Joint Status Report Dated July 20, 2007

[mdenney]

Joint Status Report Dated July 20, 2007


www.mklaw.com/documents/JointStatusReportFinal.pdf

[mdenney]

This is formated in microsoft word so it changes the looks of it but reads the same.

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al,
Case No. 03-2684L & No.. 01-5687L
Judge Charles F. Lettow Plaintiffs,
vs. .•-..-.
/ .
UNITED STATES,
Defendant.
and LOWER SIOUX INDIAN
COMMUNITY, Intervene*.
JOINT STATUS REPORT
July 20, 2007

page 1

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Joint Status Report
Table of Contents
\
Introduction. . ................ ...... , .............. ................. .............................. 1
A, Meeting of Counsel...... ................. ............ ..... ., .......... 1
1 Meeting of June 20, 2007 - Wolfchild and
Intervenor Plaintiffs.......... ............... . ... .... .. .. . .. 1
2 Meeting of July 9, 2007 - Wolfchild and Intetvenot
Plaintiffs......., . .............. ,., ....................... .,,.,...'.... ...2
3,
Meeting of July 12, 2007 Wolfchild, Inteivenoi
Plaintiffs and Defendant United
States ............................................................... ,. ..2
B Genealogical Document Dispute ...... ...........................3
C. Proposed Disclosute Attachments and Appendices............. .3
Defendant's Prefatory Statement... ... ........ ...................................... . .; ., ,4
Joint Status Report............ ...................................................... ........................ 7
a Does the Court have jurisdiction over the action?. ............ .. ...:.........'. ...7
b. Should the case be consolidated with any other case?... .............. ... 8
c. Should trial of liability and damages be bifurcated? , ..............................9
d Should further proceedings in this case be deferred
pending consideration of another case before this Court
or any other tribunal?,...,,,, ......................................... ...... ,„.,.,. ......... .............. ........ 11
e.. Will a remand or suspension be sought?....,.,...........,... .............................. ........12
£ Will additional parties be joined?,,,,, . ........ .............. ............................... ........1.3
g. Do the parties intend to file a motion pursuant to
RCFC 12(b), 12(e), or 56?,,..,,,,, ................ ................................ .... ...........14
h. What are the relevant issues? ......................... ................. ........ ................ ,...,.15

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1. Delineating the Trust created by the 1888. 1889. and 1890 Appropriation
Acts..,,. ........ ............... .. .,,....,,.., ... ....,...,,......,,..15
2. Accounting for the trust corpus by the Department of the Interior and its agents after enactment of the! 980 Act........... ,,,....,,..,.,, ...16
3 Addressing the current legal status
of the 1886 land,,..,.,,',..,.,,. ... ........ .............. ...17
4. Explicating and applying the criteria for
determining whether a Plaintiff or Intervening
Plaintiff qualifies as a lineal descendant of
the Loyal Mdewakanton and thus a
beneficiary of the trust.... .... . ........................... .18
5. Determining the monetary relief to which individual claimants might be entitled.. ..................... ...... ,19
i Can the case be settled? ................ ., ...... ....... ...... . .................................. .......... ............... ..22
j Do the parties anticipate proceeding to trial and does
either party, or do the parties jointly, request expedited
ttial scheduling?.. ............... ........ ,.,......,,.... .................. ........................ . ...... .23
k. Are there any special issues regarding electronic case
management needs?. ....... .................................................. . ....... ,. ... ................ .... ... .,,24
1, Is there any other information of which the Court should
be aware at this time? ................................... .......................... ..................... ................... 25
m. Defendant United States position regarding a (sic) initial
Disclosures and a 'Proposed Discovery Plan"....... ,.....,,..,..,.........28
Proposed Scheduling Order — Attachment 1............. ....................................... 31
Appendix A — General Instructions for Initial Disclosures.... ,. ....... ..............38
Attachment 2 - Genealogical Numbering System, .. , .... .......41


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Supplemental Explanation for All Parties...... ........... .... . ...........42
Alternative Explanation of Intervenor Plaintiffs , .. .................. , ,43
Document Disclosure Instructions — Wolfchild Plaintiffs
Recommendation. .... . ........ , .......... ........ ....... ................................ . ... .44
Document Disclosure Instructions —
IntervenvorPlaintiffs Recommendation ................................................. .................... .... ........ 46
Attachment 3 — Excel Spreadsheet .. ............. ... ............. ................ 47A
Appendix B — Initial Disclosures to All Plaintiffs and Intervenors
Except the Lower Sioux Community......... ............ ......... .. ..... ...........48
Appendix C — Initial Disclosures to the United States... . . ........ ................. ......52
• United States Accounting Forms (Tables 1-5)
• Forms for Calculating Damages for Individual Claimants (Tables 6-7)
Appendix D - Initial Disclosures to the Lower Sioux Community, ,,...,... .........59
Additional Attachments:
Wolfchild Trial Preparation Timetable
May 20, 1886 Census - Handwritten
1889 Supplement to 1886 Census - Handwritten
May 20, 1886 Census - Typed (1886)
Supplement to 1886 Census - Typed (1889)


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------------------Page list starts at one here


WOLFCHILD PLAINTIFFS' PROPOSED JOINT STATUS REPORT
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al,
Case No 03-2684L & No. 01-5687L
Judge Charles F. Lettow Plaintiffs,
vs..
UNITED STATES,
Defendant
and LOWER SIOUX INDIAN
COMMUNITY, Intervene*.
JOINT STATUS REPORT Introduction
A. Meetings of Counsel:
1. Meeting of June 20, 2007 - Wolfchiid and Intetvenor Plaintiffs
The parties submit this Joint Status Report pursuant to the Court's April 27, 2007 Order Before this submission, all intervenors had filed a Joint Preliminary Status Report Likewise, following the Court's instructions, Wolfchild Plaintiffs counsel Mohrman & Kaardal1 drafted a preliminary draft joint status report and circulated a copy to all intervenors,. Most intervenor counsel met on June 20, 2007 at the office of Mohrman & Kaardal to confer on a preliminary draft joint status report Those present agreed to the dates of a proposed scheduling order, Attachment I.2 In
1 Any reference to iCWolfchiId counsel" refers only to Mohrman & Kaardal attorneys and not Intervenor Plaintiffs attorneys..
2 Erick G Kaardal presided over the meeting with William F, Mohrman Counsel appearing on June 20, 2007 included Doug Kettering, co-counsel for the Wolfchild Plaintiffs; Sam Killinger — Wolfchild Plaintiffs and intervenor groups Enyaid, Kitto; Jack Pierce for the intervenor groups Godoy, Stephens, Henerson, Arnold, Alkire,


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addition, discussions also involved the Wolfchild Plaintiffs' proposed initial disclosures..
2. Meeting of July 9, 2007 - Wolfchild and Intervene! Plaintiffs
Wolfchild and intervenor plaintiffs counsel also convened an additional teleconference call to discuss further legal issues, trial timeline, and the initial disclosures on July 9, 2007.3
The discussion focused on attempts to best assist the Court to resolve certain legal issues, specifically regarding standing and the legal criteria for determining the definition of "trust beneficiary.." Counsel determined to file memoranda on representative classifications of individual plaintiffs to meet a suggested filing deadline of December 20, 2007 Counsel suggested a hearing date on the summary judgment motions on February 28 and 29, 2008,
Counsel also discussed that after this Court's order regarding the February 2008 summary judgment motions, those plaintiffs that proceeded on a summary judgment motion on the legal criteria for trust beneficiary status on behalf of less than all of their clients, andif this Court giants thek initial motion, counsel may bring another summary judgment motion to qualify all of their clients under the Court-adopted criteria for trust beneficiary status within 60 days of the date of that order.
3. Meeting of July 12, 2007 - Wolfchild, Intetvenor Plaintiffs and Defendant United States
Wolfchild and intervenor plaintiffs counsel met through a telephonic conference call with the counsel for the United States4 on July 12, 2007 regarding the
Klingberg, and J, Cermack and R Cermack, St.; Kelly Stricherz, for the intervenor group Mozak; Scott Johnson for intervenor group Rocque (Taylor/Prescott); Gary Montana, for intervenor group Julia DuMarce; Robin Zephier, for intervenor group Zephier; Robert Leighton, for intervenor group Abrahamson; Creighton Thurman, for intervenor groups Wanna, Cournoyer, Kimbell, Robinette, and French; Garrett Horn, for intervenor groups Ttudell, Saul, Ferris, Taylor, Henry, and Vassar; Wood Foster, for intervenor groups Blaeser, Lowe, Whipple, and Lafferty Intervenor Lower Sioux Community is in transition of representative counsel, Steve Sandven did participate on behalf of the Community and anticipates making an initial appearance before this Court before August 6, 2007..
3 Erick G. Kaardal presided over the teleconference call. All counsel appeared and Ms.. Felix with the exceptions of Doug Kettering, Liz Walker, Wood Foster, and Brian Rake
4 Erick G., Kaardal presided over the teleconference call with Laura Maroldy, All counsel representing intervenor plaintiffs appeared with the exception of non-counsel


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subject matter embodied within this filed Joint Status Report The United States infbimed all counsel for the first time of its intention to file an interlocutory appeal from this Court's decisions of October 2004, December 2005, and August 2006 orders, Nevertheless, counsel proceeded to discuss the content of the draft Status Report with the United States. The United States on July 18, 2007 submitted written responses for incorporation into this Joint Status Report The result is reflected accordingly
B,. Genealogical Document Dispute
During the initial conference on June 20, 2007 with intervenor counsel, representatives asserted that Wolfchild counsel or representatives prevented access to birth records. In particular, personnel of Augustana College — Center for Western Studies, apparently interfered with access to genealogical records and associated the cause to Wolfchild Plaintiffs' representatives The assertions of intervenor counsel surprised Wolfchild counsel since copies of all genealogical documents reviewed were placed on compact discs and provided to the College for public access
Nevertheless, Wolfchild counsel has provided copies of those same documents to counsel of record who asked
C. Proposed Disclosure Attachments
To facilitate the factual foundation of Wolfchild Plaintiffs' and Inteivenor Plaintiffs' claims, Wolfchild counsel has drafted and ckculated to all counsel proposed disclosures in the format of admissions, interrogatories, and document requests The United States has submitted its own response to the Plaintiffs proposed discovery as incorporated in Subsection "D "5
All intervenor counsel have reviewed the recommended initial disclosures. Furthermore, the disclosures are meant to move this matter to a final disposition in a reasonable amount of time despite the complexity of the issues and the amount of factual data, and more importantly organized to best assist the Court in fact finding
The scope of the initial disclosures is purposely designed to avoid protracted, repetitive, and irrelevant discovery practice causing an unnecessary delay of the final
intervenor Ms. Felix., Also present with the United States counsel Laura Maroldy included Sara Culley and Thomas Zia of the Department of Justice, and James Porter of the Department of the Interior, Office of the Solicitor
5 Wolfchild counsel invited counsel for the United States to participate earlier in the preparation and discussion process of this Report, however, the United States declined Wolfchild counsel's invitation..


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disposition of this lawsuit. Furthermore, all plaintiffs are poised to readily produce their respective documents within the timeframe of the proposed trial timeline.,
• Proposed Scheduling Order - Attachment 1
• Attachment 2 — Genealogical Numbering System
• Attachment 3 — Excel Spreadsheet
• Appendix A - General Instructions for initial disclosures
• Appendix B - Disclosures for all plaintiffs and intervenots,
expect the Lower Sioux Community
• Appendix C — Disclosures for the United States
• Appendix D - Disclosures for the Lower Sioux Community
• Tables 1-4 and 5-7
• Wolfchild Trial Preparation Timeline (spreadsheet)
Defendant's Prefatory Statement
The Court directed the parties to address in their joint report "an identification of the substantive issues that should be addressed in the next several phases of die proceedings and those that should be deferred to later stages of the case." (April 27, 2007, Order, Dkt. No.. 453, at 20).
In Defendant's view, interlocutory review of the Court's October 2004, December 2005, and August 2006, Orders is the best and ultimately most efficient way to address the substantive issues before proceeding (Defendant's motion for interlocutory appeal, filed July 16, 2007, is Dkt. No. 510 in this case,.) As Defendant notes below in its specific responses, other proceedings should be deferred to later stages of the case
The Joint Status Report is respectfully submitted in compliance with this Court's Order of April 27, 2007..
Dated: July 20, 2007
MOHRMAN & KAARDAL, P..A
s/s Brick G. Kaardal
Erick G.. Kaardal, Attorney No. 229647 William F, Mohrman, Attorney No., 168826 3.3 South Sixth Street, Suite 4100 Minneapolis, Minnesota 55402-3601 Telephone: [phone]


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s/s Douglas R. Kettering
Douglas R Ketteting Kettering Law Office P. O Box 668 714 Douglas Avenue Yankton, South Dakota 57078 Telephone: [phone]
Counsel for Wolfchild Plaintiffs
s/s Sam S. Killinger_____________ Sam S.. Killinger Rawlings, Nieland 522 4th Street Suite 300
Sioux City, Iowa 51101 :
Telephone [phone]
Representative Counsel for "Group A" Plaintiffs
s/s Gary John Montana_____________
Montana & Associates
N 1292.3 North Praire Road
Osseo, Wisconsin 54758
Telephone [phone]
Representative Counsel for "Group B" Plaintiffs
s/s Steven D. Sandven_____________
Steven D.. Sandven6
Steven D.. Sandven Law Offices
300 N.. Dakota Avenue
Suite 516
Sioux Falls, South Dakota 57104
Representative for Lower Sioux Community
6 Application for admission to the bar1 of the U.S. Court of Federal Claims is forthcoming.

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RONALD I. TENPAS
Acting Assistant Attorney General
Environment and Natural Resources Division
LAURA MAROLDY
Natural Resources Section
Environment and Natural Resources Division
United
U..S Department of Justice
601 D Street, N.W.
Washington, DC 20004
Counsel for United States


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JOINT STATUS REPORT
a Does the Court have jurisdiction over the action?
Wolfchild Plaintiffs: Yes
Intervenots: Intervenors state that the Court has jurisdiction for this suit and that the Court has jurisdiction to entertain this suit
Defendant.
No Defendant's position is that the Court does not have jurisdiction over the action, because there is no money-mandating duty, as required by the Tucker Act; and because plaintiffs' claims are barred by the statute of limitations and the 1980 Act.
Lower Sioux Indian Community.
The Community agrees with the comments of Wolfchild Plaintiffs' counsel


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b,. Should the case be consolidated with any other case? Wolfchild Plaintiffs: No
To consolidate this case with other cases with unrelated claims would prejudice the original plaintiffs and impair the manageability of this suit and final disposition within a reasonable time.. See, Wolfchild v U.S., — Fed..CL —, 2007 WL 1227691 at *11 (FedCl. Apr 27, 2007) (No 03-2684L, 01-568L) ^Wolfchild IV") The Court has akeady consolidated the Cermak v. United States, No.. 01-568L case with Wolfchild v, United States, No, 03-2684L. Wolfchild v. US,., 12 Fed Cl. 511, 527 (Fed.Cl. Aug22, 2006) (No., 03-2684L, 01-568L) ^WolfchildIIP}
Inteivenois: Not at this time Defendant No
This case is akeady consolidated with Cermak v, Umted States, Case No 01-568L.. Defendant is not aware of any other case with -which the Wolfchildcase should be consolidated.
Lowet Sioux Indian Community.
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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c. Should ttial of liability and damages be bifurcated? Wolf child Plaintiffs: No
A bifurcated trial for liability and damages is unnecessary. First, legal issues regarding liability have and can further be determined through summary judgment practice Wolfchildv United States, 62 Fed.. Cl. 521, 555 (2004) ('Wot/childI'*) (the United States breached the trust engendered in the 1888, 1889, and 1890 Appropriation Acts through actions taken in 1980 and thereafter).
Second, the Wolfchild Plaintiffs' proposed initial disclosures should narrow any factual disputes regarding either genealogy or damage claims and damage computations if all parties cooperate..
Third, after the initial disclosures and limited discovery practice, as contemplated in the proposed scheduling order, any remaining damage calculations for individual claimants ( Tables 5-7) left after the United States' financial trust accounting (Tables 1-4) can be completed at the same trial that resolves any remaining genealogical issues left unresolved by summary judgment motions,. The Wolfchild Plaintiffs have prepared a proposed scheduling order, agreed to by a majority of intervenor counsel on June 20, 2007, with trial ready date of September 30, 2008 To facilitate management of the case, the proposed scheduling order has an Appendix B for parties' initial discovery disclosures, an Appendix C for the U.S. general ttust accounting and Tables 1 -4 and Tables 5-7 for determination of damages for individual claimants. Appendix D is the initial disclosures for the Lower Sioux Community
Inteivenots:
Trial should be ttifurcated: (1) legal issues; (2) genealogical descendancy; and (.3) damages
Defendant
Yes, trial of liability and damages should be bifurcated, if the case proceeds to trial. Bifurcation and mini-trials concerning particular groups of plaintiffs/plaintiff-intervenors and/or particular theories of descendancy may be called for in this case because of the number of plaintiffs, the difficulty of some of the historical and factual questions, and because different groups of plaintiffs have different theories of descendancy
Similarly, the damages phase of trial, if any, will likely involve different calculations and theories relating to different individuals, not just the various


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intervenor and plaintiff groups identified so far in the party-identification phase of this case.,
Lower Sioux Indian Community.
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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d. Should further proceedings in this case be deferred pending
consideration of another case before this Court or any other tribunal?
Wolf child Plain tiffs: No Intetvenois: No Defendant.
The United States urges that all further proceedings in this Court be stayed pending an interlocutory appeal of the Court's October 2004, December 2005, and August 2006 Orders, because, as set forth in Defendant's motion seeking certification of'those Orders for interlocutory appeal (Dkt No. 510), an appellate decision at this stage of the litigation, regarding certain controlling questions contained in those Orders, offers the strong possibility of materially advancing the ultimate termination of the litigation..
Several complex factual and legal issues remain to be decided in this case before a final judgment may be reached in the trial court.. They include whether casino proceeds are managed by the BIA as trust fuads under statutory directives, and whether the proceeds fall within the ambit of the limited waiver of the statute of limitations set forth in the Appropriations Riders (referred to by this Court as "TTAS"); determining the scope of the trust; identifying and determining the nature and extent of the United States' alleged breaches of fiduciary duty; determining what criteria determine who is a "lineal descendant" and which of the plaintiffs and intetvenors meet those criteria; determining whether an accounting in aid of judgment is necessary, and related issues; and sorting out who might be entitled to damages (if any), and if so, the amount of damages.. The latter determination would entail, among others, proceedings to determine which of the plaintiffs received benefits as a member of one of the Communities and how that affects their claims of alleged injury arising from the alleged breach of duty See, eg., Wolfchild v. United States, 62 Fed, Cl 521, at 551 (2004) Likewise, the consequences flowing from the alleged agency relationship between the United States and the three Communities, must be sorted out. That undertaking promises to be especially complex, because under the Court's interpretation of the 1980 Act, the Communities serve as trustees for themselves, yet also have fiduciary duties to the "lineal descendants" and to the United States, as their alleged principal. It would serve the interest of judicial economy to stay the proceedings in this court pending outcome of the interlocutory appeal, as the appeal may eliminate the need for proceedings in this Court to resolve some or all of those issues before final judgment.
Lowei Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel


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e. Will a remand or suspension be sought? Wolfchild Plaintiffs: No Inteivenors: No Defendant
At present, the United States does not expect to seek a remand. As it has noted elsewhere in its portions of this joint report (and in its motion docketed as paper no.. 510 in this litigation), the United States seeks a stay of all proceedings in the ttial court pending the outcome of an interlocutory appeal, for reasons of judicial economy
Lowei Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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£. Will additional parties be joined? Wolfchild Plaintiffs: No
The Court's April 27, 2007 Order apparently bars the joining of additional plaintiffs.. Wolfchild IV zt *11 ("To avoid prejudice, any future requests by individuals to participate in the Wolfchild case as claimants will be deemed to be untimely and to impair the manageability of this suit ") Moreover, the Court observed that "the Objecting Communities might ^j a role in any future accounting, they might seek indemnification from the government, and they mghtbe subject to a claim by the government for indemnification " Wolfchild'IV'at *12. But, the United States has not to-date brought a third-party claim against the Communities..
Inteivenors:
Pursuant to the Court's April 27, 2007 Order, it appears that adding additional Plaintiffs, other than the exception of newborn children of parties alieady in the lawsuit, will not be allowed. It fmther appears from the Court's April 27, 2007 Older, Defendant United States would have the option to add the Shakopee and Prairie Island communities as parties from whom it seeks indemnity.,
» •
Defendant:
The United States does not presently intend to join any additional parties. Lowei Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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g. Do the parties intend to file a motion pursuant to RCFC 12(b). 12(e). or 56?
Wolfchild Plaintiffs: Yes, under RCFC 56
Accordingly, the Wolfchild Plaintiffs propose in thek scheduling order (agreed to by a majority of intervening counsel on June 20, 2007) a period for discovery and a February 29, 2008 deadline for filing further RCFC 56 summary judgment motions
Inteivenors:
At. this time the parties do not believe they would be filing a motion pursuant to RCFC 12(b) or 12(e).. The parties do contemplate the filing of motions for summary judgment under RCFC 56..
Defendant
Consistent with the Court's view that "delineation of the trust" is one of several "merits" issues to be determined in this lawsuit, if the case does not go to the Federal Circuit on interlocutory appeal but instead proceeds in the trial court, Defendant anticipates filing a dispositive motion relating to whether gaming revenues and, perhaps, revenues of other tribal businesses constitute "trust funds" or "trust proceeds,"
Defendant proposes to file that motion either after the resolution of any interlocutory appeal ot after the requests to this Court and the Federal Circuit for interlocutory review are decided.. If either this Court or the Federal Circuit denies the request for interlocutory review, Defendant would anticipate filing its initial brief in support of the "gaming proceeds" motion 60 days after the denial is issued. Plaintiffs' responsive brief would be due 30 days after service of Defendant's brief; Defendant's reply would be filed 15 days after service of Plaintiffs' brief, (Depending on the number of briefs filed by Plaintiffs (including intervenors), this proposed schedule might need to be adjusted,)
With respect to dispositive motions, Defendant notes that during the telephonic meet-and-confer amongst counsel on July 12, 2007, Plaintiffs' counsel stated that Plaintiffs do not intend to pursue thek motion for partial summary judgment claiming breaches of trust relating to the United States' approval of the base roll and constitution for the Shakopee Mdewakanton Sioux Indian Community
Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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h.. What are the relevant issues?
The Court's Order of April 27, 2007 suggested five meiitorious issues to move this case to a final disposition:
(1) Delineating the Trust created by the 1888. 1889. and 189Q Appropriation Acts.
Wolf child Plaintiffs: Agree
The 1886 Lands and U.S Treasury account nos. 147436 and 147936 aie the starting minimum elements of the trust corpus.. The United States as trustee and the Communities as its agent continued to further enhance the trust for the benefit of the trust beneficiaries who have vested rights to that trust corpus.. The United States, with the assistance of the Communities, distributed among others some of the trust property without distributing equal shares to those with vested lights to the entire trust..
Determining the extent of the trust is best resolved through a trust accounting and summary judgment practice. The proposed scheduling older including the initial disclosure requirements of Appendix B for all parties, Appendix C for the United States' general accounting, and Appendix D for the Lower Sioux Community is intended to resolve or if necessaiy, identify the factual issues, for summary judgment consideration. Obviously, if any facts remain in dispute, trial will ultimately dispose of the issue(s).
Inteivetiors: 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,.
Defendant:
In Defendant's view, the factual and legal issues include those referred to in its portion of section (d), above.. Additional legal and factual issues may emerge as the case proceeds The answer to this question also will be informed by the outcome of the request for interlocutory review, and of the appeal itself'
Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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(2) Accounting for the trust corpus by the Department of the Interior and its agents after enactment of the 1980 Act.
Wolf child Plaintiffs: Agree
Since the trust beneficiaries have vested rights to the trust, distributions made without including those with vested rights to the trust require an accounting from the trustee and any agent of the trustee as the Court has acknowledged. Wolfchild III at 531 ("the current plaintiffs have requested an accounting incidental to the calculation of a damages award for the government's breach of the trust agreement between the United States and the loyal Mdewakanton, As the government's agent, the Community would necessarily be involved in such an accounting."),. See, generally, Klamalh &ModocTribei & Yahoo \kin Band oj Snake Indians v. U, S, 174 Ct.Cl. 483, 1966 WL 8850 (CtCl. Feb 18, 1966) (predecessor Court has incidental power to order trust accounting in Native American trust mismanagement case).
The Wolfchild Plaintiff's have drafted for the Court within the proposed scheduling order directions to the United States to produce such an accounting and forms for the United States to use in producing such an accounting — Tables 1—4. Additionally, for demonstrative purposes, the Wolfchild Plaintiffs have prepared and attached as Appendix D (tables 5-7) the format for calculating damages for individual claimants..
Intetvenots:
An all inclusive accounting, including but not limited to, casino 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 accepted 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 February 29, 2008,,
Defendant
In Defendant's view, the factual and legal issues include those referred to in its portion of section (d), above. Additional legal and factual issues may emerge as the case proceeds.. The answer to this question also will be informed by the outcome of the request for interlocutory review, and of the appeal itself.
.Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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(.3) Addressing the current legal status of the 1886 lands.
Wolfchild Plaintiffs: Agree
The 1886 Lands are U S.. title land.. The 1886 lands are held in trust for the lineal descendants of the ttust beneficiaries under the 1888, 1889 and 1890 Appropriation Acts who have vested rights. The 1886 Lands and U.S.. Treasury-account nos 147436 and 147936 — which contain revenue and interest, respectively, from the 1886 Lands - are at a minimum currently part of the trust corpus.. Any further enhancements of the ttust were and are for the benefit of the trust beneficiaries The United States, through the Communities as agents, continues to breach its fiduciary duties to the lineal descendants with vested rights to the trust by failing to provide an equal distribution of trust property, for instance, by failing to provide equal per capita payments to all lineal descendants. Distributions in the Communities of trust interests are not shared at all or shared equally with those with vested rights although distributions are made to those who are not lineal descendants — those without vested rights to the trust,.
Inteivenots:
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; (it) 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.
Defendant:
In Defendant's view, the factual and legal issues include those referred to in its portion of section (d), above Additional legal and factual issues may emerge as the case proceeds.. The answer to this question also will be informed by the outcome of the request for interlocutory review, and of the appeal itself
Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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(4) Explicating and applying the criteria for determining whether a Plaintiff or Intetvening Plaintiff qualifies as a lineal descendant of the Loyal Mdewakanton and thus a beneficiary of the trust.
Wolf child Plaintiffs: Agree
We believe the best method for resolving additional legal issues regarding explication and application of criteria for trust beneficiary status is summary judgment practice through the initial factual disclosure recommendations with the accompanying proposed schedule.. Any factual disputes can be resolved at trial, if necessary
Inteivenots: The standard of proof should be by relevant genealogical
evidence unless rebutted by conclusive evidence to die contrary..7 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 certificatesl (viii) oral tradition; (ix)
census roles; (x) allotment roles/records; (xi) obituaries/newspapers; (xii) family trees;
(xiii) BIA family trees; (xiv) land records; (xv) historical accounts; (xvi) testimony of
qualified experts; (xvii) relevant testimony of Plaintiff's. . .
Defendant:
In Defendant's view, the factual and legal issues include those referred to in its portion of section (d), above Additional legal and factual issues may emerge as the case proceeds.. The answer to this question also will be informed by the outcome of the request for interlocutory review, and of the appeal itself,
Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.
7 The question of how documents need to be authenticated, e g , whether' certified copies will be requited


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(5) Determining the monetaty relief to which individual claimants might be entitled
Wolfchild Plaintiffs: Agree
Determining the monetary relief to which individual claimants might be entitled can be resolved at a single trial. The Wolfchild Plaintiffs have created Appendix C to their proposed Scheduling Order which addresses the determination of the monetary relief to which individual claimants are entitled.. After the United States has completed Tables 1 to 4, monetary relief for each individual claimant can be determined at trial by use of Tables 5 through 7. There is no need for a bifurcated trial for damages
Ititetvenois:
The predicate to the determination of the monetary relief is Plaintiffs' and Intetvenors' receipt of the all inclusive accounting referred to in item h(2) above.. Intetvenors also believe that the following issues 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, 1863, be considered an EnablingAct for purposes of the 1888, 1889 and 1890 Appropiiations Acts?
3. Would there even exist a beneficiary group in this case "but for" the
language contained in the substantive provisions of the 1863 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 of the
beneficiary class? 5- Should each and every individual who is a member of the beneficiary
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 be
discounted based upon lack of loyalty? 1, 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?
10.. What role do the Scout lists play in determining members of the potential beneficiary class?


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11 Should the McLaughlin Censuses of 1899 and 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 occur1 regarding requests for production of documents between plaintiffs attorneys?
a. Records currently in possession of Wicanpi Research, should be made available to all intervening plaintiffs
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' 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.. birth 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?
19 How should we treat the fact that many individuals received allotments of lands on other reservations, including some on the 1886 and 1889 censuses?
20 Should we accept or reject the conclusion contained in a letter dated,
1971, by a Department of Interior, Field Solicitor that the names of
individuals appearing on the 1886 and 1889 censuses "are an adequate
proxy for friendliness. "? a. What about the feelings of Agent Henton regarding certain individuals
who appear on the 1886 and 1889 censuses as "having blood on their
hands ..."? b.. What about the feelings of the local whites about individuals listed on
the 1886 and 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 appear on the 1886 and
1889 censuses? 21. Should the term "lineal descendants" be utilized of "heirs"? See,
February 16, 1863 Act, 22 Whether the prospective issue of aboriginal claim or aboriginal rights
of the individuals and potentially bands be considered.


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[mdenney]

23. Whether the Bureau of Indian Affairs should begin providing (a)
genealogical materials; and (b) family trees which had been provided to interested parties prior to this case.
Defendant:
In Defendant's view, the factual and legal issues include those referred to in its portion of section (d), above.. Additional legal and factual issues may emerge as the case proceeds The answer to this question also will be informed by the outcome of the request for interlocutory review, and of the appeal itself
Lowet Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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i. Can the case be settled?
Wolfchild Plaintiffs: No But after trial, the case could be settled
The case can not be settled before trial First, it is necessary to determine and identify the actual trust beneficiaries that can be resolved thiough summary judgment practice, with limited remaining factual issues to be resolved at trial Second, the calculation of damages for1 each individual claimant would be completed (Tables 4-7) at the same trial. After the trial, yes, the case could be settled.
Intetvenois: Yes, but not until Plaintiffs/Intervenors receipt of all inclusive accounting referred to in h(2) above
Defendant:
The United States believes there is a strong likelihood that interlocutory appeal will sharpen the focus of the case so that alternative dispute resolution may become a realistic possibility after such an appeal is resolved by the appellate court.
The United States does not believe that settlement after trial, as suggested by Plaintiffs in their portion of this joint report, is a realistic scenario Especially as one of the rationales for any settlement is to avoid Litigation costs, the incentive for a negotiated resolution will have been eliminated after the parties have spent the time, money, and resources to prepare for and go through trial.
Likewise, if the case proceeds to a point at which the United States must perform an accounting in aid of judgment, settlement may not be a realistic possibility.,
Lowet Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel


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j. Do the parries anticipate proceeding to trial and does either party, or
do the patties jointly, request expedited trial scheduling?
WolfchM Plaintiffs: Yes
The Wolfchild plaintiffs do anticipate proceeding to trial on genealogical issues and to complete the determination of damages for individual claimants at the same trial (Tables 5 through 7) The Wolfchild Plaintiffs request that the trial be conducted in one session at the federal court facilities in Minneapolis.
The Wolfchild Plaintiffs do note request an expedited trial scheduling but do not that the proposed schedule does result in a September 2008 trial date.
Inteivenois: If the case is not settled Intervenors anticipate proceeding to trial. They do not request expedited trial scheduling.
Defendant:
Defendant anticipates that interlocutory appeal may eliminate any need for a trial. Furthermore, because of'the complexity of'discovery issues and descendancy-relatecl issues in this case, the United States does not seek an expedited trial schedule..
If the case does proceed to trial, Defendant notes that a group of mini-trials, rather than one trial session (as Plaintiffs suggest), would probably be the best way to structure the trial of this matter. As noted above, trial of liability and damages should be bifurcated. Defendant does not believe the legal or factual issues necessary to prepare for trial can be resolved for a September 2008 trial date, as Plaintiffs propose. Defendant suggests that, if interlocutory review is not granted, a status conference be set to schedule further proceedings in the case.
Lower Sioux Indian Community:
The Community agrees with the comments of Wolf child Plaintiffs' counsel.


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k. Are there any special issues regarding electronic case management needs?
Wolfchild Plaintiffs: Yes
Because of the critical nature of the proposals within the Status Report and the proposed scheduling order, Wolfchild Plaintiffs request an in-person hearing at the Court in Washington, D.C, with an option to attend through telephonic-communication
In addition, mere is one special issue regarding electronic case management needs. Does the Court want hard copies of trial exhibits ot any of the larger document productions in support of anticipated summary judgment practice?
Intetvenofs:
Whether filing prior to this case going electronic case management can be made available electronically
Defendant:
The United States has not yet been served with all parties' CDs containing the information the Court ditected intetvenors to provide, in the format specified in this Court's April 27, 2007, Order (Dkt. 453). Given the need for all parties to have the same party-related information, in the same format, that matter needs to be resolved.
Specifically, the United States was not served with CDs by the groups represented by Philip Morgan, Esquire, and Scott Johnson, Esquire, respectively Defendant hopes to obtain those CDs in the near future.
Some of the CDs served on the United States appear to be in a format different from the format the Court requested; this has the potential to cause problems for all parties as the case proceeds
-Lower Sioux Indian Community:
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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I. Is there any other information of which the Court should be aware at
this time?
Wolfchild Plaintiffs: Yes
The Wolfchild Plaintiffs have attached a proposed Scheduling Order as Appendix A and Preparation Timeline for parties' initial discovery disclosures.. In addition, to facilitate the factual foundation of Wolfchild Plaintiffs' and Intervenor Plaintiffs' claims, Wolfchild counsel has drafted and circulated to all counsel proposed disclosures in the format of admissions, interrogatories, and document requests..
The disclosures are meant to move this matter to a final disposition in a reasonable amount of time despite the complexity of the issues and the amount of factual data, and more importantly organized to best assist the Court in fact finding:
• Proposed Scheduling Order - Attachment 1
• Attachment 2 - Genealogical Numbering System
• Attachment 3 — Excel Spreadsheet
• Appendix A — General Instructions for initial disclosures
• Appendix B - Disclosures for all plaintiffs and intetvenors,
expect the Lower Sioux Community
• Appendix C — Disclosures for the United States
• Appendix D — Disclosures for the Lower Sioux Community
• Tables 1-4 and 5-7 ;
Inteivenois:
At this time, the Inteivenors are not aware of any other information In accordance with RCFC Appendix G, paragraph 4, the intervenors submit the attached discovery plan..
Defendant;
A., The United States perceives some open issues regarding who is a party in the case, and who represents whom, and believes it is in all parties' interest to resolve those issues fully before proceeding. It is possible that some of these issues may be resolved without the Court's participation.
1 The CD provided by the Enyard group pursuant to the Court's April 27, 2007, Order docketed as paper no 453 appears to contain the names of 295 parties, whereas the Court's count, set forth in its April 27, 2007, Order (and Defendant's count, based on the Enyard Group's pleadings), was 259, Based on recent


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communications with Sam Killinger, Esquire, counsel for the Enyard Group, Defendant understands that Mr Killinger is looking into this matter.
2. With respect to the disclosure of John Does, it is not clear that any parties other than Plaintiffs represented by Erick Kaardal, Esquire, the Walker John Does represented by Elizabeth Walker, Esquire, and the Renaud Does (represented by James Blair, Esquire and Barry Hogan, Esquire) disclosed their John Does by May 25, 2007, as this Court directed; and therefore some John Does may be subject to dismissal
3 Counsel of record for the Lafferty and Lowe groups, Wood Foster, Esquire, stated on the CD spreadsheet sent to Defendant's counsel in May 2007, that there are additional persons who would be the subject of a motion to intervene No motions to intervene have been filed and the status of this matter, and whether additional motions will be filed, is unclear.
4, The CD submitted by Erick Kaardal, Esquire, to Defendant's counsel contains the names of 7,550 Plaintiffs; whereas the Court's count, as set forth in its April 27, 2007, Order, is 7,588.
5 There appear to be unresolved questions regarding who represents some of
the persons Fran Felix,pro re, attempted to represent ("extended family members.")
As of the date of filing of the joint status report, there is an open motion on this issue
(Dkt. No. 506),. ;
6 It appears that the Renaud John Does, represented by James Blair, Esquire, and Barry Hogan, Esquire, submitted 24 sealed affidavits with their December 28, 2006 filing (Dkt.. Nos.. 381-386), A box containing only 15 affidavits from 15 family groups was served on the United States on June 21, 2007. It is not clear whether or not this is all or part of the material submitted to the Court in December..
7 In a filing by the Vassar Group (No. 451), it represented that all of its members were added to Plaintiffs' Fourth Amended Complaint filed by Mr. Kaardal; however, it is not clear whether that is the case.
8.. In response to the information set forth in plaintiffs' portion of the report entitled, "Genealogical Document Dispute," Defendant's counsel was unaware that these documents were available, until receiving Plaintiffs' portion of the report, and on July 20, 2007, requested a copy of those documents from Plaintiffs' counsel "
9.. It appears that the status of intervenor Lower Sioux Indian Community's legal representation in this matter is unclear, and the person who apparently provided input for the report on Lower Sioux's behalf has not yet entered an appearance in the


26

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case for the Lower Sioux as of the time the report was being finalized for filing. In addition, Defendant did not see or receive the input attributed to the Lower Sioux until July 20, Accordingly, the United States is not in a position to comment on that material in this report.
B As a general matter, Defendant wishes to make the Court and the parties aware that it is handling about 102 Tribal trust accounting and trust mismanagement cases that have been brought in United States District Courts and the Court of Federal Claims.. There are about 56 cases in this Court; nine in various United States District Courts in various United States District Courts in Oklahoma; and 37 cases in the United States District Court for the District of Columbia, Although the Wolfchild case is not a "Tribal trust" case and the United States denies that it has any trust duties to the plaintiffs in this case, the heavy docket of these complex cases bears on how quickly discovery and other expensive and time-consuming aspects of this litigation can proceed.
Lower Sioux Indian Community.
The Community agrees with the comments of Wolfchild Plaintiffs' counsel.


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m. Defendant United States position regarding a (sic) initial disclosures and a "Proposed Discovery Plan7'
Counsel for the United States received a voluminous draft report from plaintiffs, and a partial set of the attachments, on the afternoon of July 11.. Counsel of record and agency counsel have not had time to review and consider much less respond to, all of those attachments and their contents, before Defendant's portion of this report needed to be finalized. Its position regarding initial disclosures and a discovery plan generally, is set forth below..
As Defendant stated during the July 12, 2007, meet-and-confer amongst counsel, given the request for certification for interlocutory appeal, initial disclosures pursuant to RCFC 26(a) and discovery, generally, should be deferred pending the outcome of any interlocutory appeal. Defendant's view is that initial disclosures are not appropriate at this time, given the circumstances of this case, and therefore objects to proceeding with initial disclosures at this stage. As Defendant explained in its motion for certification for interlocutory appeal, one of the compelling reasons for interlocutory review of certain Orders issued in this case is that the potential savings of time and expense for all patties are very significant, compared to the cost of going forward with initial disclosures, discovery, and other proceedings now, and proceeding to the appeal phase on key issues only after final judgment.
Having noted its core position regarding deferring initial disclosures and discovery, the United States responds here generally to some of the issues raised by Plaintiffs' portion of the joint preliminary status report.
Defendant notes that Plaintiffs' draft proposals for "initial disclosures" go far beyond what RCFC 26 requires for initial disclosures. Defendant does not agree that Plaintiffs' proposed forms for "Initial Disclosures" should govern the parties' respective disclosures in this action.
With respect to an "accounting," the United States notes that, consistent with the narrow waiver of sovereign immunity for actions brought in this Court, the only type of accounting that this Court can require is an accounting collateral to and in aid of judgment, pursuant to 28 U.S. C. § 1491. E-..&, Klamath andModoc Tribe', v United States, 174 Ct Cl 483, 1966 WL 8850 (1966) (It is established law that the Court of Federal Claims does not have the requisite equitable jurisdiction necessary to order an accounting of Indian trust funds before a plaintiff has established government liability.,) Such an accounting cannot be required until after a finding of liability on a particular claims within the jurisdiction of this Court, to determine the amount of damages, if any. The particulars of any such accounting would necessarily be limited and determined by the particular finding of liability In this case, the nature and extent of any alleged breach of fiduciary duty, i.e., the nature and extent of any


28

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liability, has not yet been determined. Wolfchild v, United States, 62 Fed. CL 521, 551 (2004),
Defendant notes particularly that the question of the scope of the alleged tmst, including what types of assets lie within that "trust," has yet to be determined in this litigation,. It would be premature under any circumstances to conduct an "accounting" before those questions are resolved,. Moreover, Plaintiffs, in their portion of the joint report, describe an "accounting" that encompasses gaming proceeds, despite the fact that there has been no determination that gaming proceeds (or any other revenues of tribal businesses) form a part of the alleged trust corpus, much less that there has been any breach of trust with respect to gaming proceeds.. Plaintiffs' request for an "accounting" encompassing gaming revenues (or any "accounting" as part of RCFC 26 "initial disclosures") is ill-founded for both of these reasons.
Likewise, the United States does not control any of the three Communities, all of which are federally-recognized Communities with independent governments. Gaming proceeds are not collected by the United States, held in trust by the United States, or distributed by the United States. The United States does not have the information on which Plaintiffs seem to base their proposed "accounting forms/'such as the amounts and recipients of the per capita distributions by the Communities of their respective gaming revenues.
Moreover, as a practical matter, the United States notes that it is the defendant in about 102 lawsuits alleging breaches of trust owed to various Indian Tribes In many of those cases, the Tribe or Community concerned seeks a form of accounting, either as equitable relief (in an appropriate forum) or in connection with a negotiated resolution of its claims Given the work already undertaken to support either agreecl-upon accountings in a settlement context, or litigation relating to claims for accountings as equitable relief, it is not realistic to expect any accounting relating to this litigation could be generated in a period of a few months, as Plaintiffs' portion of the joint status report contemplates. But most importantly, as Defendant has noted elsewhere in this report, Plaintiffs' proposals for an accounting are premature and the type of "accounting" Plaintiffs appear to seek is not one that this Court may order.
Defendant proposes that the matter of a specific discovery plan and schedule be deferred until after the interlocutory appeal is decided by the Federal Circuit or, if interlocutory review is not granted, until after that decision is made by the court in question
When discovery does commence (at an appropriate time), Defendant proposes that a period for written discovery take place first Given the number of plaintiffs, the time periods covered by the case, and the number of locations in which documents pertinent to genealogy and severance of tribal relations, may be located,


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an extended period of time for fact discovery may be necessary.. After fact discovery concludes, a period and plan for depositions of fact witnesses would then be scheduled.. Expert discovery would then follow that period of fact discovery..
Defendant reserves its objections to the specific proposed discovery set forth in Plaintiffs' portion of the status report (which Defendant received, in part, on July 11), because to respond specifically to each of those proposals in this joint report is not necessary at this time, and would consume too much time and too many pages..


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[mdenney]

ATTACHMENT 1
WOLFCHILD PLAINTIFFS'
PROPOSED SCHEDULING ORDER
WITH APPENDICES
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al,
Case No 03-2684L & No.. 01-5687L Judge Charles F Lettow
Plaintiffs,
vs
UNITED STATES,
Defendant.
SCHEDULING ORDER
The Court issued an order on April 27, 2007 directing all parties to confer regarding a general plan and schedule for further proceedings in this case including an identification of the substantive issues for adjudication After reviewing the joint status report of the parties and after further discussion with counsel during a Court status conference on their proposals, the Court
HEREBY ORDERS:
A, General Discovery:
1 Under Federal Claims Court Rule 26 governing discovery, each party plaintiff and party plainuff-intervenor and defendant must respond to the initial disclosures set forth in the attached APPENDICES A - D and Attachments 2 and 3..


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2. Pursuant to the trustee's obligation to provide a general accounting, the defendant must tespond to the initial disclosures for general accounting as set forth in the attached APPENDIX C, and Tables 1 through 7 respectively
3 Initial discovery shall start on August 7, 2007
4. The deadline for answering the initial disclosures shall be October 30, 2007..
5 Protective orders and agreements between all parties regarding the initial disclosures, including information regarding all individuals identified as "Does" and any proprietary information regarding the US trust accounting must be entered into before October 30, 2007. No motion regarding protective orders may be filed prior to a conference between representative counsel to see if an agreement can be reached
6. No depositions shall be noticed nor otherwise demanded during this period until after October 30, 2007.
7. No deposition shall be noticed or otherwise demanded on a plaintiff or intervenor plaintiff unless a motion is made and the Court approves the deposition.. This ban does not apply to depositions of defendant and its officials, employees, agents, and assigns; third-parties and identified experts disclosed as of November 15, 2007 which may proceed without a court order..
8.. Each party must disclose the identity of their primary expert(s) in complete accordance with the Federal Claims Court Rule 26(a)(2)(A), (B), and (C).. The disclosure must be made on or before November 15, 2007 Rebuttal experts must be identified in accordance with Federal Claims Court Rules before December 15,2007.
9 The close of discovery, including expert discovery, shall be February 29, 2008..
B. Damages Discovery:
1, The defendant as part of a general financial trust accounting must initially disclose the following regarding plaintiffs alleged trust corpus:


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(i.) Annual accounting since March 21, 1975 of U.S. treasury account nos 147436, 147936 including a sum of these accounts provided on an annual basis. Table 1 must be used for these initial disclosures
(ii.) A complete list of each pel-capita payment and/or benefit (e.g., life insurance, health insurance, health benefits, etc) made by the Shakopee Mdewakanton Sioux Community to its members after December 19, 1980 Include the following for each (use Table 2 for these initial disclosures):
(a). Date of each per-capita payment/benefit to members;
(b) Gross amount of payment/benefit to members;
(c). List of individual members receiving the per-capita payment/benefit, and the amount received..
(iii.) A complete list of each per-capita payment and/or benefit (eg, life insurance, health insurance, health benefits, etc.) made by the Prairie Island Indian Community to its members after December 19, 1980.. Include the following for each (use Table 3 for these initial disclosures):
(a). Date of each per-capita payment/benefit to members;
(b).. Gross amount of payment/benefit to members;
(c). List of individual members receiving the per-capita payment/benefit, and the amount received
(iv.) A complete list of each per-capita payment and/or benefit (eg, life insurance, health insurance, health benefits, etc) made by the Lower Sioux Indian Community to its members after December 19, 1980 Include the following for each (use Table 4 for these initial disclosures):
(a) Date of each per-capita payment/benefit to members;


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(b) Gross amount of payment/benefit to members;
(c).. List of individual members receiving the per-capita payment/benefit, and the amount received
2. The initial disclosures associated with the general accounting must be made on or before October 15, 2007..
3. Documents substantiating the defendant's general accounting must be made available to all plaintiffs on October 15, 2007
4 Documents regarding any revenues or income produced and/or received by Shakopee Mdewakanton Sioux Community, Prairie Island Indian Community and/or Lower Sioux Indian Community, including those documents produced by these Communities to the Department of the Interior, Bureau of Indian Affairs and/or National Indian Gaming Commission and/or those produced in response to the Indian Gaming Regulatory Act or regulations adopted thereunder,
5.. The defendant must disclose the identity of the person(s) who prepared the general accounting The disclosure must be made on or before October 15, 2007.
6 The defendant must disclose the identity of any expert used regarding its general accounting in accordance with Rule 269a)(2)(A), (B), and (C) and any other expert before November 15, 2007.. Disclosure of any rebuttal expert must be made on or before December 15, 2007.
7. The close of discovery on damages shall be February 29, 2008, including all depositions of the defendant's identified person(s) or expert(s) used to prepare the damage computation(s)
8.. For illustrative purposes only, Tables 5 to 7 have been included to show how damages might be calculated at trial
C. Dispositive Motions — Legal Issues:
1, The Court in its order of April 27, 2007 identified several issues for adjudication. During summary judgment practice, the Court expects the following issues to be briefed:


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a. Has the United States breached its fiduciary duties to the lineal descendents by failing to provide a legally adequate substitute since 1980 for the federal land assignments made prior to 1980?
b. Prior to 1980, did the defendant United States and its agents Lower Sioux Indian, the Prairie Island Indian, and the Shakopee Mdewakanton Sioux Communities breach their common fiduciary duties by failing to distribute the community revenues and other revenues set aside in a BIA trust accounts nos 147436 and 147936 for lineal descendant non-members of the Lower Sioux Indian, the Prairie Island Indian, and the Shakopee Mdewakanton Sioux Communities?
c. Since 1980, did the defendant United States and its agents Lower Sioux Indian, the Prakie Island Indian, and the Shakopee Mdewakanton Sioux breach their common fiduciary duties by failing to set aside and distribute the community revenues that lineal descendant non-members of the Lower Sioux Indian, the Prakie Island Indian, and the Shakopee Mdewakanton Sioux Communities were entitled to?
d.. Ate lineal descendants who are not members of the Lower Sioux Indian, the Prairie Island Indian, or the Shakopee Mdewakanton Sioux Communities entitled to an equal per-capita payment as lineal descendents who are community members?
e, Will the United States be required to account for all per-capita disbursements to community members and community non-members since 1980 as well as those trust funds set aside in BIA trust accounts nos, 147436 and 147936 prior to 1980 for lineal descendant non-members of the Lower Sioux Indian, the Prakie Island Indian, and the Shakopee Mdewakanton Sioux Communities prior to 1980?
f, Are the current 1886 lands part of the trust corpus?


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D. Dispositive Motions — Summary Judgment Filings:
1. The movants shall file their respective summary judgment memoranda on or before December 20, 2007,
2. All responsive and reply briefs shall be filed within the time periods delineated under the rules of the United States Court of Federal Claims.
3. The hearing on the summary judgment motions shall be heard on February 28 and 29, 2008,.
4 After this Court's order regarding the February 2008 summary judgment motions, Wolfchild plaintiffs' counsel and intervenor plaintiffs' counsel if they proceeded on a summary judgment motion on the legal criteria for trust beneficiary status on behalf of less than all of their clients, and if this Court grants their initial motion, counsel may bring another summary judgment motion to qualify all of their clients under the Court-adopted criteria for trust beneficiary status within 60 days of the date of that order,
E Trial:
a., The trial ready date shall be September 30, 2008,
b. Witness lists must be served and filed by August 20, 2008
c. Exhibit lists must be served and filed by August 20, 2008,
d Motions in limine or any other trial motion must be filed by August 20, 2008.
e. Any trial memorandum must be served and filed by September 10, 2008.
£ Testimony by Deposition designations must be served and filed by September 10, 2008..
g Pre-trial conference attended by all counsel of record and Ms Felix shall be held on September 10, 2008.
h. The Court shall file its final order within 90 days of the trial


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5 Post-Trial Proceedings
a Other additional post-trial proceedings, if necessary, will be addressed by further Court order
Dated:
Judge Charles F. Lettow U.S Court of Federal Claims


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Fed CL R 26 Initial Discovety Disclosures Under U.S. Federal Claims Court Order Dated August 7, 2007
APPENDIX A
General Instructions for Initial Disclosures
Spreadsheet format
1 Use the spreadsheet template for responses to the corresponding initial disclosure interrogatories as directed (ATTACHMENT 3, Excel spreadsheet example) The spreadsheet is provided in Excel format for the sake of consistency Each party shall serve all parties and the Court with a copy of the completed spreadsheet on a compact disc.
Suggested Outline to Develop a "Family Tree" and Trammittal oj Information to Spreadsheet
2, Identify the initial ancestor From that point, identify and organize each of the ancestor's children in chronological order by date of birth, in descending order to the present.
3 Transfer the outline information and complete the spreadsheet, General Instructions — Interrogatom i and Documents
4. It is understood that the Court has not made a decision regarding the scope of a "trust beneficiary" or a "lineal descendent" For the purposes of the initial disclosures, it is accepted that the presumptive starting point is the May 20, 1886 Minnesota Mdewakanton census and its 1889 supplement. Thus, the initial disclosures start from that point, including the identity of certain evidentiary source documents to determine descendency, some of which the Court identified in its "Notice" to potential plaintiffs found in the Wolfchildll decision.
[Intervene? Plaintiffs alternative language:
It is understood that the Court has not ruled on the criteria to serve as a basis for who qualifies as a trust beneficiary; nor has the Court determined the burden of proof(l) required for a determination as a trust beneficiary Accordingly, for purposes of initial disclosures: identify the historical governmental document used as a starting point i.e.., 1886 census, 1889 census, Soldier & Scout list, etc. If claim does not originate from a historical document use "other" for the entry.


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Note: (1) It is assented that standaid for the burden of proof is by a "preponderance of evidence]
5 If your presumptive starting point is something other than the May 20, 1886 Mdewakanton census and its 1889 supplement, identify that source document for each individual identified
6. The Interrogatories that are divided into subparts are to be answered separately as to each subpart contained therein, rather than as a single statement or paragraph intended to encompass the response to all parts contained in the Interrogatory,
7. When you believe that a complete answer to a particular Interrogatory or part of an Interrogatory is not possible, answer such Interrogatory to the extent possible and furnish a statement explaining the reason for inability to answer further..
8 In the Interrogatories and Document Requests, the singular shall be deemed to encompass the plural, and the plural shall be deemed to encompass the singular
9 In the Interrogatories and Document Requests, the feminine pronouns shall include the masculine pronouns, and the masculine shall include the feminine..
GenealogicalNumbering Proceu :
10.. Unique Identifier — Genealogical Number
A. The meaning of a genealogical number
The genealogical number assigned to each individual is a series of numbers which, when strung together, identify exactly who that person is in relation to (descent from) their ancestor on either the May 20, 1886 and/or 1889 Minnesota Mdewakanton census ("1886 census" or its 1889 supplement ("1889 census"), (See ATTACHMENT 3, Ex 1).
i. The first number is the "family number" that counsel independently assigned to each ancestor on either census from whom the counsel has plaintiffs descending.. For example Mary LaBatte is family number 52.. For this example her ancestor's 1886 census number (found on Ex A) is the same —52.. This may not be the case for others.
Nevertheless, the family number is followed by a decimal point in order to separate that unique number from the numbers that follow it.
ii. Each number following the family number represents a generation The first number represents the children of the ancestor. For example, Mary


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LaBatte's son Phillip, her first born son, is represented by "01". His genealogical number is 52.010000000.
a Phillip's son Solon LaBatte, his third born child, is represented by the number 3.. His genealogical number is 52..01300000.,
b. Scion's second child, Archie, is given the genealogical number 5201320000.
iii Each generation is represented in order. Each number is unique to only one person and it is possible to tell who someone is in relation to the census by their genealogical number Take the genealogical number 46.03130000. You can immediately tell that this number represents the third child of the first child of the third child of Agnes Crooks, an ancestor listed on the 1889 Census
B. 1886/89 Census Identity Number
Each individual found on the 1886 census (Census. A) and the 1889
supplemental census (Census.. B) were given a unique identification number.
When identifying an original ancestor from either census or both by name,
also provide the census numbers for easy reference purposes. If the individual
appears on both censuses then note both numbers, (See ATTACHMENT 3,
Ex.2), :
Special Instiuctions to Intetvenoi Lowei Sioux Community and the Defendant United States
Certain interrogatories request information relating to a listing of individuals who have received or are continuing to receive distributions of money Understanding the sensitivity of the disclosure of an individual's name, the initial disclosure should identify an individual receiving money only as "Doe" with a coiresponding number to indicate the number of people who have or are receiving money.


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ATTACHMENT 2
Genealogical Numbers FT 1

First Generation


Second Generation




Third Geneiation
52!oMoooo


Family Number
Subsequent Generations



1886/1889 ID Number

29 3
1886 Census only


18 89 Census only
B06.5


Found on both 1886 and!889 Census
29.3/E17..3




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Attachment 2 - Supplemental Explanation fot All Parties
Regarding the Wolfchild Plaintiffs genealogical numbering system — which has been completed for all 7,550 clients — as disclosed to this Court and all parties, it is best referred to as a modified d'Aboville Numbering System. The best way to describe our system is to first note what it is not. The number given to each family does not correspond to a number given to each person on the May20,1886 census and its 1889 supplement, numbers we have prescribed to these censuses attached as Census A and Census B.
Our genealogical numbers represent a complete group of related individuals constituting a "family" identified as Wolfchild plaintiffs because we have determined each person to be a lineal descendent of an person on the 1886 or 1889 censuses Generally, each "family" is related to a different person on either the 1886 or 1889 census,. There are minor exceptions to this general rule. Nevertheless, for example, when we first started gathering documentation, the first "family" to provide the necessary and complete ancestry documentation was given the number "1". The next "family" that provided us complete ancestry documentation was given the number "2", etc..
We also used Access as out spreadsheet format because that particular program will not allow the duplication of numbers. Thus, the program acts as a back-up to ensure the integrity of our genealogical numbering system-Whatever system the parties choose is up to that individual party — provided all parties can understand the ancestry relationship to each other and to the ancestor on the source document relied upon (i.e., for Wolfchild Plaintiffs, the 1886 and 1889 censuses)


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Attachment 2 — Alternative Explanation of Intervenot Plaintiffs Genealogical Numbering Process
Unique Identifier—Genealogical Number
There are a variety of genealogical numbering systems.. The system to be used in this case is a descendancy system known as d'Aboville numbers., This system uses numbers separated by peliods to create a unique number for the ancestor and each of his or her descendants Genealogical software programs utilizing this numbering system are available.
d'Aboville basics:
i. Assign a number to each ancestor from whom your clients descend.
Example: Jane Doe (ancestor descending from) is assigned 1 ii. Next, for each child of that ancestor., list the ancestor's number, a period and assign the number that corresponds to that child's birth order Examples: Jane Doe's first-born child is 11
Jane Doe's second-born child is 1,2
iii. The next generation, Jane Doe's grandchildren, would be as follows: Jane Doe's first-born child's first child would be 1.1,1 Jane Doe's second-bom child's first child would be 1.2.1 iv Repeat the process for each descendant The unique identifier will be indicated on the Excel spreadsheet


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Document Disclosure Instructions Wolfchild Plaintiffs Recommendation: Genealogical documentation:
Although the Court has not defined the meaning of a "trust beneficiary" or a "lineal descendent," the initial document disclosures seek to provide a factual delineation of lineage from the present to the described group of people found within the 1888, 1889, and 1890 Appropriation Acts—Act of June 29, 1888, 25 Stat. 217, 228-29; Act of Mar. 2,1889, 25 Stat, 980, 992-93; and Act of Aug. 19, 1890, 26 Stat. 320 — respectively, as the Court has indicated as the presumptive starting point.
All documents must substantiate a connection to an individual named on the May 20, 1886 or its 1889 supplement or both (attached as Censuses A and Ex. B) or to the identified census or other source document you are relying on as your "starting point"
A Special Instructions:
1. Each document must conclusively connect the individual to the preceding generation
2 Any incomplete genealogical document is of itself insufficient, however, it may be submitted to support a person's stature as a direct lineal descendent and that person's genuine birth record ij sufficient waindarj documents are submitted.
3. In other words, any variances from the following document protocol must be accompanied by strong and when necessary, secondary documentation to support any claim that the initial genealogical document is purported to make about an alleged direct lineal descendent.
4. Secondary documentation to clarify any ambiguity of conclusively of a birth record connecting an individual to the preceding generation or to further substantiate the authenticity of identified lineal descendents to ancestors listed on the underlying source document (e.g., for Wolfchild Plaintiffs, the May 20, 1886 or its 1889 supplement) This would include: affidavits of paternity; adoption records, and for generations alive before the turn of the 20th century, probate (including BIA probate records), censuses, or church records and estate trial transcripts (testimony)


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[mdenney]

B. Type i of documents:
1. ~Birth certificate: A complete birth certificate identifies the name of the individual and also includes the name of the father and mother. The bitth certificate for each ancestor is required.
2 Hospital record: Must list the child's name; the biological parent from whom the child is tracing through for his or her claim as a lineal descendent; must list the birth date; the name and location of the hospital, attending physician, and signature of person recording the information
3. Infant Baptismal record.: Must list the individual's name; the full name of the biological parent through whom the person is tracing; the date of birth; date of baptism; the location of baptism; the name of the baptismal official.
4.. Collective church baptismal record: If the baptismal record is form a collective, historical church record, the record must include the signature of a church official verifying its accuracy and authenticity; the name of the church; and the volume number and page number of the record book where the baptismal information is recorded
5. Entry -in family Bible: If an entry in a family Bible is used, its entry should have been made contemporaneous with the bitth, list the child's name; the biological parent from whom the child is tracing through for his or her claim as a lineal descendent; and must list the birth date Verify authenticity and obtain color photographs of bible entries.
6 DNA test: Test must be sufficient as admissible under Federal Rules of Evidence to ensure accuracy of determination of paternity.
C Production: Each individual identified as a plaintiff shall have a copy of the person's documents proving lineal descedency from the present to May 20, 1886 or its 1889 supplement or both, in descending chronological order from the present to the past,
D Other documents responsive to Documents Requests or Interrogatories: The meaning of "document" not otherwise within the categories or context of the types described in "B" shall include a meaning in the broadest possible sense to support and substantiate your' response or answer to an interrogatory, admission, or document request disclosure..


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Intervenor. Plaintiffs Recommendation — Document Disclosure Instructions
Genealogical Documentation:
Although the Court has not determined the criteria for establishing trust beneficiary status, the initial document disclosures seek to provide a factual delineation of lineage from the present to the ancestor claimant asserts is the basis for bis claim.
A
1. Each primary genealogical document must connect an individual to the preceding generation;
2.. Any incomplete or defective/inaccurate/ambiguous primary genealogical document may be supplemented by collateral/secondary evidence which supports the claim of descent;
3. Secondary or supporting evidence may include (i) probate records including BIA probate records; (ii) photos of headstones; (iii) death certificates; (iv) oral tradition; (v) census roles, censuses; allotment roles/records; (vi) obituaries/newspaper articles; (vii) family trees; (viii) BIA family trees; (ix) land records; (x) historical accounts; (xi) affidavits of paternity; (xii) adoption records; (xiii) church records; (xiv) family records
B Type f of Documents::
1 Birth Certificates: A complete birth certificate includes the child's name and the name of the parent from whom the child is tracing through.. Incomplete or defective birth certificates may be supplemented by secondary evidence Birth certificates should be supplied for each ancestor if available..
2.. HoipitaJ Recordr. A complete hospital record includes the child's name and date of'birth and the name of the parent from whom the child is tracing through Incomplete or defective hospital records may be supported by secondary evidence
3. Baptismal ~Recvrdr. A complete baptismal record includes the individual's name and the name of the parent8 from whom the child is tracing through, the individual's date of birth, date of
Individual's name and the names of parents may be their Indian name


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baptism, and the place of baptism. Incomplete or defective baptismal records may be supported by secondary evidence.
4. Collective Chunch Baptismal Records: A complete Collective Church record includes the identity of the church, the volume and the page number of the entry and the official documenting the recorded events
5.. Family Bible: The entry of the event should be contemporaneous with the date of the event. The entty should identify the individual, the event, and the date of the event.
6.. DNA Tests: Tests must be sufficient as admissible under BIA standards.
C.
Each individual plaintiff shall have a copy of his primary genealogical documents and the secondary documents proving descendancy to the designated ancestor in descending chronological order from the present to the past.
D.. Other Documents Responsive to Document Requests on Interrogatories:
The meaning of "document" not otherwise within the categories or contexts of the types described in Section B shall include a meaning in the broadest possible sense to support and substantiate your response or answer to an interrogatory, admission, or document request disclosure,.


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Excel Spreadsheet




47A

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CONFIDENIIAL ATTORNEY WORK PRODUCT EXAMPLE Family Tree
Mormon and Kaardal PA
Suggested Initial Outline
Step 1. Document Organization for Spreadsheet
1886 -25.1 Mary LaBatte 52 - Phillip LaBatte - John LaBatte
- Philip LaBatte
- Phiilip LaBatte Jr
- David LaBatte
- Jennifer LaBatte
- (Catherine LaBatte
- Stephen LaBatte
- Alicia LaBatte
- Zachery LaBatte
- John LaBatte
- Jacque LaBatte
- Ravalli LaBatte
- John A LaBatte
Step 2. Transmit Information to Spreadsheet


No Page number listed --------------Mdenney note


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CONFIDENTIAL ATTORNEY WORK PRODUCT



The other pages to this is Documents that the attorney Gave they will have to be posted in pdf


mdenney

[asmith]

I am rather curious of some of the actions in this case. I have some questions that I hope that you can answer? Is the Lower Sioux Community the only ones to particiapte in the court proceedings? There are three Communities. Second what happens if one of the Communities had infact violated several of the laws? such as the NIGC regulations. Would that effect the ruling or the Interlocutory Appeal? Many of the people that have submitted their claim of "loyality" of the Mdewakanton Sioux have had some form of documentation to prove their lineal decent or this matter would have not gone as far as it has. Correct? I guess I am confused about this matter since it does change in litigation so often. If you could answer some of these questions it would be grately appreciated. Thank you.

[mdenney]

No The lower Sioux is not the only ones but it really nice of them to be part of this Action. So I will say The Lower Sioux knows the truth about why the lands was given to the loyal mdewakanton and they are fighting for what is right for there people. And I for one says Thankyou.

Yes there is three lands of the mdewakanton that is for the loyal mdewakanton.

NIGC - is
Independent federal agency of U.S. which regulates gaming activities on Indian lands, ensures fair gaming . And as it states in the Motions - Joint Status Report Dated July 20, 2007 .

Then you ask this- Second what happens if one of the Communities had infact violated several of the laws? such as the NIGC regulations. Would that effect the ruling or the Interlocutory Appeal? No the lawsuit should correct this.


You now ask this- Many of the people that have submitted their claim of "loyality" of the Mdewakanton Sioux have had some form of documentation to prove their lineal decent or this matter would have not gone as far as it has. Correct? YES CORRECT , may I add and did alot of research to get this paper work too.

I will add, we are all waitting for the Judge now to rule on alot of Questions or Motions as the law calls them.

asmith said:

I am rather curious of some of the actions in this case. I have some questions that I hope that you can answer? Is the Lower Sioux Community the only ones to particiapte in the court proceedings? There are three Communities. Second what happens if one of the Communities had infact violated several of the laws? such as the NIGC regulations. Would that effect the ruling or the Interlocutory Appeal? Many of the people that have submitted their claim of "loyality" of the Mdewakanton Sioux have had some form of documentation to prove their lineal decent or this matter would have not gone as far as it has. Correct? I guess I am confused about this matter since it does change in litigation so often. If you could answer some of these questions it would be grately appreciated. Thank you.

[soldierboy]

Nice! That was priceless to see that response...not only that information is coming out and this is what I am paying for...lol

Good work denney.

[asmith]

Thank you so very much for answering my questions. It helps expalin a lot of questions that I was not aware of. Thank you. I have a better understanding now.

[asmith]

a few days ago I had asked about "what if one of the communities had violated the NIGC?'"There reason for that question is because I know it had. There is a investigation into the matter. It was not just one violation but many of very important federal laws as well. I know the person that this is happening to. It is embarassing to even mention that it could have ever happened. I am glad that the interlocutory appeal will help repair the damage. I had spoke with the person that is going through this and he is happy that there is finally a resolution. He has had so many officials intervene because the laws keep getting broken by one of the Communities. But he is happy that the Lower Sioux Community is helping all the people and understands the research that they had done. Many Thanks to them.