JOINT PRELIMINARY STATUS REPORT BY INTERVENORS

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Case 1:03-cv 02684-CFL Document 499 Filed 06/15/2007 Page 1 of 8


IN THE UNITED STATES COURT OF FEDERAL CLAIMS


SHELDON PETERS WOLFCHILD, et al, and WOLFCHILD INTERVENORS, et al,
Plaintiffs, vs THE UNITED STATES,
Defendant, and ALL INTERVENORS,

CASE NO. 03-2684L
Judge Charles F. Lettow
JOINT PRELIMINARY STATUS REPORT BY INTERVENORS



Pursuant to RCFC Appeadix G, paragraph 3, and pursuant to the Court's April 27,2007 Order, all Intervenors file the following Joint Preliminary Status Report:

MEETING OF INTERVENORS, COUNSEL AND SELECTION OF COORDINATING COUNSEL FOR GROUPS A & B

Pursuant to the Court's April 27,2007, Order on June 5, 2007, a meeting of Intervenors'

Counsel was held in Sioux Falls, South Dakota, at Intervenor's attorney Nicole Nachtigal Emerson's office

The following attorneys attended in person: Kelly H Stricherz (Mozak Group);

Wood R Foster, Jr (Blaeser, Low, Whipple and Lafferty Groups);

Nicole Nachtigal Emerson (Garreau [Hall] Group);

Garrett J Horn (Trudell, Saul, Ferris, Taylor, Henry and Vassar Groups);

Creighton Thurman (French, Wanna, Cournoyer, Kimbell and Robinette Groups);

SamS, Killinger and Karrie Hruska (Enyard and Kitto Groups);

Gary J Montana (Julia DuMarce Group);

Robin L Zephier (Zephier Group);

Brian L Radke (Schroder Group);

Royce Deryl Edwards (Vandnais [Robertson] Group);

and Barry Hogan (Renaud John Does 1 433 Group),

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The following attorneys attended by telephone: Bernard J Rooney (Rooney Group); Elizabeth I

Walker (Anonymous Walker Group); Scott A Johnson (Rocque Group); Lairy Leventhal (Butley Group);

Randy V Thompson (Abrahamson Group); Jack E Pierce (I Cermak, R. Cermak, Si, Klingberg Groups,Alkire, Arnold. Henderson, Stephens and Godoy Groups);

James L Blah (AnonymousBlair Group);

Frances Felix (pio se) (Felix Group)

Others in attendance with Gary Montana were Tamora Tordsen and Ion Brings; with Wood Poster, Ir, was Lenor Scheffler; with Royce Edward was Dave Belos

A draft of a Joint Preliminary Status Report to be circulated to counsel was completed,

followed by selection of coordinating counsel,

assistants to coordinating counsel and alternate coordinating counsel for the A and B Groups as follows:

A Group Coordinating Counsel: Sara S Killinger

Assistant to Coordinating Counsel A Group: Kelly H Stricherz

Alternate Coordinating Counsel A Group: Garrett J Horn

Assistant to Alternate Coordinating Counsel A Group: Nicole Nachtigal Emerson

B Gioup Coordinating Counsel: Gary Montana

Assistant to Coordinating Counsel B Group: Robin Zephier

Alternate Coordinating Counsel B Group: Creighton Thurman

Assistant to Alternate Coordinating Counsel B Group: Barry Hogan

The following is a finalized Joint Preliminary Status Report:

a. Does the Court have jurisdiction over the action?

Intervenors state that the Court has jurisdiction for this suit and that the Court has jurisdiction to entertain this suit

b. Should the case be consolidated with any other case?

Not at this time.


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c. Should trial of liability and damages be bifurcated? Trial should be trifurcated:
(1) legal issues; (2) genealogical descendancy; and (3) damages.


d Should further proceedings in this case be deferred pending consideration of'another case before this Court or any other tribunal?

No

e. Will a remand or suspension be sought?

No.

f. Will additional parties be joined?

Pursuant to the Court's Apiil 27, 2007, Order,

it appears that adding additional Plaintiffs, other than the exception of newborn children of parties already in the lawsuit, will not be allowed

It further appears from the Court's April 27, 2007, Order, Defendant United States would have the option to add the Shakopee and Piairie Island communities as parties from whom it seeks indemnity


g. Do the parties intend to file a motion pursuant to RCFC 12(b) 12(e), or 56?

At this time the parties do not believe they would be filing a motion pursuant to RCFC 12(b) 0r 12(e),

The paities do contemplate the filing of motions for summary judgment under RCFC 56.h

What are the relevant issues?

In discussion of the relevant issues the Intervenors' counsel used the five items listed under C-Prepatation for Further Proceedings,

beginning at page 19 and continued on to page 20 of the Court's April 27, 2007 Order A discussion of those five items is as follows:

(1) Delineating the Trust created by the 1888.1889 and 1890 Appropriation Acts.

The Court has previously held that a Trust-was created and is ongoing.

The issues with regard to the Trust are

who is a beneficiary of the Trust

and what are the damages flowing from the breach of this Trust by the Defendant United States

(2) Accounting for the Trust corpus by the Department of the Interior and its agents after enactment of the 1980 Act An all inclusive accounting,

including but not limited to, casino

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revenues, lands and revenues generated from such lands in the Trust corpus

This accounting should show all disposition of 1886 lands since the inception of the Trust.

The accounting should be prepared in accordance with generally acceptable accounting principals

and should be done on a yearly basis

beginning with the year 1980.

The accounting should be completed and submitted to Plaintiffs and Intervenors

on or before Febiuaiy 2, 2008

(3) Addressing the current legal status of the 1886 lands

The 1886 lands and the revenues generated therefrom are still a part of the trust corpus for the benefit of those who are determined to be beneficiaries of the trust

This would include the lands held by the communities including

(i) 1886 lands;

(ii) 1934 IRA lands;

(iii) "red seal" lands;

and (iv) after-acquired lands purchased with assets that are determined to be Trust assets or proceeds thereof whether or not placed in the Trust or restricted status

(4) Explicating and applying the criteria for determining whether a Plaintiff or Intervening Plaintiff qualifies as a lineal descendant of a loyal Mdewakanton and thus a beneficiary of the trust

The standard of proof should be by relevant genealogical evidence

unless rebutted by conclusive evidence to the contrary '

The Court should admit into evidence as proof that a Plaintiff qualifies as a beneficiary of the trust

including (but not limited to) the following:

(i) birth records;

(ii) baptismal records;

(iii) probate records including BIA probate records;

(iv) family bibles;

(v) church records;

(vi) photos of headstones;

(vii) death certificates;

(viii) oral tradition;

(ix) census roles;

(x) allotment roles/records;

(xi) obituaries/newspaper articles;

(xii) family trees;

(xiii) BIA family tees;

(xiv) land records;

(xv) historical accounts;

(xvi) testimony of qualified experts; and

(xvii) relevant testimony of'Plaintiffs

1 The question of how documents need to be authenticated needs to be clarified, e g, whether certified copies will be required


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(5) Determining the monetary relief to which individual claimants might be entitled.

The predicate to the determination of the monetary relief is Plaintiffs' and Intervenors' receipt of the all inclusive accounting referred to in item h{2) above

Intervenors believe that the following issue(s) also exist:

1 How does the February 16, 1863 Act (12 Stat 652-654) regarding the substantive language "to their heirs forever"

relate to the creation of the beneficiary class involved in this suit?


2 Should the Act of February 16,1963, be considered an Enabling Act

for purposes of the
1888, 1889 and 1890 Appropriations Acts?


3. Would there even exist a beneficiary group in this case

"but for" the language contained in the substantive provisions of the 1861 Act that states

"to their heirs forever"?


4 What other censuses or evidence should be utilized regarding substantiating proof that a plaintiff should be a member oi the beneficiary class?


5 Should each and every individual who is a member of the beneficiaiy class be required to show their ancestor was loyal or considered a friendly Sioux?


6 What individuals that appear on the 1886 and 1889 censuses should be discounted based upon lack of loyalty?


7. How do we establish whether a plaintiffs' ancestor had severed tribal relations?


8. What is meant by severing tribal relations or how do we establish an individual has
severed tribal relations?


9 What role do the mixed blood Mdewakanton play in any potential settlement in this
matter?



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10 What role do the Scout lists play in determining members of the potential beneficiary class?


11 Should the McLaughlin Censuses of 1899 & 1917 be utilized in determining whether a member is a member of the beneficiary class?


12 How does the Court establish, the class of plaintiffs that fall within the "removing to Minnesota" members of the beneficiary class?


13 How should discovery procedurally occur regarding requests for production of documents

between plaintiff's attorneys?

A. Records currently in the possession of Wicanchpi Research, should be made available to
all intervening plaintiff's

B BIA refusal to release documentation of individual probate and family trees in their
possession


14 Obtaining the listing of the Defendant, United States regarding who they believe should be included in the beneficiary class,

There are discussions ongoing regarding this by Intervenors

1 attorney Kelly Stricherz and U.S Attorney Laura Maroldy


15 What standard of genealogical evidence should be utilized in determining the beneficiary group members?


16 What standards of proof should be considered admissible by the Court?

i e With records,

probate,

bibles,

headstones,

death certificates,

oral tradition, etc


17. Translation of Dakota names to English names

who should be qualified expert?


18 How do we treat accepting annuities at other reservations

during the relevant period -

- should
it be considered an issue relating to severing tribal relations?



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19 How should we treat the fact that many individuals received allotments of lands on other reservations,

including some on the 1886 & 1889 censuses?


20 Should we accept or reject the conclusion contained in a lettet dated, 1971, by a Department of Interior, Field Solicitor that the names of individuals appearing on the 1886 & 1889 censuses "

are an adequate proxy for friendliness , "?

A. What about the feelings of Agent Henton regarding certain individuals who appeal on the
1886 & 1889 censuses as "having blood on their hands... "?

B What about the feelings of the local whites about individuals listed on the 1886 & 1889
censuses? (Redwood Gazette)

C "What issues are raised as to those individuals who were imprisoned at Davenport and
went on trial,

but whose names appeal on the 1886 & 1889 censuses?


21. Should the term "lineal descendants" be utilized or "heirs"? See, February 16,1863 Act



22. Whether the prospective issue of aboriginal claim or aboriginal lights of the individuals and
potentially the bands be considered


23 Whether the Bureau of Indian Affair's should begin providing

(a) genealogical materials; and


(b) family trees which had been provided to interested parties prior to this case

i Can the case be settled?

Yes,

but not until Plaintiffs/Intervenors receipt of the all inclusive accounting referred to in h(2) above


j Do the parties anticipate, proceeding.to trial and does either party, or do the parties jointly. request expedited trial scheduling?

If the case is not settled Intervenors anticipate proceeding to trial.

They do not request expedited trial scheduling


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k Are there, any speciat issues regarding electronic case management needs?

Whether filings pilot to this case going on electronic case management can be made available electronically


1, Is there any other information of which the Court should be aware at this time?

At this time, the Inteivenors are not aware of any othei information,


In accordance with RCFC. Appendix G, paragraph 4, the Intervenors submit the attached discovery plan



Respectfully submitted,
RAWLINGS, NIELAND), PROBASCO, KILLINGER, ELLWANGER, JACOBS & MOHRHAUSER, L L P



By:
SAMS KELLINGER
522 4th Street, #300
Sioux City, IA 51101
Telephone: [phone]
Fax: [phone] ;
E-Mail: skillingsnieland.com

COORDINATING COUNSEL FOR GROUP A


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

MONTANA & ASSOCIATES

GARY JOHN MONTANA
N12923 North Prairie Road
Osseo, WI 54758
Telephone: [phone]
Fax: [phone]
E-Mail: [e-mail]

COORDINATING COUNSEL FOR GROUP B



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WOLFCfflLD V. US.

RCFC Appendix G, paragraph 4, Interventors' Discovery Plan

RCFC 16,, Pretrial Conferences; Scheduling; Management



1, November 6,2007: Disclosures under RCFC 26 (a) 90 days from August 6,2007


2 January 16,2008: TrialVHeaiing on the Legal Issues (issues listed in this submission except
accounting and damages as set forth in Wolchild IV pp 19-20 items 1-3-4


3 February 5,2008: Submission of "All Inclusive Accounting" by U.S. to all parties (180 days from August 6, 2007)


4 April 18, 2008: Completion of 'Discovery on Who Qualifies as a Trust Beneficiary\Lineal Descendant.


5 May 19,2008: Motions For Summary Judgment on Who Qualifies as a Trust Beneficiary,


6 September 15,2008: Trial Date foi determination of Who Qualifies as a Tust Beneficiary
Descendant


8. November 17, 2008: Completion of Discovery on detelmination of monetary relief to which
claimants might be entitled


9 December' 17,2008: Motions For Summary Judgment on determination of monetary relief to which claimants might be entitled


10 April 20,2009: Trial Date on determination of monetary relief to which claimants might be entitled


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Note by me Denney I do not see a 7 listed ? on this it must be a missed count

[mdenney]

I denney did change the format from pdf to html to post it like this , but by doing this I had troubles with the reading of the letters of the pdf pages because of the bad print that the transcript had so I tried to correct any spelling that my machine did not read right

I copied it from here link below-

www.mklaw.com/documents/JointPreliminaryStatus.pdf



Thankyou

denney