost in separation from their tribe and lived
in abject poverty – just as the 264 advocated by the Wolfchild Plaintiffs - for
a substantial time being abandoned by the Government and the white settlers
they risked their lives to protect. It is not the $20-40 available to each
claimant – it is the assurance of their collective identity as descendants of the
“loyal Mdewakanton.” The greatest indignity to the claimants and their
loyal Mdewakanton ancestors would be arbitrarily restricting eligibility to
the two censuses, as an affront to their identity as lineal descendants of the
loyal Mdewakanton. The attendees at the hearings consistently voiced these
positions.
Comments were consistently made during the hearings, that the
descendants of the loyal Mdewakantons should not be fighting each other
over recoveries in a $40 or a $150 range or something in between. A Tribal
Elder from the Lower Sioux community eloquently commented during the
hearing in Minneapolis, that there has been 150 years of disagreement and
fighting between the Mdewakanton Sioux. She advocated that it should stop
now. We agree. For the next 150 years, the Mdewakanton Sioux should act
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 13 of 22
11
united. This Court’s approval of the Secretary’s report, roll and plan is a
positive move in the right direction. It should no longer be stalled or
otherwise delayed by either the Government or the Wolfchild Plaintiffs.
CONCLUSION
The Plaintiff-Intervenors submit that the Wolfchild Plaintiffs’ Motion
should be denied and the Court should abstain from delaying the case by
issuing a call for information or document analysis. The Court should
likewise abstain from engaging itself in interpreting the phrase “mixedblood”
as unnecessary and irrelevant at this point in these proceedings. The
Wolfchild Plaintiffs’ request to “order further proceedings” to “adjudicate
the legality of the Department’s October 1, 2012 action,” should be
summarily denied as premature, as being directly contradictory to this
Court’s charges to the Secretary of Interior in Wolfchild VIII, and fails to
give the Secretary the proper legal deference accorded its “final”
administrative decisions. Finally, the comment period should not be
extended for the reasons articulated by the Wolfchild Plaintiffs, as these
Plaintiffs chose not to actively participate or otherwise object to the evidence
and testimony adduced at either of the Secretary’s recent hearings.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 14 of 22
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PLAINTIFF-INTERVENORS’ CROSS-MOTION TO COMPEL THE
SECRETARY OF INTERIOR TO PAY THE COSTS OF THE
PLAINTIFFS AND PLAINTIFF-INTERVENORS AWARDED IN
WOLFCHILD VIII
QUESTION PRESENTED
Government’s Payment of Costs Judgment. In Wolfchild VIII, this
Court ordered the Government to reimburse the Plaintiffs and
Plaintiff-Intervenors’ cost for preparing materials submitted in support
of their eligibility to the judgment funds. To date, the Department has
not paid any of these costs and has not developed a disclosed plan to
do so. Does the Government have a present, enforceable duty to
immediately pay these costs which is not stayed by the appeal to the
Federal Circuit?
STATEMENT OF THE CASE
In this Court’s August 5, 2011 Wolfchild VIII opinion, this Court
ordered that the Government “reimburse plaintiffs and plaintiff-intervenors
for the costs of preparing the materials that plaintiffs and plaintiffintervenors
submitted in support of their claims of eligibility as to the
stipulated funds.” 101 Fed. Cl. at 88. The Court reasoned that the
Government’s “unjustified litigation posture has caused” the expenditure of
Plaintiff and Plaintiff-Intervenors’ resources. Id. Specifically, this Court
ordered the Secretary to “provide reimbursement pursuant to 25 U.S.C.
§ 1403(b) to plaintiffs and intervening-plaintiffs for their costs in preparing
and submitting to the court and the government, genealogies to establish
their status as eligible claimants.” 101 Fed. Cl. at 92.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 15 of 22
13
The Government has not appealed the judgment or the findings upon
which the judgment is based concerning its obligation to reimburse the
Plaintiffs and Plaintiff-Intervenors for these costs. The Government has not
even briefed this issue. However, the Government has not reimbursed the
Plaintiffs or the Plaintiff-Intervenors, even though over a year’s time has
passed. The United States has not even developed a plan to pay these costs
promptly, although it has prepared a draft report and preliminary plan, Fed
Reg. Vol. 77, No. 190, pp. 59963-67 (October 1, 2012), and held two
hearings on other related matters.
ARGUMENT
In Wolfchild VIII, this Court aptly described the “Herculean task the
plaintiffs and plaintiff-intervenors undertook to prepare this case for a final
resolution.” 101 Fed. Cl. at 87. The Wolfchild Plaintiffs’ 2005 transcript
excerpt cited by the Court immediately thereafter reflects the tremendous
cost and expense incurred by the Plaintiffs and the Plaintiff-Intervenors.
These burdens were incurred at the instance of the Government which
“demanded from the inception of this case that all plaintiffs be individually
named and identified as lineal descendants in this case.” Id. The same
burdens were borne by the Plaintiff-Intervenors.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 16 of 22
14
This Court found that the Department of Interior “is charged with the
task of determining whether each claimant’s supporting documentation
demonstrates lineal descendancy.” Id. at 88. Based upon the Department’s
“error,” this Court ordered the Government to “reimburse plaintiffs and
plaintiff-intervenors for the costs of preparing the materials that Plaintiffs
submitted in support of their claims of eligibility to the stipulated funds.” Id.
Yet, that was ordered over a year ago, and no payment or plan for payment
has been offered to the Plaintiffs or Plaintiff-Intervenors. The Government
has been able to develop and submit an extensive draft report and
preliminary plan for public comment, but has not moved on the issue of
reimbursing the Plaintiffs and Plaintiff-Intervenors for these costs.
The Government has failed to brief the “cost reimbursement”
judgment issue in the Court of Claims and the Federal Circuit.
Consequently, the issue must be deemed abandoned. See Sheets v. United
States, 2 Cl. Ct. 101, 102 (1983), n. 2.4 As a consequence, the Government
has a present, enforceable duty to reimburse the Plaintiffs and the Plaintiff-
Intervenors for their costs, like any other judgment against the United States.
4 Citing Webco Lumber, Inc. v. United States, 230 Ct. Cl. 457, 677 F.2d 860,
864 (1982); Ulman v. United States, 214 Ct. Cl. 308, 314, 558 F.2d 1, 4
(1977).
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 17 of 22
15
The Government should be compelled to immediately pay the Court
ordered eligibility costs and expenses, ordered over a year ago, plus interest
and the legal costs to prepare and file the present motion and otherwise
participate in all other proceedings to collect the Court’s judgment
concerning these costs. This Court should likewise adjudge that the Equal
Access to Justice Act, 28 U.S.C. § 2412, as inapplicable to these costs.
These costs should be adjudged like any other judgment against the United
States, without regard to the EAJA.
WHEREFORE, the Plaintiff-Intervenors request this Court issue a
briefing schedule on the cost submissions and the legal issues regarding the
Department of Interior’s payment of these costs to the Plaintiff and Plaintiff-
Intervenors. The Court is requested to require the United States to
immediately brief any issues purportedly preventing the prompt payment of
these costs, establish a schedule for the presentation of cost claims,
appropriate responses and replies and otherwise schedule the presentation of
any other related issues. The United States should be further obligated to
pay the costs at the market rate applicable at the time of incurring these
costs, without regard to the EAJA or cases interpreting the law.
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 18 of 22
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Respectfully Submitted,
/s/ Barry P. Hogan
Barry P. Hogan
RENAUD COOK DRURY MESAROS, PA
One North Central Avenue, Suite 900
Phoenix, Arizona 85004-4417
Cell: [phone]
Office: [phone]
[e-mail]
ATTORNEY FOR THE RENAUD JOHN
DOES, AKA BLAIR JOHN
DOES, AKA JOHN DOES 1-433
R. Deryl Edwards, MO# 48277
606 South Pearl
Joplin, Missouri 64801-2582
Telephone: [phone]
Facsimile: [phone]
[e-mail]
FOR THE PLAINTIFF-INTERVENORROBERTSON-
VADNAIS GROUP
/s/ Gary J. Montana
Gary J. Montana
MONTANA & ASSOCIATES
N12923 North Prairie Road
Osseo, Wisconsin 54758
Telephone: [phone]
ATTORNEY FOR THE JULIA DUMARCE
GROUP
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 19 of 22
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/s/ Robin L. Zephier
Robin L. Zephier
ABOUREZK & ZEPHIER, P.C.
P. O. Box 9460
Rapid City, South Dakota 57709
Telephone: [phone]
ATTORNEY FOR ZEPHIER GROUP
/s/ Randy V. Thompson
Randy V. Thompson, #122506
Robert J. Leighton, Jr., #220735
710 Lawson Commons
380 St. Peter Street
St. Paul, Minnesota 55102
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR THE ABRAHAMSON
GROUP
/s/ Kelly Hope Stricherz
Kelly Hope Stricherz
213 Forest Avenue
P.O. Box 187
Vermillion, South Dakota 57069
Telephone: [phone]
ATTORNEY FOR THE MOZAK GROUP
/s/ Scott A. Johnson
Scott A. Johnson (#124606)
Todd M. Johnson (# 52061)
JOHNSON LAW GROUP, LLC
10580 Wayzata Boulevard, Suite 250
Minnetonka, Minnesota 55305
ATTORNEYS FOR THE FELIX,
COURSOULLE, PRESCOTT AND
TAYLOR GROUPS
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 20 of 22
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/s/ Jack Pierce
Jack E. Pierce
BERNICK LIFSON, P.A.
5500 Wayzata Boulevard, Suite 1200
Minneapolis, Minnesota 55416
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEY FOR THE GODOY ET AL.
INTERVENOR
/s/ Elizabeth T. Walker
Elizabeth T. Walker
WALKER LAW, LLC
429 North Saint Asaph Street
Alexandria, Virginia 22314
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEY FOR WALKER, KITTO,
AND ENYARD INTERVENOR
PLAINTIFFS
/s/ Larry B. Leventhal
Larry B. Leventhal
LARRY LEVENTHAL & ASSOCIATES
319 Ramsey Street
St. Paul, MN 55102
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEY FOR THE INTERVENOR
BURLEY GROUP
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 21 of 22
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/s/ Creighton Thurman
Creighton A. Thurman
CREIGHTON A. THURMAN, ATTORNEY AT LAW
P. O. Box 897
Yankton, South Dakota 57078
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEY FOR THE COURNOYER,
ROBINETTE, KIMBELL AND WANNA,
ET AL. GROUP
Certificate of Service
The undersigned certifies that he filed the foregoing Response to the
Wolfchild Plaintiffs’ Objection to Doc.# 1126-1 using the Federal Circuit’s
ECF filing system this 19th day of November, 2012.
/s/ Barry P. Hogan
Barry P. Hogan
809405_1
Case 1:03-cv-02684-CFL Document 1138 Filed 11/19/12 Page 22 of 22


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