Post by mdenney on Apr 27, 2007 17:54:54 GMT -5
Wolfchild IV - Opinion and Order Dated April 27, 2007
In the United States Court of Federal Claims
No. 03-2684L & No. 01-568L (consolidated)
(Filed: April 27, 2007)
************************************
)
SHELDON PETERS WOLFCHILD, et al., ) Indian trust claims based upon
) Appropriation Acts for the Department
Plaintiffs, ) of the Interior in 1888, 1889, and 1890;
) Indian Trust Accounting Statute; motion
v. ) to quash summonses; case or controversy;
) amendment of complaint and complaints
UNITED STATES, ) of intervening plaintiffs; RCFC 15(a);
) intervention as plaintiffs; RCFC 24
Defendant. )
)
************************************
Erick G. Kaardal, Mohrman & Kaardal, PA, Minneapolis, MN, for Wolfchild plaintiffs.
With him on the brief was William F. Mohrman, Mohrman & Kaardal, P.A., Minneapolis, MN.
Lawrence H. Crosby, Crosby & Associates, St. Paul, MN, for Cermak plaintiffs.
Laura Maroldy, Trial Attorney, Natural Resources Section, Environment and Natural
Resources Division, United States Department of Justice, Washington, D.C., for defendant. With
her on the briefs were Matthew J. McKeown, Acting Assistant Attorney General, and Tom Zia
and Sara Culley, Trial Attorneys, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C. Of counsel were Janet Goodwin and Angela Kelsey,
Office of the Solicitor, Department of the Interior, Washington, D.C.
Eric J. Magnuson, Rider Bennett, LLP, Minneapolis, MN, for intervening plaintiff Lower
Sioux Indian Community.
Jack E. Pierce, Pierce Law Firm, PA, Minneapolis, MN, for the Stephens, R. Cermak, J.
Cermak, Henderson, Klingberg, Alkire, Arnold, and Godoy groups of intervening plaintiffs.
Kelly H. Stricherz, Vermillion, SD, for the Mozak group of intervening plaintiffs.
Garrett J. Horn, Horn Law Office, Yankton, SD, for the Saul, Trudell, Taylor, Ferris,
Henry, and Vassar groups of intervening plaintiffs.
2
Creighton A. Thurman, Yankton, SD, for the Cournoyer, Robinette, Kimbell, French, and
Wanna groups of intervening plaintiffs.
Elizabeth T. Walker, Walker Associates, Alexandria, VA, for the anonymous Walker
group of intervening plaintiffs.
Robin L. Zephier, Abourezk & Zephier, PC, Rapid City, SD, for the Zephier group of
intervening plaintiffs.
David Garelick, Larry Leventhal & Associates, St. Paul, MN, for the Burley group of
intervening plaintiffs.
Wood R. Foster, Jr., Siegel, Brill, Greupner, Duffy & Foster, PA, Minneapolis, MN, for
the Lafferty, Blaeser, Whipple, and Lowe groups of intervening plaintiffs.
Sam S. Killinger, Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs &
Mohrhauser, LLP, Sioux City, IA, for the Enyard group of intervening plaintiffs and for the Kitto
group of applicants for intervention.
Bernard J. Rooney, Amherst, WI, for the Rooney group of intervening plaintiffs.
Scott A. Johnson, Johnson Law Group, Minnetonka, MN, for the Rocque group of
intervening plaintiffs and for the Margaret Prescott group of applicants for intervention.
James L. Blair, Renaud, Cook, Drury, Mesaros, PA, Phoenix, AZ, for the anonymous
Blair group of intervening plaintiffs. With him on the briefs was Barry P. Hogan, Renaud, Cook,
Drury, Mesaros, PA, Phoenix, AZ.
Gary J. Montana, Montana & Associates, Osseo, WI, for the Julia DuMarce group of
intervening plaintiffs.
Nicole N. Emerson, Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, SD, for the
Garreau group of intervening plaintiffs.
Douglas Kettering, Kettering Law Office, Yankton, SD, for the Ke Zephier group of
intervening plaintiffs.
Randy V. Thompson, Nolan, MacGregor, Thompson & Leighton, St. Paul, MN, for the
Abrahamson group of intervening plaintiffs.
Frances Felix, pro se, Minneapolis, MN, for herself and members of the immediate Felix
family as intervening plaintiffs.
Royce Deryl Edwards, Jr., Joplin, MO, for the Vadnais group of applicants for
intervention.
1Jurisdictionally, the Wolfchild action has been brought under the Tucker Act, 28 U.S.C.
§ 1491(a), and the Indian Tucker Act, 28 U.S.C. § 1505. Each of the plaintiffs and intervening
plaintiffs alleges that he or she is a lineal descendant of a loyal Mdewakanton. The lineal
descendants of the loyal Mdewakanton are an “identifiable group of American Indians” within
the meaning of the Indian Tucker Act, 28 U.S.C. § 1505, and accordingly this is a collective
action under that Act. See Wolfchild III, 72 Fed. Cl. at 517; Wolfchild I, 62 Fed. Cl. at 539.
3
Philip W. Morgan, Britton, SD, for the Youngbear and Marvel DuMarce groups of
applicants for intervention.
Brian L. Radke, Radke Law Office, P.C., Sioux Falls, SD for the Schroder group of
applicants for intervention.
Philip Baker-Shenk, Holland & Knight LLP, Washington, DC, for the Shakopee
Mdewakanton Sioux Community and the Prairie Island Indian Community. With him at the
hearing were Brian B. O’Neill and Richard A. Duncan, Faegre & Benson LLP, Minneapolis,
MN. With him on the briefs was Philip R. Mahowald, General Counsel, Prairie Island Indian
Community, Welch, MN. Of counsel was Kurt V. BlueDog, BlueDog, Paulson, & Small, PLLP,
Bloomington, MN.
OPINION AND ORDER
LETTOW, Judge.
Over 20,000 individuals claiming descent from persons who were members of the
Mdewakanton band of Sioux Indians and who assisted white settlers in Minnesota during the
1862 Sioux uprising (the “loyal Mdewakanton”) have brought suit or have sought to join suit
against the United States in this Indian trust case. See Wolfchild v. United States, 62 Fed. Cl.
521, 526-29 (2004) (“Wolfchild I”) (summarizing the history of the 1862 Sioux uprising and the
posture of the loyal Mdewakanton). Prior proceedings in this action addressed the nature and
viability of the Indian trust claims brought by the lineal descendants of the loyal Mdewakanton
and resolved many of the party-related issues arising in this collective action. See Wolfchild I, 62
Fed. Cl. 521; Wolfchild v. United States, 68 Fed. Cl. 779 (2005) (“Wolfchild II”); Wolfchild v.
United States, 72 Fed. Cl. 511 (2006) (“Wolfchild III”).1 Yet a further cluster of party-related
disputes has arisen. Pending before the court are a motion filed by the Shakopee Mdewakanton
Sioux Community and the Prairie Island Indian Community (“Objecting Communities” or the
“two communities”) to quash summonses issued to bring them into the case, as well as a series of
motions brought by groups of intervening plaintiffs and applicants for intervention seeking to add
or regroup intervening plaintiffs.
In addressing these party-related motions by this decision, the court continues its efforts –
originally foreshadowed in Wolfchild I, 62 Fed. Cl. at 552-55, and Wolfchild II, 68 Fed. Cl. at
2The three Appropriation Acts are the Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29;
the Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93; and the Act of Aug. 19, 1890, ch. 807, 26
Stat. 336, 349.
3As defined in the Appropriation Acts, the initial trust beneficiaries were “Indians in
Minnesota, belonging to the Medawakanton [sic] band of Sioux Indians, who have resided in
said State since [May 20, 1886] . . . and severed their tribal relations.” Act of June 29, 1888, 25
Stat. at 228; accord Act of Mar. 2, 1889, 25 Stat. at 992; Act of Aug. 19, 1890, 26 Stat. at 349.
These Indians had been loyal to the United States during the Sioux uprising, which began in
Minnesota in August 1862 and claimed the lives of more than 500 white settlers and numerous
Indians. See Wolfchild I, 62 Fed. Cl. at 526. By aiding the whites, many of the loyal Indians lost
their homes and property, and Congress concluded that their lives would be in danger were they
to return to their tribes. Id. (quoting Cong. Globe, 38th Cong., 1st Sess. 3516 (1864)).
The explicit statutory definitional reference to Indians “who have resided in said State
since . . . [May 20, 1886],” was to a census prepared by U.S. Special Agent Walter McLeod, who
determined on behalf of the Commissioner of Indian Affairs which Mdewakanton Indians (1)
were loyal to the United States during the 1862 uprising, (2) had renounced their tribal relations,
and (3) had remained in Minnesota. See Wolfchild I, 62 Fed. Cl. at 528. Under the 1889 and
1890 Appropriations Acts, the beneficiaries included both the loyal Mdewakanton and their
families. Act of Mar. 2, 1889, 25 Stat. at 992 (monies to be appropriated for “these Indians or
family thereof”); Act of Aug. 19, 1890, 26 Stat. at 349 (monies to be appropriated for “these
Indians or families thereof”).
4The three Indian communities are the Lower Sioux Indian Community, the Shakopee
Mdewakanton Sioux (Dakota) Community, and the Prairie Island Indian Community in
Minnesota. 94 Stat. at 3262.
4
795-801 – to oversee and complete an orderly means for “joinder of additional parties” in this
collective action. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989).
BACKGROUND
Initially, over 250 plaintiffs originally filed the Wolfchild action in November 2003.
Thereafter, this court granted a motion by those plaintiffs for a partial summary judgment that
(1) a trust, which included land, improvements to land, and monies as the corpus, was created in
connection with, and as a result of, provisions in appropriation acts for the Department of the
Interior in 1888, 1889, and 1890 (“Appropriations Acts”)2 that provided money to be expended
under specific directions for the benefit of the loyal Mdewakanton and their lineal descendants,3
(2) such trust was neither extinguished nor terminated by the Act of December 19, 1980, Pub. L.
No. 96-557, 94 Stat. 3262 (the “1980 Act”), which converted interests of the United States in the
property at issue to a holding in trust for three Indian communities located in Minnesota,4 and
5The court determined that plaintiffs’ contractual claims had not survived because of the
six-year statute of limitations applicable to claims brought under the Tucker Act, but that their
trust claims had been preserved by the Indian Trust Accounting Statute. Wolfchild I, 62 Fed. Cl.
at 547-49; see Department of the Interior and Related Agencies Appropriations Act, 2004, Pub.
L. No. 108-108, 117 Stat. 1241, 1263 (2003). The Indian Trust Accounting Statute, with minor
variations, has been enacted for fiscal years 1991 to 2006 as part of the annual appropriations
statute for the Department of the Interior. It provides that the statute of limitations for claims
alleging mismanagement or loss of Indian trust funds shall not begin to run until the beneficiaries
have been given an accounting. See 117 Stat. at 1263 (fiscal year 2004 version); accord
Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006, Pub.
L. No. 109-54, 119 Stat 499, 519 (2005) (fiscal year 2006 version); see also Shoshone Indian
Tribe of Wind River Reservation v. United States, 364 F.3d 1339, 1347 (Fed. Cir. 2004);
Wolfchild I, 62 Fed. Cl. at 534-535 & n.10.
6In addition, the court addressed the related case of Cermak v. United States, No.
01-568L. In that case, the government’s motion for entry of final judgment insofar as the
Cermaks’ takings and breach-of-duty claims were concerned was granted in part. Wolfchild III,
72 Fed. Cl. at 540. The court denied in part the government’s motion by (1) vacating a 2002
order by the judge previously assigned to the Cermak case – insofar as that order dismissed the
Cermaks’ trust-mismanagement claim – and (2) reinstating the trust-mismanagement claim. Id.
5
In the United States Court of Federal Claims
No. 03-2684L & No. 01-568L (consolidated)
(Filed: April 27, 2007)
************************************
)
SHELDON PETERS WOLFCHILD, et al., ) Indian trust claims based upon
) Appropriation Acts for the Department
Plaintiffs, ) of the Interior in 1888, 1889, and 1890;
) Indian Trust Accounting Statute; motion
v. ) to quash summonses; case or controversy;
) amendment of complaint and complaints
UNITED STATES, ) of intervening plaintiffs; RCFC 15(a);
) intervention as plaintiffs; RCFC 24
Defendant. )
)
************************************
Erick G. Kaardal, Mohrman & Kaardal, PA, Minneapolis, MN, for Wolfchild plaintiffs.
With him on the brief was William F. Mohrman, Mohrman & Kaardal, P.A., Minneapolis, MN.
Lawrence H. Crosby, Crosby & Associates, St. Paul, MN, for Cermak plaintiffs.
Laura Maroldy, Trial Attorney, Natural Resources Section, Environment and Natural
Resources Division, United States Department of Justice, Washington, D.C., for defendant. With
her on the briefs were Matthew J. McKeown, Acting Assistant Attorney General, and Tom Zia
and Sara Culley, Trial Attorneys, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C. Of counsel were Janet Goodwin and Angela Kelsey,
Office of the Solicitor, Department of the Interior, Washington, D.C.
Eric J. Magnuson, Rider Bennett, LLP, Minneapolis, MN, for intervening plaintiff Lower
Sioux Indian Community.
Jack E. Pierce, Pierce Law Firm, PA, Minneapolis, MN, for the Stephens, R. Cermak, J.
Cermak, Henderson, Klingberg, Alkire, Arnold, and Godoy groups of intervening plaintiffs.
Kelly H. Stricherz, Vermillion, SD, for the Mozak group of intervening plaintiffs.
Garrett J. Horn, Horn Law Office, Yankton, SD, for the Saul, Trudell, Taylor, Ferris,
Henry, and Vassar groups of intervening plaintiffs.
2
Creighton A. Thurman, Yankton, SD, for the Cournoyer, Robinette, Kimbell, French, and
Wanna groups of intervening plaintiffs.
Elizabeth T. Walker, Walker Associates, Alexandria, VA, for the anonymous Walker
group of intervening plaintiffs.
Robin L. Zephier, Abourezk & Zephier, PC, Rapid City, SD, for the Zephier group of
intervening plaintiffs.
David Garelick, Larry Leventhal & Associates, St. Paul, MN, for the Burley group of
intervening plaintiffs.
Wood R. Foster, Jr., Siegel, Brill, Greupner, Duffy & Foster, PA, Minneapolis, MN, for
the Lafferty, Blaeser, Whipple, and Lowe groups of intervening plaintiffs.
Sam S. Killinger, Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs &
Mohrhauser, LLP, Sioux City, IA, for the Enyard group of intervening plaintiffs and for the Kitto
group of applicants for intervention.
Bernard J. Rooney, Amherst, WI, for the Rooney group of intervening plaintiffs.
Scott A. Johnson, Johnson Law Group, Minnetonka, MN, for the Rocque group of
intervening plaintiffs and for the Margaret Prescott group of applicants for intervention.
James L. Blair, Renaud, Cook, Drury, Mesaros, PA, Phoenix, AZ, for the anonymous
Blair group of intervening plaintiffs. With him on the briefs was Barry P. Hogan, Renaud, Cook,
Drury, Mesaros, PA, Phoenix, AZ.
Gary J. Montana, Montana & Associates, Osseo, WI, for the Julia DuMarce group of
intervening plaintiffs.
Nicole N. Emerson, Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, SD, for the
Garreau group of intervening plaintiffs.
Douglas Kettering, Kettering Law Office, Yankton, SD, for the Ke Zephier group of
intervening plaintiffs.
Randy V. Thompson, Nolan, MacGregor, Thompson & Leighton, St. Paul, MN, for the
Abrahamson group of intervening plaintiffs.
Frances Felix, pro se, Minneapolis, MN, for herself and members of the immediate Felix
family as intervening plaintiffs.
Royce Deryl Edwards, Jr., Joplin, MO, for the Vadnais group of applicants for
intervention.
1Jurisdictionally, the Wolfchild action has been brought under the Tucker Act, 28 U.S.C.
§ 1491(a), and the Indian Tucker Act, 28 U.S.C. § 1505. Each of the plaintiffs and intervening
plaintiffs alleges that he or she is a lineal descendant of a loyal Mdewakanton. The lineal
descendants of the loyal Mdewakanton are an “identifiable group of American Indians” within
the meaning of the Indian Tucker Act, 28 U.S.C. § 1505, and accordingly this is a collective
action under that Act. See Wolfchild III, 72 Fed. Cl. at 517; Wolfchild I, 62 Fed. Cl. at 539.
3
Philip W. Morgan, Britton, SD, for the Youngbear and Marvel DuMarce groups of
applicants for intervention.
Brian L. Radke, Radke Law Office, P.C., Sioux Falls, SD for the Schroder group of
applicants for intervention.
Philip Baker-Shenk, Holland & Knight LLP, Washington, DC, for the Shakopee
Mdewakanton Sioux Community and the Prairie Island Indian Community. With him at the
hearing were Brian B. O’Neill and Richard A. Duncan, Faegre & Benson LLP, Minneapolis,
MN. With him on the briefs was Philip R. Mahowald, General Counsel, Prairie Island Indian
Community, Welch, MN. Of counsel was Kurt V. BlueDog, BlueDog, Paulson, & Small, PLLP,
Bloomington, MN.
OPINION AND ORDER
LETTOW, Judge.
Over 20,000 individuals claiming descent from persons who were members of the
Mdewakanton band of Sioux Indians and who assisted white settlers in Minnesota during the
1862 Sioux uprising (the “loyal Mdewakanton”) have brought suit or have sought to join suit
against the United States in this Indian trust case. See Wolfchild v. United States, 62 Fed. Cl.
521, 526-29 (2004) (“Wolfchild I”) (summarizing the history of the 1862 Sioux uprising and the
posture of the loyal Mdewakanton). Prior proceedings in this action addressed the nature and
viability of the Indian trust claims brought by the lineal descendants of the loyal Mdewakanton
and resolved many of the party-related issues arising in this collective action. See Wolfchild I, 62
Fed. Cl. 521; Wolfchild v. United States, 68 Fed. Cl. 779 (2005) (“Wolfchild II”); Wolfchild v.
United States, 72 Fed. Cl. 511 (2006) (“Wolfchild III”).1 Yet a further cluster of party-related
disputes has arisen. Pending before the court are a motion filed by the Shakopee Mdewakanton
Sioux Community and the Prairie Island Indian Community (“Objecting Communities” or the
“two communities”) to quash summonses issued to bring them into the case, as well as a series of
motions brought by groups of intervening plaintiffs and applicants for intervention seeking to add
or regroup intervening plaintiffs.
In addressing these party-related motions by this decision, the court continues its efforts –
originally foreshadowed in Wolfchild I, 62 Fed. Cl. at 552-55, and Wolfchild II, 68 Fed. Cl. at
2The three Appropriation Acts are the Act of June 29, 1888, ch. 503, 25 Stat. 217, 228-29;
the Act of Mar. 2, 1889, ch. 412, 25 Stat. 980, 992-93; and the Act of Aug. 19, 1890, ch. 807, 26
Stat. 336, 349.
3As defined in the Appropriation Acts, the initial trust beneficiaries were “Indians in
Minnesota, belonging to the Medawakanton [sic] band of Sioux Indians, who have resided in
said State since [May 20, 1886] . . . and severed their tribal relations.” Act of June 29, 1888, 25
Stat. at 228; accord Act of Mar. 2, 1889, 25 Stat. at 992; Act of Aug. 19, 1890, 26 Stat. at 349.
These Indians had been loyal to the United States during the Sioux uprising, which began in
Minnesota in August 1862 and claimed the lives of more than 500 white settlers and numerous
Indians. See Wolfchild I, 62 Fed. Cl. at 526. By aiding the whites, many of the loyal Indians lost
their homes and property, and Congress concluded that their lives would be in danger were they
to return to their tribes. Id. (quoting Cong. Globe, 38th Cong., 1st Sess. 3516 (1864)).
The explicit statutory definitional reference to Indians “who have resided in said State
since . . . [May 20, 1886],” was to a census prepared by U.S. Special Agent Walter McLeod, who
determined on behalf of the Commissioner of Indian Affairs which Mdewakanton Indians (1)
were loyal to the United States during the 1862 uprising, (2) had renounced their tribal relations,
and (3) had remained in Minnesota. See Wolfchild I, 62 Fed. Cl. at 528. Under the 1889 and
1890 Appropriations Acts, the beneficiaries included both the loyal Mdewakanton and their
families. Act of Mar. 2, 1889, 25 Stat. at 992 (monies to be appropriated for “these Indians or
family thereof”); Act of Aug. 19, 1890, 26 Stat. at 349 (monies to be appropriated for “these
Indians or families thereof”).
4The three Indian communities are the Lower Sioux Indian Community, the Shakopee
Mdewakanton Sioux (Dakota) Community, and the Prairie Island Indian Community in
Minnesota. 94 Stat. at 3262.
4
795-801 – to oversee and complete an orderly means for “joinder of additional parties” in this
collective action. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 173 (1989).
BACKGROUND
Initially, over 250 plaintiffs originally filed the Wolfchild action in November 2003.
Thereafter, this court granted a motion by those plaintiffs for a partial summary judgment that
(1) a trust, which included land, improvements to land, and monies as the corpus, was created in
connection with, and as a result of, provisions in appropriation acts for the Department of the
Interior in 1888, 1889, and 1890 (“Appropriations Acts”)2 that provided money to be expended
under specific directions for the benefit of the loyal Mdewakanton and their lineal descendants,3
(2) such trust was neither extinguished nor terminated by the Act of December 19, 1980, Pub. L.
No. 96-557, 94 Stat. 3262 (the “1980 Act”), which converted interests of the United States in the
property at issue to a holding in trust for three Indian communities located in Minnesota,4 and
5The court determined that plaintiffs’ contractual claims had not survived because of the
six-year statute of limitations applicable to claims brought under the Tucker Act, but that their
trust claims had been preserved by the Indian Trust Accounting Statute. Wolfchild I, 62 Fed. Cl.
at 547-49; see Department of the Interior and Related Agencies Appropriations Act, 2004, Pub.
L. No. 108-108, 117 Stat. 1241, 1263 (2003). The Indian Trust Accounting Statute, with minor
variations, has been enacted for fiscal years 1991 to 2006 as part of the annual appropriations
statute for the Department of the Interior. It provides that the statute of limitations for claims
alleging mismanagement or loss of Indian trust funds shall not begin to run until the beneficiaries
have been given an accounting. See 117 Stat. at 1263 (fiscal year 2004 version); accord
Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006, Pub.
L. No. 109-54, 119 Stat 499, 519 (2005) (fiscal year 2006 version); see also Shoshone Indian
Tribe of Wind River Reservation v. United States, 364 F.3d 1339, 1347 (Fed. Cir. 2004);
Wolfchild I, 62 Fed. Cl. at 534-535 & n.10.
6In addition, the court addressed the related case of Cermak v. United States, No.
01-568L. In that case, the government’s motion for entry of final judgment insofar as the
Cermaks’ takings and breach-of-duty claims were concerned was granted in part. Wolfchild III,
72 Fed. Cl. at 540. The court denied in part the government’s motion by (1) vacating a 2002
order by the judge previously assigned to the Cermak case – insofar as that order dismissed the
Cermaks’ trust-mismanagement claim – and (2) reinstating the trust-mismanagement claim. Id.
5