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Post by mdenney on Aug 7, 2007 2:24:50 GMT -5
Monday's Court Conference
Monday's court hearing went well. The only decision Judge Lettow made
from the
bench was that even if he grants the United States certification for
appeal
(allows it to take an appeal now), he will not stay the case. In other
words,
the case will continue if he allows the appeal.
Sam Killinger presented the intervenors belief that the correct burden
of proof
to establish genealogy should be "preponderance of the evidence." That
is the
standard used by BIA in probate, paternity and most other Indian cases
Finally, Judge Lettow has granted us leave to add newborns until August
20,
2007. I need you`ll to get YOUR Attorneys, The newborn names and birthdates right away to them !
---------------
denney
This is information I am releaseing because I feel this part needs help from all of you to put the word out Ok .
More info will be added as I find it or its gets the ok .
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Post by mdenney on Aug 12, 2007 11:45:13 GMT -5
August 6, 2007, Scheduling Hearing
The Honorable Charles F. Lettow, Judge Presiding.
Plaintiff and Intervenor Attorneys
(present in courtroom):
Erick G. Kaardal
Sam Killinger
Gary Montana
Unknown female
Kelly Stricherz
13 individuals on the phone
Government Attorneys
Laura Maroldy
James Porter
Judge Lettow said the hearing would be conducted in 3 parts:
1. Felix Family
2. How to proceed (status)
3. Government requirement for certification (a party issue), CDs submitted, and Privacy Act.
I. PARTY ISSUES
A. Felix Family.
(1) Maroldy: The Felix family needs a lawyer to continue. They have not filed a complaint. Clarification.
(2) Thurmon: Not a representative for Felix family. No contact.
(3) Johnson: Representative for 220 members. Ms. Francis brought an action last July7 for the whole family. Named the family in November. No lawyer yet. He will file a motion for clarification for representation.
(4) Lettow: 10 months have passed, what do you wish to do?
(5) Johnson: Asks that those who failed last November be allowed in.
(6) Lettow: How many people do you represent?
(7) Johnson: 380 individuals at this time (Felix)
(8) Lettow: You can amend your motion or not or you can drop representation and file a new one by the 20th of August. Ms. Maroldy will file a response by the 27th.
(9) Maroldy: Yes. Does Grandchildren count? That does not count…
(10) Lettow: Grandchildren count, immediate family counts, you do not have CDs from…
(11) Maroldy: Morgan/Johnson do not have CDs.
(12) Johnson: We will have them to you right away.
(13) Lettow: You must have them here by August 20, 2007.
B. Anonymous Plaintiffs
Lettow: Anonymous plaintiffs must be identified by August 20. A list of John Does has been received. August 20 is the absolute deadline to turn in John Doe names.
C. Privacy Act
Kelly: Motion filed on July 19th No. 511, July 20th No. 512
Maroldy: I am fine with it.
D. Number of Intervenors
(1) Killinger: Represented 217 intervenors June 2006, 42 July and August, total 259, 36 with Mr. Kaardal, 106 KITTOs, for a total of 401 individuals represented by Mr. Sam Killinger. Wants to resolve an issue with Ms. Maroldy
(2) Lettow: Understands the middle name issue. He strongly urges everyone to finalize the lists by 8/20/2007.
(3) Maroldy: Will resolve the Kitto/? co-represented problem. That will be quickly resolved.
(4) Lettow: Good! Work together.
(5) Kaardal: Some representation discrepancy: Total 7550 vs. 7558.
(6) Montana: Name discrepancy, will be corrected.
(7) Ms. Emerson: Make some corrections by 8/20.
(8) Morgan: Will have the list complete by 8/20.
(9) Maroldy: Let’s make the cut-off date on 8/20.
(10) Lettow: You will have until 8/20, then we will have to cut this off. This is the defined cut-off date.
(11) Morgan: Define to parents by name.
(12) Lettow: Minor will be identified by parent and name. No need to file a motion. You have my permission to provide a list to the court and Ms. Maroldy.
(13) Kaardal: What is a new-born…
(14) Lettow: I will not get into that. Those who amend must supply a full roster to the court and Ms. Maroldy. Apply Rule 25 - will be difficult after 8/20, we will deal with this when it happens. Okay to include a young person’s name, who was away at college. (Maroldy: No. Lettow: Yes.)
II. COORDINATING COUNSEL REPORT
A. Status Report.
(1) Killinger: Provided a report was given on the meetings with Kaardal and how the report was assembled.
a. Burden of proof
b. Genealogical proof??
(2) Lettow: Any objections? The court will accept the report of the coordinating counsels. You should:
a. work together,
b. present a common brief, and
c. without precluding a separate counsel from taking a different stand at any time.
(3) Killenger: Yes. We tried for unanimity.
(4) Lettow: Discussed the effect of the 1863 Act upon the 1888, 1889, and 1890 supplemental censuses.
(5) Montana: We worked well together.
(6) Lettow: Coordination will make it easier.
(7) Montana: Ask summary judgment to find out who will be beneficiaries. Issues are DOI administrative practices.
(8) Lettow: No discovery yet. Suggestion: Think about some discovery before you file for summary judgment. Rule 56F may be invoked. Discovery should be accomplished to reach a decision. We need all the help we can get. Case management is a fascinating study.
(9) Kaardal: Spoke on the consequences of Wolfchild 3 and 4. Mentioned that the trial date is 15 months away. The case concerns only Trust management and the court’s ability to order an accounting. He read page 35 letter. Listed the court’s objectives:
a. Breached fiduciary duties? Yes.
b. Are we entitled to per cap payments? Yes.
c. Distribute common resources? The plaintiffs must be treated fairly and equally to the payments as same as the members.
d. Accounting.
e. Lands.
We are in agreement for disclosure (see proposed schedule order).
Genealogy: Standards proposed: one individual would be brought in and the court would accept the person or reject the person. This will streamline the process.
Damages: The U.S. must provide an accounting of per cap payments immediately. This is not burdensome even if they do not have the records.
(mentioned Table 1 and discussed payments here.) The plaintiffs must be made whole. See the documents by family numbers. It is a good way to coordinate the case.
By limiting the number of plaintiffs. Motions will include genealogy. No one can finish until everyone is accounted for.
Kaardal wishes to know who was alive on what per cap pay day. He suggests that the payments be apportioned out to who was alive on the day the per cap payment was paid.
From this point on I became very interested in what the Attorney or Judge was saying so my note-taking suffered. (Sorry)
(10) Killinger: Differences see page 38 for a starting point. Talked about the intervenors (see list.)
a. 39-43 Substantial
b. 44-46 Preponderance of evidence.
c. 46A-1 for burden of proof.
d. 46 A-3 9 items listed i-ix
footnote: Baptisms used Indian names
e. Use Bureau of Indian Affairs Standards of Evidence.
(11) Kelly: Discussed her method of documenting genealogical information. Software is available with numbering system that uses the decimal system.
(12) Kaardal: His method was a hybrid.
(13) Lettow: 1863 Act. Question, “What does Lineal Descendant mean?” The 1863 Act was a predecessor. “Loyalty and heirs forever.” The 1863 Act will play a part. (Sort that out.)
(14) Maroldy: Issues are complicated.
(15) Lettow: The issues are complicated because you made them complicated. I will not STAY the CASE. Ms. Maroldy, you are endeavoring to help. You are being extraordinarily good. The gaming revenues. Where do they come in? This is central. If our position is correct: That would streamline the case.
(16) Lettow - continues: Let’s stop. What property was remitted to the communities after the Act. The court does not know what happened to the money, land, or personal property. We must delineate the Trust interest of the group. What role does the 1863 Act have on the 1886, 1889, and 1890 Acts? From 1863 to 1890 there was lots of administration by the Bureau. These are very basic issues. (1) the assignment of “Trusts,” and (2) the courts addressed the 1863 Act but still have some to go.
(17) Maroldy: These set a date May 20, 1886 and does not go back to 1863.
(18) Lettow: You have to look at what happened before the 1886, 1889, and 1890 Acts into legislative context. You wish to go straight to the Court of Appeals on a couple of abstract questions? You want us not to do anything in this court at all.
(19) Maroldy: YES. Genealogy is expensive. One aspect that has yet to be determined is what the court wants to delineate a “Trust.”
(20) Lettow: You need an explanation and definition of the precise property description.
(21) Maroldy: Understanding the land via the Federal Register notice. Addresses that piece. There is a Trust but lots of issues to determine. (She takes a different view on the land, and so forth.)
(22) Lettow: (My questions are) What property is involved? What happened to the property specifically? Who is a lineal descendant? Yes, you can make it as complicated as you want.
(23) Maroldy: This is more complex than anyone can imagine.
(24) Lettow: I thought I said that 15 minutes ago.
(25) Maroldy: Who is a Lineal Descendant for example? What are the criteria? The U.S. point of view is that if the case proceeds, “What is the question of the gaming revenues?”
(26 ) Lettow: “That is the elephant in the room.” What is the precise property involved? What is Trust property?
(27) Maroldy: What does the gaming revenue have to do with it? What does the court include in the Trust?
(28) Lettow: Hold it. You must first decide my 3 questions.
(29) Maroldy: What is the answer to the first question?
B. Certification
(1) Lettow: Does time mean anything to you?
(2) Maroldy: We wish to change dates on the orders adverse to U.S. April order was central issue appropriate to summons community.
(3) Lettow: You dug a big hole: Extraordinary reach.
(4) Maroldy: We recognize it is extraordinary reach, but…
(5) Lettow: You are obliged to sort out party issues first.
(6) Maroldy: This is the appropriate time to determine the merits of the issues. The appeal may sharpen the focus of the case.
(7) Lettow: There are real problems for you to ask for a halt.
a. We do not know what happened to the property.
b. We do not know what is (central and???) in the Trust.
c. We do not know who is a lineal descendant.
(8) Maroldy: The definition of “Trust” does not have to be delineated as yet.
(9) Lettow: The court went as far as it can: Has jurisdiction? Yes. Trust? Yes.
(10) Maroldy: That question should be reviewed by the Court of Appeals. That is inappropriate for this court.
(11) Lettow: (my impression is the Judge said that she has a snowball’s chance in H___.) You have 10 days to petition the appeals court. You have waited to long. No delineation of the Trust 3.5 years now.
(12) Kaardal: WE want our beneficial Trust properties delineated: The land, the reservation, per cap payments, we want the same as the others. Timeliness is not raised. Significant due process problems area raised.
(13) Lettow: We still have not had discovery.
(14) Kaardal: Argues against sending this case to the Appeals Court at this time. This is a 12B6 case. Assess the Trust mismanagement issue then move on. Erick argues against sending this case up in a piecemeal manner to the Appeals Court. He also argues against piecemeal statutory judgment. “Let’s do a full record before going to the Court of Appeals.”
The court was adjourned. I met Mr. Sam Killinger, briefly in the courtroom. I went out into the hallway to converse with Tamara. (She is a very nice person.) Gary Montana, passed by said something in DAKOTA. I said my “good bye” to Tamara and left.
NOTICE: These are my handwritten notes and must be read as such. Anyone quoting these notes must obtain my written permission. Signed: Curtis M. Kitto.
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Post by mdenney on Aug 13, 2007 15:21:21 GMT -5
Remember this date is amost over if you know of anyone with a newborn baby that parents are part of this lawsuit contact them, tell them they only have several days to get the information to there attorneys. Monday's Court Conference Monday's court hearing went well. The only decision Judge Lettow made from the bench was that even if he grants the United States certification for appeal (allows it to take an appeal now), he will not stay the case. In other words, the case will continue if he allows the appeal. Sam Killinger presented the intervenors belief that the correct burden of proof to establish genealogy should be "preponderance of the evidence." That is the standard used by BIA in probate, paternity and most other Indian cases Finally, Judge Lettow has granted us leave to add newborns until August 20, 2007. I need you`ll to get YOUR Attorneys, The newborn names and birthdates right away to them ! --------------- denney This is information I am releaseing because I feel this part needs help from all of you to put the word out Ok . More info will be added as I find it or its gets the ok . |
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Post by mdenney on Aug 23, 2007 15:14:32 GMT -5
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Post by mdenney on Aug 25, 2007 10:45:01 GMT -5
THIS IS ONLY A HIGHLIGHTED AND COPIED AND PASTED FOR THOSE THAT HAVE SLOW connection speed and this is alittle easier to read.
UNITED STATES
COURT OF FEDERAL CLAIMS
SHELDON PETER WOLFCHILD, )
ET AL, )
)
Plaintiffs, )
)
v. ) Docket Nos. 03-2684L
) 01-568L
UNITED STATES, ) (consolidated)
)
Defendant. )
Pages: 1 through 108
Place: Washington, D.C.
Date: August 6, 2007
---------------
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETER WOLFCHILD, )
ET AL, )
)
Plaintiffs, )
)
v. ) Docket Nos. 03-2684L
) 01-568L
UNITED STATES, ) (consolidated)
)
Defendant. )
Room 508, Courtroom 7
National Courts Building
717 Madison Place NW
Washington, D.C.
Monday,
August 6, 2007
The parties met, pursuant to notice of the
Court, at 10:00 a.m.
BEFORE: HONORABLE CHARLES F. LETTOW
Judge
APPEARANCES:
For the Plaintiffs:
ERICK G. KAARDAL, Esquire
Mohrman & Kaardal, PA
35 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
(612) 341-1074
APPEARANCES: (Continued)
For the Defendant:
LAURA M. L. MAROLDY, Esquire
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 663
601 D Street, N.W.
Washington, D.C. 20044-0663
(202) 514-4565
Also for the Defendant:
JAMES W. PORTER, Esquire
U.S. Department of the Interior
For the Intervenors: (via telephone)
GARY MONTANA, Esquire
Montana Associates
N12923N Prairie Road
Osseo, Wisconsin 54758
(715) 597-6464
Also for the Intervenors: (via telephone)
KELLY STRICHERZ, Esquire
Kettering Law Office
717 Douglas
Vermillion, South Dakota 57069
(605) 624-3333
Also for the Intervenors: (via telephone)
ELIZABETH T. WALKER, Esquire
Walker Law LLC
127 South Fairfax Street, Suite 126
Alexandria, Virginia 22314
(703) 838-6284
Also for the Intervenors: (via telephone)
SAM S. KILLINGER, Esquire
Rawlings, Nieland, Probasco & Mohrhauser
522 Fourth Street, #300
Sioux City, Iowa 51101
(712) 277-2373
P R O C E E D I N G S
(10:00 a.m.)
THE CLERK: All rise. The United States Court of Federal Claims is now in session, the Honorable Charles Lettow presiding.
THE COURT: Please be seated. Good morning.
ALL: Good morning.
THE COURT: The case before the Court this morning is Sheldon Peter Wolfchild et al. v. United States, No. 03-2684.
We are awaiting the conference call from the parties, almost entirely the Intervenors, who are participating by telephone this morning, and that call has not come. And the Court has a couple of questions that we might address while we're waiting for that call.
I guess first of all what we ought to do is identify counsel. Mr. Kaardal, could you identify yourself and your colleagues for the record, please?
MR. KAARDAL: Yes. My name is Erick Kaardal, representing what we call the Wolfchild Plaintiffs. And then my co-counsel here is Sam Killinger, and then Gary Montana, Kelly Stricherz, and Elizabeth Walker.
THE COURT: Thank you. It's actually a pleasure to have you here in the courtroom this morning.
And Ms. Maroldy, would you please identify yourself for the record, please?
MS. MAROLDY: Yes, Your Honor. Laura Maroldy for the Defendant, United States.
THE COURT: And with you?
MS. MAROLDY: With me, Your Honor, is James Porter from the Office of the Solicitor at the Department of Interior.
THE COURT: Thank you. Welcome, Mr. Porter.
The Court has in mind a three-part hearing this morning, first to deal with some lingering party issues, that is, those associated particularly with the Felix family. There are a couple of other matters, however, that are tied into the party questions.
And then second, to deal with the matter of how to proceed next in the case and the subjects that are addressed by the status report that was filed by the parties. And then thirdly, to address the government's request for certification.
Do you have any comments on that progression?
MR. KAARDAL: No, Your Honor, we're prepared to argue the three points.
THE COURT: All right. Ms. Maroldy?
MS. MAROLDY: We're fine with that, Your Honor.
THE COURT: All right. Do you know of any other major topic headings that we ought to address?
MS. MAROLDY: Your Honor, whether this is a major topic heading or not, I think there's still one thing I would like to clear up, with the submission of the CDs and so forth by the various parties.
I'd like to understand whether everyone who has submitted a CD is able to say that those are their parties, those are the same persons who filed their respective complaints.
THE COURT: The Court would propose that that be addressed as one of the party issues. And the Court understands that that's an outstanding matter. And we also have the question of the identification of the John or Jane Does. But let's cover that in the first set of party-related issues if we may.
Ms. Stricherz?
MS. STRICHERZ: Yes. I had filed a motion for the Privacy Act material modification.
THE COURT: Yes. I'm going to encompass that within the party-related matters as well.
MS. STRICHERZ: Okay. Great. Thank you.
THE COURT: All right.
(Pause.)
THE CLERK: Bernice?
OPERATOR: Yes, I'm here.
THE CLERK: If you could please bring in the other participants in the conference. Thank you.
OPERATOR: Okay. I'm going to place you in the conference, and turn the music off first, okay? Thank you.
THE CLERK: Thank you.
OPERATOR: Good morning, and pardon the interruption and thank you for holding. Your conference leader, Judge Charles Lettow, is on the line. I would ask that each of you would put a star-six on your phones to mute your phones, and star-six again to speak. Can I get you all to do that now, please?
THE COURT: This is the Court. We're in courtroom 7 in Washington, D.C. I'd like to call the roll, please.
On the line should be Mr. Thurman. Are you there?
MR. THURMAN: Present, Your Honor.
THE COURT: Thank you. And Mr. Kettering?
MR. KETTERING: Present, Your Honor.
THE COURT: Mr. Leighton.
MR. LEIGHTON: Yes, along with my partner, Randy Thompson.
THE COURT: Thank you. Mr. Magnuson.
MR. MAGNUSON: Here, Your Honor.
THE COURT: Thank you. Ms. Emerson. Ms. Emerson?
MS. EMERSON: Here, Your Honor.
THE COURT: Thank you. Mr. Hogan.
MR. HOGAN: Present, Your Honor.
THE COURT: Mr. Blair.
MR. BLAIR: Yes, Your Honor.
THE COURT: Mr. Rooney?
MR. ROONEY: I'm on, Your Honor.
THE COURT: Thank you. Mr. Morgan. Mr. Morgan?
MR. MORGAN: Present, Your Honor.
THE COURT: I'm sorry?
MR. MORGAN: Present.
THE COURT: Thank you.
MR. MORGAN: Morgan is.
THE COURT: Mr. Johnson.
MR. JOHNSON: Yes, Your Honor. Can you hear me?
THE COURT: Yes, thank you. Mr. Pierce. Mr. Pierce apparently is not on the call.
Mr. Foster.
MR. FOSTER: I am present, Your Honor.
THE COURT: Thank you. Mr. Horn. Mr. Horn? And the Court understands that Mr. Horn is not on the call.
Ms. Zephier?
MR. ZEPHIER: Yes, Your Honor, I'm present.
THE COURT: All right, thank you, Mr. Zephier. Mr. Leventhal.
MR. LEVENTHAL: I'm on the line, Your Honor.
THE COURT: All right, thank you. Now, what the Court has done is list a topical agenda; that is, to propose first to address a series of lingering party-related issues; second, to address the status reports addressing further proceedings in the case; and third, to address the government's motion for certification of three questions to the Court of Appeals.
The Court would ask that each of the Intervenors keep their telephones on mute unless and until you either are asked to speak, or you wish to speak, addressing a particular matter. That way, we in the courtroom can hear appropriately, and will not be distracted by extraneous noises on the line.
Is that satisfactory?
MR. LEVENTHAL: Yes, Your Honor.
THE COURT: Thank you. Now, if we could begin with the party issues.
Ms. Maroldy, let's start with the Felix issues. You have a position on the Felix issues. Would you please state it?
MS. MAROLDY: Yes, Your Honor. My understanding is that the Court ruled that the so-called extended Felix family members needed to obtain counsel to proceed in the case. And a motion was filed, I think it's 560 on the docket, I may be wrong, 506 on the docket, that, basically that the Court sort of deemed those persons to be in the case, to be in the case already. And our review of the document would indicate that they have not actually filed a complaint, and it's not clear who represents them. So we need clarification on that before we may proceed. I think the Court's orders were very clear that they needed to have counsel to proceed, and needed to file a complaint through counsel.
And we would be fine if they were to join a complaint that has already been filed, and the United States answer to that complaint were deemed to relate to them, as well.
THE COURT: Mr. Thurman, did you hear that? Mr. Thurman?
MR. THURMAN: Yes, I did, Your Honor.
THE COURT: Would you care to address it?
MR. THURMAN: I guess. I don't believe that I am representing the Felix family. I don't know how my name got associated with the Frances Felix family.
THE COURT: Well --
MR. THURMAN: I have not had any contact with her, Your Honor.
THE COURT: All right, that is what the Court wanted to discover.
Now, Mr. Johnson, have you had --
MR. JOHNSON: Yes, Your Honor.
THE COURT: Have you had contact, and would you care to address it?
MR. JOHNSON: I would, Your Honor. Can you hear me?
THE COURT: Yes.
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Post by mdenney on Aug 25, 2007 10:46:06 GMT -5
MR. JOHNSON: Well, I had to ask, because -- all right. I would like to address it.
We have had contact with and are working with Frances Felix, and approximately 220 or so of her family members have now made the decision to retain us. And I would like to address it briefly.
Frances Felix before she retained counsel, if the Court will recall, brought a motion without identifying class members or group of parties in the summer of last year to have all of her family included. And the Court then in its August ruling indicated that they would be allowed into the case. They were put on the grid on the August order without naming them. And the Court ordered Ms. Felix to name them at a subsequent date.
She did that in November of last year and provided a list of names to the Court. And by that point, we still had not been retained. Our law firm had not been retained. And between that November period and the time of the hearings that preceded the April 27 order, people began to call and ask if we would work with them.
When Your Honor's April 27 order came out, by that point, I did not feel that it would be appropriate or I didn't feel that it would be presumptuous for us to submit an amended complaint after that order was filed. And that's why I needed to bring this motion for clarification or for modification, to seek leave to allow only those members who had been identified by Frances Felix in November that have retained us into the first case.
And if I understand the government's position, it sounds as if they do not object to that so long as the proper procedure is then followed with an amended complaint.
THE COURT: Well, one of the problems, Mr. Johnson, is that the procedure should have been followed last September, or at the latest, October, almost 10 months ago. What do we do about that?
MR. JOHNSON: Well, the only thing I can urge is to acknowledge that Ms. Felix, who was still doing it pro se at that point, was communicating with an extended family all around the United States that had not retained counsel. She should have certainly acted sooner, but she didn't really do it quite as fast as the Court wanted her to do it.
And now, I would just urge that those who finally were identified by late October or November, when she filed her submission, that have now retained counsel, be allowed in.
THE COURT: Well, you have currently, as the Court understands it, the Roake Ann Taylor descendants, is that correct?
MR. JOHNSON: Yes, Prescott, Taylor, and Roake, that's right.
THE COURT: Roake. Let me just try to sort out how many people are in that group. You might have to help me out, Mr. Johnson. How many people do you represent in those groups? Taylor -- go ahead.
MR. JOHNSON: Well, Taylor is about, if I recall -- I'm in the car here, but as I recall is about 17, 18. I believe our total number is about 380 at this point altogether.
THE COURT: You have a choice. You can either move to amend your complaint and intervention for those groups, one of those groups, or not. And to add the members of the Felix family, the extended family who are not part of Ms. Felix's immediate family. Or you can drop the representation and file a new complaint. It's that simple.
MR. JOHNSON: Okay. We'll do the former, Your Honor.
THE COURT: All right. Well, let's set a time deadline to do that. Today is the 6th. Would you do that by the 20th of August, please?
MR. JOHNSON: Yes. Yes, we will.
THE COURT: Thank you. And Ms. Maroldy, could you respond within a week? That is, by the 27th?
MS. MAROLDY: Yes, Your Honor.
THE COURT: Thank you. And that will hopefully solve that problem.
Now, we do have the small problem of whether the Felix group appropriately includes grandchildren? Ms. Maroldy, you raised that issue?
MS. MAROLDY: Yes, Your Honor. The fact that there were grandchildren amongst those that had previously been identified as immediate family only became known after, I think, the submission of either a CD or a list of plaintiffs. And our understanding of the Court's rules on pro se representation is that that does not extend to grandchildren.
THE COURT: Well, the Court modestly and respectfully disagrees with Judge Smith's decision in that regard. As far as the Court is concerned, the immediate family does include grandchildren.
MS. MAROLDY: Then the United States does not have a problem.
THE COURT: Thank you. The Court does not want to become embroiled in the same kind of controversy that occurred when a female soldier in Iraq was killed in Iraq, and the care of her daughter was vested in the grandchildren, and they were denied familial benefits. That's just not a conscionable result.
Immediate family, for many purposes in this modern day and age, is almost a reversion to medieval times, in that it does include grandchildren. And the Court will so rule at the appropriate time.
Now we come to, among other things, the question of the CDs. Ms. Maroldy, you say you do not have CDs from certain persons?
MS. MAROLDY: Your Honor, I think at this point there is only one remaining. And I believe we had identified in the joint status report that it was the parties represented by, I think it's Mr. Morgan and Mr. Johnson from whom we did not have CDs. And I think right now it is just the parties represented by Mr. Johnson. And obviously, he's on the line, so he can correct me if I'm mistaken.
But I think we have narrowed down the missing CDs to that one.
THE COURT: Thank you. Mr. Johnson?
MR. JOHNSON: Well, I was under the impression they had been provided, but I apologize if they have not. We'll get them to you right away.
THE COURT: If you don't provide them by the 20th of August, the Court will have to take action.
MR. JOHNSON: Okay.
THE COURT: All right, you have that deadline, Mr. Johnson.
Now may we go to the anonymous or the identification of anonymous plaintiffs, the John and Jane Does, Ms. Maroldy?
MS. MAROLDY: Yes, Your Honor. The Court has ruled that anonymous plaintiffs were to be identified to the Court and to the United States by May 25. It's not clear to us whether that occurred with all of the groups.
The CDs that we eventually received often included fewer names than there were anonymous parties identified earlier, and so that's another issue. We wanted to get clarification when that occurred whether the counsel involved are saying well, these are the only John Does who are going forward. And just again to have assurance that all of the parties have been identified.
I believe at this point we have gotten a list of John Does from all counsel who had identified John Does. But we do need clarification as to whether those are complete.
THE COURT: Right. Do those of you among counsel who have John Doe plaintiffs have any commentary on Ms. Maroldy's recitation? Have you identified all the John and Jane Does?
MR. HOGAN: This is Barry Hogan, Your Honor. We have.
THE COURT: All right. Thank you, Mr. Hogan. Let's just put it this way. When the 20th of August passes, that's the absolute deadline for this exercise. The Court will not entertain any amendments past the 20th of August.
Now the Privacy Act. Ms. Stricherz.
MS. STRICHERZ: Yes, Your Honor.
THE COURT: You have a motion?
MS. STRICHERZ: I do, Your Honor.
THE COURT: I'm sorry?
MS. STRICHERZ: I do have a motion before you.
THE COURT: Please.
MS. STRICHERZ: I just would ask, Your Honor, the Intervenors would --
THE COURT: Now you might have to speak into a microphone just so everyone can hear. I'm sorry to have you do that.
MS. STRICHERZ: The Intervenors would request that we have access to the Privacy Act material that Plaintiffs have had in their possession for a long time. I worked with Ms. Maroldy to get that accomplished, and what's presented to you is in effect what the parties agreed to.
However, when I originally filed the motion I left in a couple of sentences because I didn't get final authorization from Ms. Maroldy. I called her, and we worked that out. And so I filed the one-pager the next day.
But to this point in time, I believe that we have an agreement that the revised order is consented to.
THE COURT: Ms. Maroldy, is that your understanding? I have the filing by Ms. Stricherz that have been mentioned; that is, the filing on
July 19. It's Document 511. And then the addendum July 20, Document 512.
MS. MAROLDY: Yes, Your Honor. The United States is fine with the proposed order that was submitted on the 19th by Ms. Stricherz.
THE COURT: All right. Does anyone have any objection?
MR. KAARDAL: Your Honor.
THE COURT: Mr. Kaardal?
MR. KAARDAL: With respect to the court order, the material is provided in response to the call. And so my question is that, is that just going to be information that was already submitted? Or is the call continuing, with respect to information the United States may have regarding trust beneficiary identification?
THE COURT: The call occurred once. It is not continuing.
Now, are there any other party-related matters?
MR. KILLINGER: Your Honor?
THE COURT: Yes?
MR. KILLINGER: Sam Killinger.
THE COURT: Yes, Mr. Killinger.
MR. KILLINGER: I think that Ms. Maroldy and I have an issue as far as the numbers in the intervention group. And what I hope to do is sit down with somebody from her office after this. And I think our numbers are right, but we have -- there were 217 that were originally filed in June of 2006 in the Enyard intervention. That we added in July and August an additional 42 parties, which comes up to 259 parties.
We jointly represent, my firm jointly represents 36 parties, with Mr. Kaardal. That's 295 total. And we filed a motion for intervention that's been allowed for the Kitto Group, and there were 106 in that. And the total is 401, and I think that's the numbers that come out in our spreadsheet.
I went over the numbers, at least on the Enyard original complaint, and 217; checked it back against our list. We're going to have to -- there are some middle names that we didn't include, that we're going to have to include. But hopefully that is resolved. I don't know, Laura, what your --
THE COURT: Let's not ask a direct question here. But I understand the middle name problem, because, for a whole variety of familial reasons, you get names that continue from one generation to another, and branches of a given family. So that I think you can resolve.
But the Court, before we ask Ms. Maroldy to address your question, Mr. Killinger, the Court is strongly, strongly urging everyone to sort all these party issues out, and the identification, by the 20th of August. We have taken almost four years to do this, but we want an absolute firm and binding list by the 20th of August.
Ms. Maroldy.
MS. MAROLDY: Yes, Your Honor. Just to address the Enyard and Kitto Group briefly, it appears, from what Mr. Killinger said, that we probably can resolve this. We had some concerns -- I think the difficulty lies in the number of persons who were co-represented, and that's why different numbers came up. The difference between 259 and 295. So it sounds as if this can be resolved very shortly.
THE COURT: All right, thank you. And if you would endeavor to work together, as suggested by Mr. Killinger, that would be extraordinarily helpful.
MR. KAARDAL: Your Honor?
THE COURT: Yes, Mr. Kaardal.
MR. KAARDAL: Similarly, there's a discrepancy between the original count and the CD count. And we have an explanation for that which reconciles the two lists.
THE COURT: All right.
MR. KAARDAL: We believe the original count, there was a page counted twice in the caption, and that leads to much of the overage, so to speak. And then there were some duplicates, I think nine of them, that were indicated to the government in our May filing. And so the duplicates, plus the page being counted twice, leads to the difference between 7,550 and 7,588.
Thank you, Your Honor.
THE COURT: 7,588 you think is --
MR. KAARDAL: On the caption. And then 7,550 on the CD. We think the 7,550 on the CD is the accurate count.
THE COURT: Would you say that again, please?
MR. KAARDAL: There was an inaccurate count.
THE COURT: I understand the explanation. Just give me your total.
MR. KAARDAL: 7,550.
THE COURT: An even number? I'm astonished. That's why I asked you to reiterate. I find that a little hard to believe, but --
MR. MONTANA: Your Honor?
THE COURT: Yes, Mr. Montana.
MR. MONTANA: We also have some corrections that we need to make, and misspelled last names. We found middle names finally for some of them. Also, a lot of them would put down their ancestor last names or maiden names, and not married names, legal names. So we will, by the 20th, get that corrected, too.
THE COURT: Thank you, Mr. Montana. That would be appreciated.
Anyone else have a similar type of request?
MR. MORGAN: Your Honor, this is Bill Morgan.
MS. EMERSON: This is Ms. Emerson, and I also have a correction to the caption, adding in additional -- no additional parties at this time, but changes in names to conform with the spreadsheet.
THE COURT: Who is speaking?
MS. EMERSON: Ms. Emerson.
THE COURT: All right, Ms. Emerson.
MS. EMERSON: I will submit that before the August 20 deadline, as well.
THE COURT: All right, thank you very much. And Mr. Morgan?
MR. MORGAN: Yes, Your Honor. We have about six newborn defendants. And has the Court made any orders of any type as to how those should be handled?
THE COURT: Well, people are people. And when you have a group of 22,000, it's not unexpected that you would have additions. I don't know what to do with that, to be honest about it.
Ms. Maroldy, do you have a commentary?
MS. MAROLDY: Well, Your Honor, I don't think we'll ever, if we keep adding newborns, I don't think we'll ever know who the parties are and be able to resolve the issues in the case. So I would, our position would be that, at this point, or August 20, when middle names and so forth get resolved, that is the group of plaintiffs in this litigation.
THE COURT: I think that's right. Mr. Morgan, you have until August 20. You are given leave to add and amend, to add newborns, as well as to amend proper names, or names that are listed, to give proper names. And after that, we're really going to have to cut this off.
That's not to say that we don't have a whole set of questions that relate to, to be blunt about it, errors. And of those questions, we'll continue. But we really do have to have an identified, defined list of parties.
Does that help, Mr. Morgan?
MR. MORGAN: Well, I think so. Is the Court saying that we should try to identify them as best we can, with some kind of reference to their parents or something like that?
THE COURT: Well, yes. Well, presumably, unless they're born the day before the 20th, they have names.
MR. MORGAN: Yes, presumably.
THE COURT: And these individual persons ought to be identified by name.
MR. MORGAN: Right. We'll do the best we can on it.
THE COURT: Well, but it's just that if you have a minor, you're going to have to identify their parent or guardian.
MR. MORGAN: Yes, I see. Okay, thank you.
MR. KAARDAL: Your Honor?
THE COURT: Yes, Mr. Kaardal.
MS. MAROLDY: Thank you. This is an important moment. With adding and amending newborns, is the Court saying that a motion may be filed to amend?
THE COURT: No. You're given leave to do that.
MR. KAARDAL: All right.
THE COURT: But you must provide a listing to the Court, in addition to Ms. Maroldy. Just say these are, by the Court's leave granted today, you're adding these newly born persons to your listing of plaintiffs in your case.
MR. KAARDAL: And, to be fair, could the Court delineate what newly born is?
THE COURT: Oh, I'm not going to go into that question.
MR. KAARDAL: The last couple years, I guess.
THE COURT: Well, I'm just not going to do that.
MR. KAARDAL: Okay, thank you, Your Honor.
MR. HORN: Your Honor?
THE COURT: Yes?
MR. HORN: This is Garrett Horn. I just wanted to say that I will also be amending some captions to mirror the discs that were sent in for name changes or differences in names.
THE COURT: All right. Thank you, Mr. Horn. I'll add you to the list as well.
Yes, Ms. Stricherz.
MS. STRICHERZ: I will do it too.
THE COURT: All right. Everyone is given leave in that respect.
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Post by mdenney on Aug 25, 2007 10:47:54 GMT -5
MS. MAROLDY: Your Honor?
THE COURT: Yes.
MS. MAROLDY: Given the obvious difficulties with these amendments, we would ask that when the parties amend, they also submit CDs with the information that the Court requested, or ordered the parties to give, in its April 27 order.
THE COURT: Yes. Indeed, let's confirm that. Those who amend are obliged to provide Ms. Maroldy and the Court with CDs that list the full roster of persons they represent.
Mr. Kaardal.
MR. KAARDAL: Your Honor, with such a large number, there are also not only people born, but also who die. And we have some clients that have deceased. And if there isn't, obviously there isn't subsequent representation, can they be deleted as part of the lease?
THE COURT: Yes, if you can do that before the 20th. Applying Rule 25 to a group this large is going to be extraordinarily difficult, and the Court makes that comment with respect to persons who die after the 20th of August. And that group of 22,000 -- I mean, we're all going to die some day. And in a group o 22,000, it's going to happen sooner rather than later.
And so we'll just deal with the Rule 25 issues in due course. But we don't have to deal with them now. We can probably deal with them at the very end of the line.
MR. ZEPHIER: Your Honor?
THE COURT: Yes?
MR. ZEPHIER: This is Robin Zephier.
THE COURT: Yes.
MR. ZEPHIER: Your Honor, we also do have some newborns to change on our list. And also, in going back through this process, I noticed that there was one adult that I had left off this list. She was a college student who was away and didn't give me the paperwork last fall when everybody was filing motions to amend. I'd just ask for leave to include that one adult with the newborns in our group.
THE COURT: Ms. Maroldy, do you have a view?
MS. MAROLDY: Well, I think our view has consistently been that it's too late at this point.
THE COURT: All right. The Court will allow that one person to be named.
MR. ZEPHIER: Thank you, Your Honor.
THE COURT: Thank you. All right. May we move away from party issues to the status reports?
Now, we have two types of status reports. Well, we've addressed the CDs of the anonymous plaintiffs. Now we have the question of the coordinating counsel and the alternates.
The Court would hear a report from that group, who identified the coordinating counsel. One of you, Mr. Killinger or Mr. Montana, prepare to address that.
MR. KILLINGER: Yes, Your Honor. I'm coordinating counsel, Sam Killinger.
THE COURT: You may sit, actually. And as long as you speak into the microphone, Mr. Killinger, that's fine. Thank you.
MR. KILLINGER: I always have trouble doing that in a courtroom. I don't know why.
THE COURT: I know, but this is such an unusual proceeding with so many counsel, we have to adapt.
MR. KILLINGER: As I said earlier, I'm Sam Killinger. I'm coordinating counsel for Group A. To my left is Gary Montana, who is coordinating counsel for Group B. The alternate coordinating counsel for A is Garrett Horn. Kelly Stricherz, who is sitting across the table from me, is I disagreeistant. As I put it, I don't think your order contemplated that, but I have garnered an assistant. And Gary Montana's alternating counsel is Mr. Thurmond, and I don't know who is his -- Robin Zephier is his assistant.
Basically, we submitted a joint status report on June 15 of 2007. We had a meeting on June 5 that we put together the coordinating counsel, and put the joint status report. Then we had a meeting with Mr. Kaardal on July 20 -- was it July 20? June 20, excuse me. We had a meeting in his office among the intervenors and the plaintiffs. We basically put together a lot of the part of the joint status report that was submitted to the court here.
And the timetable, we worked on that together and got the timeline that we have submitted. We do have some alternate proposals from the Intervenors that are reflected in the Joint status report that was filed. And I can address those now, or address them at a later time. There aren't a lot; it's some issues as far as burden of proof and types of evidence, and the genealogical numbering system.
THE COURT: All right. The Court will ask all counsel whether there are any objections, whether you all concur with the identification of coordinating counsel and alternates? Are there any objections?
All right, hearing none, the Court is prepared to adopt the coordinating counsel and alternates. Now we ought to talk briefly about the role of coordinating counsel.
The Court would hope, given the number of Intervenors, that the coordinating counsel would work with their groups to develop common positions insofar as that is possible on some of these key issues; and would present a comment brief or position on those issues, without precluding any counsel for any party to take a different position separately stated if they wish. Is that a satisfactory arrangement?
MR. MONTANA: Yes, Your Honor, for me it is.
MR. KILLINGER: Yes, Your Honor. That's, I think, really the way we've approached it to this point. We've circulated these various documents, and that's my understanding. If anybody wanted to file anything separately from that, they sure could. But we've tried to get a unanimity of what is filed and positions on, and we've basically set up briefing teams on different issues.
THE COURT: Right.
MR. KILLINGER: We did that at Mr. Kaardal's office. We set out areas that each parties are going to be briefing on.
THE COURT: Because there are a number of legal issues on. The 1863 Act and its interplay with the Appropriations Act of 1888 and 1889 and 1890 is a key one, but we'll go from there.
Mr. Montana.
MR. MONTANA: Yes, Your Honor. I think at the meeting on June 5 with the intervening counsel, we all attempted to come to an agreement on all the issues. Obviously, I had a great deal more issues, I think, on the table than a lot of them did.
But I think we worked very well together, the Intervenors, to try to come to common ground on a lot of the issues. There is some disagreement on some of those, and then obviously Erick has been helpful, although we have disagreements again on criteria and standard of proof, I'm sure.
THE COURT: Well, that's understandable. But on the other hand, coordination at least will make it easier for the resolution of any disputes that do arise.
MR. MONTANA: I think, Your Honor, one of the issues I had was the procedure for trying to set the criteria. And we had come to the agreement that we would file motions for summary judgment on different types of groups, examples of different types of groups, and that way try to set the criteria.
And I don't know if the Court has any other ideas on that. I thought maybe there would be a hearing on criteria or something, overall criteria, and try to hammer out what a person would have to meet to be part of the beneficiary class, like A, B, C, D, and E or whatever.
But I guess we've come to the conclusion that we'd file motions for summary judgment, for instance, on people that are 1917 census, or 1899 census, or 86/89, or even prior to that. The Congressional Globe people, or people that are just, they're not found on any list that are in Washington.
THE COURT: One of the issues we're going to have, or we might have actually, has to do with the procedures that the Department of Interior adopted. When you're dealing with a statutory scheme that's this old, the administrative practice has some bearing on these issues. And the Court is not completely comfortable that we have all of the relevant, or pertinent might be a better way to do it, administrative materials. We just have had no discovery yet in this case.
And the only suggestion the Court might have, and it's really starting to bend over into the overall schedule for future proceedings in the case, but the only suggestion the Court may have is that you think about whether you need some discovery before you file your summary judgment motions.
It's always awkward to get a summary judgment motion, and then to get a rule 52(f) affidavit sitting there that says well, we need discovery on this point. And that is particularly important where one of the parties -- in this case, the Department of Interior -- probably -- or, I'm sorry, 56(f), when -- well, let's just put it this way. 56(f) says the Court may refuse the application for judgment -- that's summary judgment -- or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had. And I just would like the parties to think about what you might need to put all of the pertinent information in front of the Court, and on the record, when you're making these motions.
Now, you're probably right that the motions are the most important, or most appropriate way to get at some of these issues. But let's just think about what you have to do to get there.
Ms. Maroldy, do you have any comments on this issue with coordinating counsel?
MS. MAROLDY: No, Your Honor. I'm happy the Court got ahead of me on that, because that was something I was planning to ask for. I think it makes sense to have coordinating counsel with so many different groups and members.
THE COURT: Well, the Court obviously had a plan right after the first decision in this case, but it just took a while to get there. But we're getting there, slowly but surely.
Okay. Case management in a case like this is a fascinating exercise. I mean, we need all the help we can get, all of us do.
All right. Are we ready to move to the status report? Mr. Kaardal, would you give us a synopsis of the joint status report and the proposals for future proceedings?
MR. KAARDAL: Sure. May it please the Court.
THE COURT: I was just going to comment that when you started this exercise back in 2003, I'm not sure you expected to be where you are today.
MR. KAARDAL: No, Your Honor. I think, since we began in 2003, I'd like to just outline in a preliminary statement what our goals were after Wolfchild I.
And our stated goals after Wolfchild I -- and this is both in the briefs and in the motions -- were to include all purported beneficiaries, the communities, community members, and intervenors. If you recall, there were a series of motions and back-and-forth.
In this regard, Wolfchild III, the Court issued a notice. So it was a partial success for us in including all the purported beneficiaries. And then, but with respect to the motion to summons the community members, the Court denied that. Rather, the Court issued the motions to the communities only.
With respect to Wolfchild IV, we fought to sustain the summons, and the Court determined to quash the summons, and so the communities are not present, either.
THE COURT: One of the communities is present.
MR. KAARDAL: Right, as an intervenor. From the Plaintiffs' perspective, the Court's opinion indicated that we believe it's not necessary to include Prairie Island and Shakopee. And so we argue now that it's necessary not to include them.
The parallel in the trust law would be that the beneficiaries can bring their suit directly against the trustee. Although a direct tort against a purported wrongful beneficiary may exist, it's not necessary for the case to conclude. And furthermore, happily, the claim that we have coincides with the Court's jurisdiction.
The consequences of Wolfchild III and IV caused a departure change, I would say, with respect to the procedural posture of the case. One, I think that the Intervenors and Plaintiffs are now proposing that the trial ready date be in 13 months.
This is possible because of the absence of Shakopee and Prairie Island, and the cases become significantly streamlined. I can demonstrate this with respect to the attachment to the reply brief that the government filed, in the sense that if you look at that transcript, which related to the government's motion to stay consideration, Plaintiffs' motion regarding the '69 breach of Shakopee, if the Court recalls, that the argument was should the interlocutory appeal occur then.
Well, the reason that we were pushing on the '69 breach, of course, was we anticipated Shakopee, as we indicated in our brief, to have the summons issued. We anticipated Shakopee and Prairie Island in the case.
If Shakopee and Prairie Island were going to be in the case, there may have been need to be more precise with respect to the allocation of beneficial interests and rights, vis-a-vis the communities and the lineal descendants.
We don't see that precision required in the same way now the case has been streamlined. And, as I indicated in the joint status report, we may not even pursue that motion in the future, because it's not longer necessary.
The other reason this case is now streamlined is we're only approaching the Court with respect to ordinary powers in a trust mismanagement case. The Court has indicated it has the two important powers that a probate court has. One is the power to ordinate counting, and then secondly the power to surcharge.
As the Court knows, early in the case there was a lot of talk, and even in our complaint we mention the possibility of an injunctive relief incidental to the final judgment in this case, which is permitted under the statute. So that is still possible, but less and less likely.
In a probate court, you simply don't go, the plaintiffs don't go and ask for injunctions; they ask for surcharges, damages. Injunctions are a lot of work; they have to be carefully crafted, carefully drafted to anticipate future events. That's all less likely now because Shakopee and Prairie Island are not present in the case.
In Wolfchild IV, the Court, in granting the motion to quash the summons issued to Prairie Island and Shakopee, the Court created a to-do list which is, I think, arguably, very narrow: that is, delineate the trust under the Appropriation Acts; two, the accounting; three, the legal status of the current 1886 lands; four, the explication and application of the criteria for trust beneficiaries; and five, calculate the damages for individual claimants. Those are narrow. They're achievable by the Court, they are within the Court's ordinary powers.
The Plaintiffs' list of legal issues to decide are similarly narrow, this Plaintiffs' and Intervenors' lists. Those are proposed at page 34 of the joint status report, which is part of the proposed scheduling order. And I think it's very important that we understand these questions.
A, has the United States breached its fiduciary duties to the lineal descendants by failing to provide a legally adequate substitute since 1980 for the federal land assignments made prior to 1980. In Wolfchild --
THE COURT: I don't see that on page 34.
MR. KAARDAL: I'm sorry. Page 34, going over to page 35. I apologize. Letter A.
In Wolfchild I the Court recognized that up to 1980, the trust was being administered to provide a federal land assignment. After 1980, no legally satisfactory or legally adequate substitute was provided.
And so this is exactly what, this is the nub of the case really at this point. We have proposed a way to calculate damages to surcharge. It's up to the federal government to identify since 1980 what that legally adequate substitute to us has been. And obviously, there hasn't been anything, it's admitted.
Then with respect to B prior to 1980, did the Defendant United States and its agents and the communities breach their common fiduciary duties by failing to distribute the community revenues and other revenues set aside in a BIA trust account 147436, 147936 for lineal descendent non-members of the lower Sioux, Prairie Island, Shakopee, Lower Mdewakanton, and Sioux communities.
So here we're talking about prior to 1980 we have two trust accounts, and there's a 1975 letter from the chief of the audit division of the Department of the Interior indicating these monies have been set aside for the Lower Mdewakanton lineal descendants. And we need a ruling, and I believe we're entitled to summary judgment on that.
And similarly --
THE COURT: Now there are two references in the record to these trust accounts. One is for, as you put it on page 35 of the joint status report, BIA trust accounts, and another to U.S. Treasury accounts. I take it they're one and the same thing.
MR. KAARDAL: That's correct, Your Honor.
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Post by mdenney on Aug 25, 2007 10:49:23 GMT -5
THE COURT: Thank you.
MR. KAARDAL: Yes. And then C relates to distributing community revenues after the 1980 to the lineal descendants. Which leads to D -- and this is an important question I think for the Court to answer in the context of A -- are lineal descendants who are not members of the Lower Sioux Indian, Prairie Island Indian, or the Shakopee, Mdewakanton, or Sioux communities entitled to an equal per capita payment as lineal descendants who are community members.
And this is about streamlining the case and understanding how the accounting might work. Because if it's true that my client's remedy is an equal per capita payment to lineal descendants who are community members.
So in other words, Your Honor, as we've gone through the 1934 Indian Reorganization Act, the establishment of the communities and so forth, it's quite simple, as indicated in Wolfchild IV. My client's beneficial interest means that lineal descendants must be treated equally.
The communities, per the Indian Reorganization Act, their subsequent political decisions of who is a member or not may not diminish my client's beneficial interest. This is how simple the case is, and we don't think we need any more summary judgment motions to prove that.
In other words, that my clients are lineal descendent non-members of the community, and lineal descendent non-members of the community must be treated equally with respect to per capita payments as lineal descendent members of the communities. The Indian Reorganization Act and the subsequent establishment of the communities does not authorize it any differently.
Now, if Shakopee and Prairie Island were here, there may be many more interesting questions to investigate with respect to that, but apparently that will be left for later administrative action and for possibly later litigation.
And then also E refers to the accounting, and F refers to the current status of the '86 lands. And so that, in a nutshell, is my preliminary statement. Now I'll get into the scheduling order itself.
The table of contents indicates that we went through the questions in the exhibit to the rules, and each of the parties had a chance to place in their input. Mr. Killinger and Mr. Montana noted that Plaintiffs and Intervenors came to an agreement on dates for exchanging information. We called those initial disclosures, and they relate to the accounting. So I'm going to go through the dates first, and then describe the elements.
For the initial disclosures, the damages discovery has been proposed to be October 15. The all-party initial disclosures that relate to genealogical documents and other items, October 30. The experts, initially November 15. The rebuttal on December 15. These are all included in the proposed scheduling order.
The summary judgment deadline -- and here there was between Plaintiffs and Intervenors a disagreement, and then an agreement on how to proceed. The deadline for the summary judgment motions is December 20, with an asterisk. And that is, there are two issues on the genealogy, Your Honor, that need to be addressed.
One is the standard. And there are alternative standards being proposed. Your Honor mentioned the Act of 1863, and there are other standards being proposed.
For the government's benefit and those people who might be opposing the standard, the Intervenors and Plaintiffs have agreed that in some instances, only one, the genealogy for one Plaintiff will be brought forward.
So, for example, if you're moving on one alternative genealogical standard, that would be filed on December 20. Perhaps only one Plaintiff would be included with the genealogical documents. This would then be a precise record, if the Judge were going to adjudicate in favor of this standard and in favor of one Plaintiff.
And then if that motion is granted for the alternative standard, then the counsel would have 60 days from the Court's decision to submit the genealogical information in support of the motion for summary judgment in favor of that group's trust beneficiary status.
This puts both the government and anyone who would oppose an alternative standard in a good position because you wouldn't have to do it at the same time, and we'd avoid perhaps unnecessary work.
The hearing date we've proposed on that is the last couple days of February, February 28 and 29. The trial-ready date would be September 30, 2008. There are pretrial deadlines included in the order.
We don't think that with this kind of coordination between the counsel, that it's going to be, the genealogy is going to slow us up much. The reason is, Your Honor, is that the hard part is, it's really a million-document case, but then it all of a sudden gets reduced to a few critical documents.
For example, even with 20,000 Plaintiffs and Intervenors, you're probably talking about, you know, let's say four or five hundred critical links between that first generation off whatever census is being used, or second. And in those, many of those cases, there are birth certificates, baptismal records, other sound evidence to avoid an issue of fact for trial.
And so, for example in our situation, per Plaintiff we're averaging about six or seven pages. That's it, because it's birth certificates. Granted, some Intervenors may be relying on a greater documentary trail, but it's real easy once the information is collected to go through it and see the genealogical connections. Particularly for a large family, because you don't have to revisit an ancestor's genealogical documents to know the list exists. You just need to check once.
And for the current generations in Minnesota, Nebraska, South Dakota, Iowa, Montana, there are good birth records, starting at the latest early 1900s. And so that's where those records have been found, and they're public records and available.
So the elements that I need to defend, in light of the government's objections, are as follows. On the damages discovery, this is what we're arguing; that the United States needs to provide accounting information regarding per capita payments at the three locations: Shakopee, Prairie Island, and Lower Sioux. We believe the government either has the information through the Indian Gaming Regulatory Act reports, or they don't.
And in the first case, we should get that information as part of the accounting. It should be initially disclosed. The accounting must be more than just mere discovery, and we believe that information should be provided to us immediately.
If they don't have the information, then the requests aren't that burdensome, because then they just say they don't have the information. Just like on the genealogy. The cull appear to be burdensome, but they didn't have any information, or real relevant information I'll say; they gave us what they had, so it wasn't that burdensome.
With respect to the Court's stated goals in Wolfchild IV, the damages discovery so-called accounting relates to number 2, which is the government needs to account for the trust corpus. And number 5 -- and this is the tables that I provided to the Court -- regarding the calculation of individual claimants' damages.
Now, for the moment I'd like to go to the tables just quickly to show how this might work. And the tables are United States trust accounting forms. And I did provide one without the shading to the clerk, if that would be more legible.
THE COURT: All right, thank you.
MR. KAARDAL: And so, if I may.
THE COURT: Yes.
MR. KAARDAL: On table 1, Your Honor, we have the two trust accounts that were set aside according to the 1975 letter of Chief Milton C. Boyer, the Office of Audit, Department of Interior.
And here, on 3/21, 1975, we've taken the actual numbers from the auditor's report in the Department of Interior. And what we suggest is the United States provide annual descriptions of the balances in the two accounts. This would be very useful. The Court has acknowledged that even under the best twist of the 1980 Act, it didn't cover these monies already set aside. And so this is an issue that needs to be resolved.
My client's position is, particularly with respect to those monies set aside by Congress to compensate the lineal descendants for the transfer of the Prairie Island acreage to the Upper Mississippi Wildlife and Game Refuge, that's been there since 1944, and it's been a very long time. And that money and the other monies collected need to be distributed.
Table no. 2, 3, and 4 are a little more detailed in the sense that what we have first is the date of the per capita payment benefit to the community members. And so here, Your Honor, every week I guess the Shakopee, Mdewakanton, and Sioux community, perhaps bi-monthly at Prairie Island and Lower Sioux, there are per capita payment benefits paid to the members.
And what we would like from the government as part of the accounting is the date of those individual payments, the gross amount of the payment or benefit to the members, and a list of the members receiving the per capita payment benefit and amount received. And this would be the type of accounting one would expect in a probate court proceeding in State Court, and we believe that the Court has the same power here incidental to the trust mismanagement and partial summary judgment.
Table 3 is the same information for Prairie Island. Table 4 is the same information for Lower Sioux. And again, the accounting tables reflect the date after 12/19, 1980, because that's the current, that's the Court's opinion in Wolfchild I and II; that's when the breach started, and we're not seeking anything earlier than that.
With respect to table 5, Your Honor -- I might as well just finish -- here we have, this is the determination of monetary relief for claimants based on table 1. Table 1 was the two U.S. Treasury accounts.
And so our view -- and I am mindful of the Klamath Tribe case and the other cases regarding delineating of the trust accounting need to be connected to the calculation of damages. So if the date of trial let's say is in September 2008, and the total for account numbers 147436 and 147936 ends up being $100,000, and the number of trust beneficiaries on the date of trial is, let's say, 8,000, or 20,000, whatever, then that would be a simple division. And then we'd up here in the example with $12.50 per trust beneficiary.
And I understand that that seems like a small amount; it is. But it's a very important principle, because that's how the trust accounting occurred prior to 1980, and that money needs to be distributed because Congress indicated it should be, or at least part of it.
Now, table 6 and 7, I just want to go through this last part. This is how, at trial, Your Honor, that we determined the monetary relief for claimants based on Tables 2 through 4. The Court had indicated in its Wolfchild IV order that the fifth thing we're supposed to address was the calculation of damages for individual claimants. And so here is the way that we view it.
We would chronologically list all the community payments and benefits, to the respective community members in the left-hand column. Then you'd have the gross payment benefit to each of the members.
And then, this is critical, and this cannot be calculated until we're at trial. Now, it's algebra, Your Honor, but it can be done, because it's millions of calculations, but it can be done simultaneously with computer programs.
That is, we need to know the number of living trust beneficiaries on the date of the payment of benefit. Because if you're born afterwards, you're not entitled to the payment. That seems logical.
And so we need to determine how many people were alive on the date of the payment. Then that would be, then, the partial award amount per trust beneficiary, and the pre-judgment interest would be determined, as well. That could be done simultaneously with trial.
Now, between the Intervenors and Plaintiffs, the Intervenors initially took the position that there needed to be a bifurcated trial. But when we worked through these charts, they understood that this could be done simultaneously with basic Excel spreadsheets.
Now, millions of calculations, but the precision will be there. We don't have to guess, because we have the birthdates already collected.
Similarly -- I'll just skip to table 7, I guess. Lastly, table 7, what we do is we add the amount from the Treasury accounts plus the partial award from the table 6-A, and you get the total monetary relief.
And so this is how we believe we've tailored our request for an accounting to our damages theory. So we're not coming in and saying look, we're trying to solve all the world's problems. There are many purported beneficiaries. Obviously, Shakopee and Prairie Island purport to be beneficiaries. We don't need to solve all the world's problems. This case isn't set up to do that.
But rather, we have very narrow legal issues to resolve, and a narrow claim for damages. And connected to that, a narrow claim for an accounting.
So if you look at the information we're requesting from the government by October 15, it relates to these per capita payments: how were they made, who were they made to. And it's based on a legal theory that the lineal descendent non-members of the communities are entitled to be treated the same as lineal descendent members of the communities.
In other words, we have siblings of members of Shakopee, we have cousins of members of Shakopee. It just can't be that the government who created the Indian Reorganization Act at Shakopee could diminish the beneficial interests of my clients, which were created by statute, simply by determining if someone is a member or not.
Number 2, the all-party initial disclosures. This relates to all the Court's goals, 1 through 5, but primarily the explication and application of the criteria, and also the calculation of damages.
So with respect to the initial disclosures, it's basically a swap of all the genealogical information that all the parties have. So we want to see the documents, we want to see what you have. But further, there is a requirement proposed that we start identifying the lineal descendants by family and by genealogical number. And there's some differences here about how this should be approached with the Intervenors. I'll let the Intervenor counsel discuss that.
But I'm here principally to discuss the government's objections. And I think that these are, this is a good way to coordinate the case. As the Court knows, this is similar to a class action. As the Court mentioned, there are case management details here to go through. And it's almost like the Court is administering claims rather than doing litigation.
And so in this case, rather than all the parties exchanging discovery, 20-some sets and so forth, having the expanded initial disclosures I believe will reduce the amount of discovery and expedite completion of the case.
Again, if the government doesn't have any genealogical information, which it appears not to have, then the discovery --
THE COURT: Well, it does now, because of the copies of filings it's received. But then, in any event.
MR. KAARDAL: Right. It won't be as burdensome responding. Because if you don't have the information, of course the discovery requirements I suppose are annoying, but if you don't have it, it can't be burdensome, because you don't have the information.
And third, and trying to move along, dispositive motion deadline. This was really where the greatest amount of sort of theoretical work was done on how to resolve all the claims for alternative beneficiary standards.
And it wasn't easy to work through that. But in the two meetings -- we had one in person and one by phone -- we came to the conclusion that the way the most respectful of due process, and to be fair and have everyone have an opportunity to be heard, was to set a deadline. And then to have the Plaintiff and Intervenor counsel coordinate themselves, as we did, or started to do, in filing these briefs.
And so the goal would be to, before
December 20, the Intervenor counsel and Plaintiffs' counsel would coordinate on the fewest number of briefs possible, yet presenting all the different positions.
And why that works in our view is because there aren't an infinite number of issues. When it really came down to it, maybe there are a dozen alternative theories. And so these dozen alternative theories will be presented in two, three, four or more briefs to the Court at one time, and then the Court can interpret the '88, '89, '90 Appropriation Acts and the other Acts that are added at one time. And with the Court's power to reconsider its earlier rulings consistent with the Law of the Case Doctrine, the Court can make a definitive ruling on those different issues and the alternative requirements for trust beneficiary status.
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Post by mdenney on Aug 25, 2007 10:50:19 GMT -5
The dispositive motion, not surprisingly, is an old tool. It's the best way to not only resolve legal issues, but also to identify and isolate factual issues for trial. The Court should be wary, in our view, of deciding abstract, answering in an abstract way, abstract way. To answer legal questions precisely requires a precise record, and that's why the Plaintiffs and Intervenors have agreed, at the very least, the genealogy for one Intervenor or Plaintiff will be included in the motion on the alternative legal standards.
The dispositive motion deadlines serve all of the five purposes of the Court, but no Plaintiff or Intervenor can finish the case until the complete number of trust beneficiaries are calculated. And so we're all in that together, and we need to finish that. I mean, the tables I showed you require not only that we know the number, but we need to know the number on every day since December 19, 1980, so when we look at these per capita payments we can split them out.
And that's why we believe the case can be done this quickly, is that we don't see any affirmative summary judgment motions required on our part to get this case done against the government.
Now, there will be summary judgment motion practice on the genealogical questions and so forth. The Plaintiffs and Intervenors have disagreements; we're not going to come here locked in arm. The issues need to be adjudicated; we understand that.
Other than that, Your Honor, the big objection placed by the government opposed to the joint status report is the motion for interlocutory appeal. And I'll leave that for a later discussion. Thank you.
THE COURT: Thank you. Mr. Killinger.
MR. KILLINGER: Thank you, Your Honor. I'll be brief. I'll get up to the podium here.
May it please the Court, counsel. Basically, the Intervenors and the Plaintiffs, as far as the joint status report, do have some differences. And I'll just point out the pages in the interlocutory, or excuse me, the joint status report.
First, the starting point is at page 38, 38 at paragraph 4. The Intervenor's language, as far as the starting point, is a little more inclusive. It is more inclusive.
At the bottom it says the Intervenor's/Plaintiff's alternate language. That's the last full paragraph on page 38. And it says not only the 1886 and 1889 census, but soldiers and scouts list, et cetera. That addresses the additional claims that Mr. Kaardal pointed out 11 or 12 other type of theories we feel should be addressed.
Then the next area is at pages 39 to 43.
THE COURT: Let me ask a question. Does anyone among the Intervenor group disagree with the use of the 1886 census and the 1889 supplement as a presumptive starting point?
MR. KILLINGER: Well, obviously I don't, Your Honor, because I'm a Group A person.
THE COURT: Right.
MR. KILLINGER: And I don't know that there's any disagreement with that as a starting point. I think that the Intervenors in Group B have other theories, that the scouts list -- there's other theories that they've put forth in their motions to intervene.
THE COURT: The Court fully understands that. Okay, thank you.
MR. KILLINGER: The next area is the genealogical numbering system. That's pages 39 through 43. And I'm going to, when I sit down here, if I could I'd like to have Kelly Stricherz explain the Intervenors' position on that. She's done a lot of work on that, and rather than me try to explain something that probably wouldn't be correct, if it's okay with the Court, we'll have her explain that.
Now, I'll go through the other items, and I don't have a lot.
Beginning at page 44, that is document disclosures instructions. It's 44 for the Plaintiffs and 46 for the Intervenors. It gets down to the burden of proof, standard of proof, burden of proof.
The Intervenors' position is that burden of proof or proof of lineal descendence is by a preponderance of the evidence, rather than by clear and convincing evidence. And we felt that at paragraph no. 1 at page 44, the Plaintiffs' position seemed to indicate, it said, "Each document must conclusively connect the individuals to the preceding generation." And we felt that was more of a clear and convincing burden, rather than a preponderance burden, which the Intervenors have in there.
The Intervenors' alternatives at page 46-A1 have written it differently. It says, "Each primary genealogical document must connect an individual to the preceding generation."
Now, as authority for that -- and I'll just cite some BIA cases so holding -- it's Estate of Charles Daniels. And 1 IBIA 177. That's a 1971 case. The alternate citation is 78 Interior Decisions 329. There it talks about a preponderance of evidence rather than the clear and convincing.
I'd cite one more case here. It's Estate of Frances Conger. It's 13 IBIA 296. That's a 1985 decision. And it's 42 Interior Decisions 512. At 299 of that decision it says, "The standard of proof applicable in Indian probate proceedings is a preponderance of substantial evidence." So that's the Intervenors' position, that it's a preponderance of evidence is the burden of proof.
Additionally, with regard to secondary or supporting evidence, at page 46-A3 of the Intervenors' alternative proposals, the Intervenors are proposing more expansive evidence than the Plaintiffs. They've listed nine items, versus the Plaintiffs -- A4 at page 44. The nine items we've listed are in Roman Numeral I through IX.
Additionally, in that same page there's a footnote. And an area of evidence that's going to be used is baptismals. And the Intervenors have added a footnote that they proposed that an individual name or names of parents in a baptismal may be their Indian name. There's a lot of these baptismals that have just Indian names, and that's an additional proposal.
THE COURT: That's understandable.
MR. KILLINGER: On the DNA testing, at page 47, the Intervenors, at no. 6, compared to page 45, no. 6 of the Plaintiffs. The Intervenors propose admissibility under BIA standards, versus the Plaintiffs' proposal of admissibility under Federal Rules of Evidence.
THE COURT: Does BIA have standards in this respect?
MR. KILLINGER: We believe they do. I can't cite you to them, but --
THE COURT: The Court is just not aware of them, let's put it that way.
MR. KILLINGER: And that's it, as far as the Intervenors' position as far as changes or differences. And if I could, I'd like to turn the podium over to Ms. Stricherz and talk about the genealogical numbering system.
THE COURT: Thank you. Ms. Stricherz.
MS. STRICHERZ: Your Honor, when Intervenors met at Mr. Kaardal's office in Minnesota, he presented a lot of the material we're now looking at to us. And obviously, he had been preparing for this case much longer than the rest of us. And so we liked the idea of genealogical numbering, and it made sense to us.
However, upon doing a bit more research, the particular numbering system that Mr. Kaardal has presented isn't a known system. It's a hybrid off of a known system.
The reason that we put in a specific system, the D'aboville numbering system, is because there's software available to do that. You wouldn't have to manufacture your own program to run a numbering system for you.
The reason I picked the D'aboville was because it was the most similar to Mr. Kaardal's, the only difference being, in Mr. Kaardal's system there's no decimal points after the first initial person. So if the person you're connecting to is no. 52, she's no. 52. And then each person after that would be 52.1, and then no more decimals.
In the D'aboville system you use decimals for each generation. And me personally, I like the visual show of the different generations, even though the digits in Mr. Kaardal's system would mean the exact same thing.
But again, the bottom line is that --
THE COURT: A question the Court would have in that regard is, if I'm remembering this right, and it's been a day or so since I looked at it, there were two digits for one particular generation, and then single digits thereafter.
MS. STRICHERZ: Maybe Erick can speak to that. That was one of the things that I first thought about when he presented it.
The decimal system takes care of that.
THE COURT: Right. So if someone has 10 or more children or descendants --
MS. STRICHERZ: And that is an honest example. There are people in my line who would be a double-digit.
THE COURT: It does get slightly confusing thereafter if you have more than one person.
MS. STRICHERZ: If you have more than single numbers, I agree. I like the decimals.
THE COURT: That is the only comment the Court has on this.
MS. STRICHERZ: There's lots of systems out there, and I don't know that we all need to use the same one or not. I just think as long as everyone has a unique identifier, we would be okay. I just preferred this one. So thank you.
THE COURT: Thank you. The Court understands. Mr. Montana.
MR. MONTANA: I really have nothing to add to what Sam said, Your Honor, other than you had a question about '86, '89?
THE COURT: You mean the 1863 Act?
MR. MONTANA: Right.
THE COURT: Yes, I do actually. Because at some point we're going to have to get around what lineal descendants means in the context. And I guess the Court has a question whether the 1863 Act plays a role.
MR. MONTANA: Well, it was my position, and I've always tried to clarify that with other counsel, and I'd ask them at all these meetings, was the '63 Act an enabling Act that allowed for this to occur through the Appropriation Acts.
THE COURT: Well, it certainly was a predecessor --
MR. MONTANA: Right.
THE COURT: -- to the set of three Appropriation Acts.
MR. MONTANA: Right. Because the '63 Act is different substantively than the other three Appropriation Acts in the sense that it talks about loyalty unto their heirs forever. And it also includes all four bands, not just the Mdewakanton.
Where you get the Appropriation Acts, they only talk about being Mdewakanton, residing in Minnesota and/or removing to Minnesota and have severed tribal relations. The Appropriation Acts do not talk about being --
THE COURT: And it talks about families and so on.
MR. MONTANA: Right. But it doesn't talk about being loyal or friendly, see. And so the '63 Act, you know, as you said, probably set the base for everything that's occurring later, or the foundation. But it clearly talks about being loyal. And it talks about for their heirs forever.
It doesn't talk about having to be a resident of Minnesota, you know, to take these lands; but obviously you would, probably, have to be a resident, or be within the area, to take the 80 acres.
But I mean, there is a lot of discrepancies. The big discrepancy is the Appropriation Acts do not include the term "loyal" or "friendly," whereas the '63 Act does. And obviously, the Appropriation Acts or the, I would say the legislative intent to, you know, support the Mdewakanton in Minnesota during this period of time was that they were supporting the ones that had been friendly and had supported the Whites during the uprising. Which, arguably, are few in number, obviously.
And you know, using the '86/'89 censuses, I've had problems with that. You know, after we've done a lot of research, finding many of those people in Santee, Flandreau, Sisseton, with allotments, you know, later on during the relevant period of time, receiving annuities.
So I mean, there's all of these issues. And I think, you know, if you look at the Intervenors' issues that I've listed -- well, I have it on page 19 of ours. But those are all issues that I came up with that I'm having problems with.
And that's why I said, when we first talked about the motions for summary judgment, to get the setting of the criteria, I said how can you ask for a motion for summary judgment when we haven't set the criteria. We don't know what the criteria is. Because we may have somebody who was on the '86 census, but they were in prison at one time. Or I can present a Hinton letter that says this person shouldn't be here because they have blood on their hands, okay. And yet they're on the '86 census. Or you have other ones that were in prison in Davenport. If they were pardoned by President Lincoln, does that presumption that the pardon, you know, takes away any wrongdoings that they did during the uprising?
So I mean, those are issues that I, you know, am having a hard time with. And they cite to the fact that the '86/'89 censuses were a proxy for friendliness. Where that comes from I cannot find. I mean, I cannot find it in the '71 Solicitor's letter, although I believe it's cited to, you know, the Solicitor's letter. It's not in there. So where that comes from, I have no idea. You know, that if you're on the '86/'89 census that somehow you're in because that's a proxy for friendliness.
And there's clearly people that were close to the situation, like Hinton, you know, who wrote much correspondence about the people that were there, the people that shouldn't have been there. So consequently, you know, I think there are problems with '86/'89. And you have the '63 Congressional Globe that clearly listed people at that point that they felt had been loyal and assisted the Whites during the uprising.
And you know, the '63 Act has always been a thorn in my side, because I just don't know what to do with it. Comparing it, you know, to the '88, '89, and '90 Appropriation Acts. Substantively it's different.
THE COURT: Well, it obviously plays a role, but the question is what role.
MR. MONTANA: Right.
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Post by mdenney on Aug 25, 2007 10:52:53 GMT -5
THE COURT: And I do think we have to sort that out, and sort it out fairly promptly.
MR. MONTANA: Promptly. But other than that, Your Honor, our issues are listed there on page 19. There are quite a few issues. And obviously, you know, some of those issues Mr. Kaardal did not agree with, but we're attempting to work closely with him and come to the same end.
THE COURT: Thank you very much. Ms. Maroldy?
MS. MAROLDY: Thank you, Your Honor. Of course, the United States would take the position that this case is anything but streamlined. I think that word has been used a few times, and I don't -- with respect to all the groundwork that Plaintiffs have laid, we don't see this case going forward as a streamlined process. And I know we're going to get to our motion to certify for interlocutory appeal, but of course that informed our portion of the joint status report.
I think the difficulties just in straightening out the parties' issues illustrate what all parties face going forward in the Trial Court to determine the issues that still remain to be determined before everyone gets to final judgment.
THE COURT: Let me just say, Ms. Maroldy, one thing the Court will not do, whatever it does on your certification motion, is stay the case.
MS. MAROLDY: Well, our point remains that we see the determination of these issues as being very complex.
THE COURT: Well, they are complex if you make them complex. The idea is to try to get an orderly process for sorting through them.
MS. MAROLDY: Yes, Your Honor. And that's certainly what we have tried to do with the party issues. Your Honor identified --
THE COURT: I actually commend you for, Ms. Maroldy, for endeavoring to help by being precise on answering individual Intervenors' complaints; on addressing areas where, for example, you don't have an accurate party listing, or where someone has not complied with one of the prior Court orders, and that's causing a problem. You've been extraordinarily good about that, and the Court appreciates that.
MS. MAROLDY: Thank you, Your Honor. The Court identified in its April 27 order, or the central order that was issued on that day, that delineating the trust is one of the first merits issues, or one of the primary merits issues that the Court perceives.
And the United States would take the position that if this case goes forward in the Trial Court at this time, one of the salient issues that everyone needs to address is the question of whether gaming revenues and so forth constitute part of -- what role, where do they come in? Are they part of this trust corpus? Because I think the status reports submitted both by the Intervenors and by Plaintiffs indicate that that really is central to their interest in pursuing their claims.
And if the United States' position is correct that gaming revenues do not perform any part of the trust that the Court has identified, of course the United States doesn't concede -- of course, its position on the Appropriations Act not creating any trust at all. But if the United States is correct on that issue, I think that would streamline the case very much, because it takes out the need to sort through some of these agency issues. How the supposed agency relationship between the United States and the three communities affects the --
THE COURT: Let's just stop a second. I mean, the Court agrees with you in substantial part. But the Court has never been able to figure out precisely what property, 1886 property, was remitted to the control of the three communities after the 1980 Act; and what monies and other property similarly were turned over to the communities or remitted to the communities after the 1980 Act was passed. Some money passed hands.
The Court never did, in the documentary evidence, have enough to determine what happened. And that's what really the Court meant by the first question, or that's part of it. That's only part.
I mean, what are we talking about? We're obviously talking about real property, we're talking about improvements to real property. We might be talking about personal property; I don't know. We certainly are talking about personal property in the context of money, because some money was transferred. We need to know that.
We also need to have a delineation of the trusts in terms of the group, if you will. And that goes to the questions that the Court was talking about with Mr. Kaardal and Mr. Killinger and Mr. Montana. It's not evident, and the Court never has had before it precisely what the connection is, or the role the 1863 Act has with respect to the subsequent Appropriation Act in 1888, 1889, and 1890. We never have gotten to that question.
And there presumably was a fair amount of administrative -- that is, Department of Interior -- practice in the period from especially 1863 through 1890, or into the early 1900s. The Court doesn't know what that is. And I don't see how we can talk about some of these things without having that base.
MS. MAROLDY: Well, if I understand the Court correctly, I mean, we would certainly agree that the issues that have been decided are very basic threshold issues. I mean, if the Court decided that the 1888, 1889, and 1890 Acts gave rise to a trust, and that the 1980 Act did not terminate that trust --
THE COURT: Well, the Court couldn't see how you could possibly say they didn't give rise to the trust, when the assignments that were issued promptly after those Appropriation Acts said it was a trust. And then all the indicia of a common-law trust were present in the Appropriation Acts. But let's pass over that issue.
The Court, in the opinion, fairly carefully addressed the 1863 Act and the efforts that were made to implement the 1863 Act. And that, in some significant measure, failed, and produced the consequence that a somewhat different route was taken in the Appropriation Acts. But we aren't really all the way there yet.
MS. MAROLDY: Well, Your Honor, in our view, the Appropriation Acts, they speak for themselves in terms of setting a date and saying -- and I don't purport to recite it verbatim here, but it cited the May 20, 1886, date, by which persons who were in Minnesota on that date --
THE COURT: And that's because of the census.
MS. MAROLDY: -- and those who had severed tribal relations.
THE COURT: Right.
MS. MAROLDY: And those were among the groups who were to benefit from the appropriations issued under the Act. So I'm not sure that we need to go back to the 1863 Act, but certainly if that's
what --
THE COURT: Well, somebody disagrees with you. Let's just put it this way. You have more than one speaker, in terms of legislative action, in this case. It isn't just the 1888 Act, or Appropriations Act. It isn't just the 1889 Appropriations Act. It isn't just the 1890 Appropriations Act. You have to look at what happened before, including the 1863 Act. It just doesn't make sense to put blinders on.
And the Court has tried to put this all in legislative context. I see, in large measure, the Court may have failed in that regard, but this Court has certainly tried.
You don't want to do any proceedings in this Court at all. You just want to go to the Court of Appeal on what the Court would view as a couple of abstract questions.
MS. MAROLDY: Well, Your Honor, in our view, we think it makes sense to go to the Court of Appeals on those issues now. We don't see them as abstract; we see them as threshold determinations that this Court made. And the Court's finding that it had jurisdiction we believe hinges on those determinations. And we think, especially since so many people are now in the case, that this is an appropriate time to take these issues to the Federal Circuit.
THE COURT: Now we're shifting over to your motion. Let's go back to the joint status report and the -- you'd rather we not do anything in this Court at all.
MS. MAROLDY: I think, Your Honor, especially, I think that makes sense for all parties and the Court, Your Honor. I think that the genealogies are, I think that they present, they present an aspect of this case, or they are an aspect of this case that's going to be burdensome and expensive for everyone to determine.
I think the discovery --
THE COURT: The Court modestly disagrees with you. The Court is used to the genealogical regime that's put forward by Mr. Kaardal, and amplified by Ms. Stricherz. The question is to determine the starting point.
MS. MAROLDY: Well, Your Honor, that's simply one aspect of the case that has yet to be determined, and that is going to -- I mean, I appreciate the Court this morning expanding on or explaining what it had in mind when it talked about delineating the trust. So it certainly appears from what's been discussed this morning that there are issues that the Court wants to decide regarding the influence of the 1863 Act.
We have the delineation of the trust also, in terms of whether it encompasses gaming revenues. In terms of the other --
THE COURT: Well, now, that question is a little premature, in the Court's mind, because -- and that's what I was trying to explain.
We need an explication, an identification of the precise property that was remitted to the communities after the 1980 Act. That's a starting point. And then we might get, in due course, to gaming revenue. I don't know, that's up to the parties.
But you know, the Court tries to do things in a very logical way. And the first thing is to figure out what property was remitted.
MS. MAROLDY: Well, Your Honor, my understanding is, as far as the land itself, pursuant to the 1980 Act, the Federal Register notice that followed that spelled out which lands were then taken in trust for the communities. So that addresses that piece of it, I think, Your Honor.
But certainly, I certainly take the Court's point, and I think we agree with that. The Court declared that these Appropriations Acts gave rise to a trust, but there remain many other issues to be determined.
THE COURT: I don't know about many, but --it just took it so long to work through the party issues that I think it gave the impression that this case is a lot more complicated than it really is.
MS. MAROLDY: Well, I think, Your Honor, I mean, I respectfully take a different view. Certainly just looking at some of the issues that Plaintiffs identified in their status report -- and I didn't bring it up with me to the podium -- but a question about a substitute for the lands, and so forth and so on. And the --
THE COURT: Well, there are really, if you'll pardon my saying so, just three questions. And the first question is what property is involved. The second question is what's happened to that property subsequently. And the third question is who's a lineal descendent.
MS. MAROLDY: I certainly would agree that those three questions remain. But I would identify either sub-questions or additional questions, such
as --
THE COURT: Well, there are. There are lots of subsidiary questions. You can make it as complicated as you want, but --
MS. MAROLDY: Well -- I'm sorry, Your Honor, I didn't mean to.
THE COURT: No, go ahead.
MS. MAROLDY: But the particular breaches have not been identified. The lineal descendancy --
THE COURT: That goes into what's happened to the property subsequently.
MS. MAROLDY: Yes, Your Honor. But I think the identification of what comes, falls within the trust needs to come first, before --
THE COURT: I thought that's what I said about 15 or 20 minutes ago.
MS. MAROLDY: Well, I apologize if I'm trying the Court's patience.
THE COURT: No, you're not, Ms. Maroldy. Maybe I'm simple-minded, but --
MS. MAROLDY: Or I am, Your Honor. But because I do see this as involving more complexity than I think others admit that this case presents. I think that the Intervenors' joint status report certainly revealed that there are a lot of open issues on the criteria for determining lineal descendancy.
THE COURT: That's right, that has a lot of subsidiary issues. But to the Court's mind, that's the third of the questions. And you can state it in a few words, half a dozen words: who is a lineal descendent. What does that mean.
MS. MAROLDY: Exactly. What are the criteria, and who meets those criteria.
And so, from the United States' point of view, I mean obviously, I understand you're going to address the motion for interlocutory appeal later. But if the case does proceed in this Court, our view is that one of the first issues that needs to be decided -- and I think this is consistent with the Court's view that delineation of the trust is one of the primary merits issues remaining -- is the question of the gaming revenues. And there may be questions --
THE COURT: That's the elephant in the room, there's no doubt about it.
MS. MAROLDY: And I think once that is resolved, it may clarify what issues it's best to decide next.
THE COURT: How can the Court decide that issue without having tackled the question of what property actually is involved, and then what has happened to that property?
MS. MAROLDY: I guess, Your Honor, the way I see it, the question of whether the gaming revenues are within trust property or trust funds forms a part of the question of what property was involved, and what happened to it. And what the breaches may or may not be.
I think otherwise you're assuming, perhaps one is assuming that the Appropriations Act's trust, or what's been identified as a trust, would include those gaming proceeds. And our view is that no matter what land --
THE COURT: Ms. Maroldy, the Court is not assuming that. That's why I'm trying to go at first principles; you know, those three basic questions. And I don't see how you could possibly decide the gaming question without getting at the first of the two questions I posed.
MS. MAROLDY: I guess -- excuse me, Your Honor. Our position is that it's part of the first question that the Court posed.
THE COURT: It's a subordinate part.
MS. MAROLDY: In what sense, Your Honor?
THE COURT: Of the second question, probably. But it might be part of the first question. But the first question is really a simple one. What precise property was involved? It's really simple.
The second question is, you know, it has all these subparts probably, but I don't know. You, as parties, are involved in the case. You make up, through your arguments and positions and development of the facts, the case as presented to the Court. The Court doesn't go out and do this itself. But I still don't have an answer to the first question.
MS. MAROLDY: Well, as I said, Your Honor, I think as to the lands, that was addressed in the legislation and regulations and the Federal Notice themselves.
THE COURT: Well, shall we shift to your certification motion?
MS. MAROLDY: Surely, Your Honor.
THE COURT: Does time mean anything in this context? You're asking the Court to amend an order that was issued in 2004.
MS. MAROLDY: We're requesting that the Court amend three orders, Your Honor: October 2004, the December 2005 order, and the August 22, 2006, order. And we see them as all really bound together.
THE COURT: Why isn't the fourth order of this past April included? Is there something wrong with that one?
MS. MAROLDY: Your Honor, from our point of view, we saw the 2004, 2005, and 2006 orders as, excuse me, I think those contain the rulings that were adverse to the United States on what we see as controlling questions. We think that the April order was, in terms of the central issue, was consistent with the United States position on whether or not it was appropriate to summons in the communities. And so we are not --
THE COURT: There's no doubt about that. But you dug a big hole for yourself when you omitted it, because there is a time limitation on motions to certify. And you don't have -- well, it's an extraordinary reach to go back as far as you've gone. Extraordinary.
MS. MAROLDY: Well, Your Honor, we recognize that it's an extraordinary reach, but we would say that this has been an extraordinary case, in that the identification of all of the interested parties it seems to us did not begin in earnest until after notice was issued. And that occurred well after the issuance of the October 27, 2004 order.
THE COURT: Well, under Hoffman-LaRoche the Court viewed that it was obliged. The Supreme Court basically said you're obliged to sort out the party issues first before you go further. Once you figure out that you have jurisdiction. And under White Mountain Apache, this Court has jurisdiction to decide. And the Court tried to be very organized and logical in approaching the party issues.
MS. MAROLDY: I would agree with that, Your Honor. But I guess our central point here is that, since the Court made the effort to bring in all of the potentially interested parties, or made sure they had an opportunity to join, before --
THE COURT: For the latter, you have pointed out a number of times.
MS. MAROLDY: That this is, I mean, despite the passage of time, this is the appropriate time for all of those parties to have an opportunity to proceed, excuse me, to participate in the further merits issues.
And because the questions that we identified which form the basis for this Court's finding, that it has jurisdiction are so important that we think it's appropriate that all of those parties have the opportunity to proceed in the decision of those issues.
Whereas on the other hand, if all parties go forward on some of these other issues -- for instance, excuse me, the influence of the role of the 1863 Act; the questions, really the genealogy questions; the questions of which criteria define who is a lineal descendent -- we think that the appeal may sharpen the focus of the case to the extent, for all parties in the Court, it would make sense to go up now, rather than to have everyone proceed in some of the most expensive and time-consuming parts of the case, only to then face a possibility of appeal after final judgment.
There has been a comment made a few times this morning, well, if the government doesn't have documents, then, you know, we can move right along. Well, the fact is that potentially relevant documents can be located, or potentially located, in any number of agency offices across the country. Especially when we're talking about descendancy, severance of tribal relations, and so forth and so on.
So, I mean, there's a tremendous burden for all parties involved in going forward with this case now, when there is a possibility that some of these very fundamental issues could be decided by the Appellate Court, and we would all have the benefit of that going forward.
THE COURT: Well, you might be right. But the Court posed that question several times to Mr. Longstreph as we were working our way through the party issues. And you know what his answer was.
MS. MAROLDY: I believe his answer, in the transcript that I'm thinking of, which I believe is March 2006 -- surely someone will correct me if I'm wrong -- is that --
THE COURT: Well, it happened several times before that.
MS. MAROLDY: Was that he was trying to advance that, or he was -- the transcript speaks for itself, Your Honor, obviously. But my understanding is he indicated that it was under consideration.
THE COURT: Well, I don't know about that. But he wouldn't do that.
And now here we are, and we have -- I guess what you're asking the Court, there are real problems, and it's not just time. We're finally getting this case in shape to do something with it, and now you ask for a halt. That's the real problem the Court has. I just, it's very hard to cope with.
Among other things, you're asking the Court to certify to the Court of Appeals a ruling respecting a trust, and we don't precisely know the delineation of the trust. We don't know exactly what property was involved. We don't know what has happened to that property. And we don't know exactly who is involved as a lineal descendent.
Now, I grant you, those are all merits questions. But at a given point, one would think the Court of Appeals would have a little trouble addressing the questions.
And furthermore, the Agency question you pose has not actually been a matter for a decision by the Court. It's a mixed question of law and fact. And the Court would want to know what happened to the property and what the arrangements were. And the Court has never figured that out exactly.
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Post by mdenney on Aug 25, 2007 10:53:55 GMT -5
How can the Court certify to the Court of Appeals a question that this Court has never decided?
MS. MAROLDY: Well, if I can take those in turn, Your Honor. I mean, the Court did decide on Plaintiffs' motion for partial summary judgment that these three Appropriations Acts that we're talking about gave rise to a trust. And I don't think that the delineation of the contours of the trust necessarily need to be defined further before that decision is reviewed.
I mean, the Court had before it when it made the decision in 2004 and reconsidered it and issued its opinion in December 2005 --
THE COURT: Well, you would agree, though, that the administrative practice of the Department of the Interior, after the Appropriations Acts were passed, eliminates that question. The trust question.
MS. MAROLDY: I'm not sure I understand the Court's point.
THE COURT: Well, then -- all right, let's just put it this way. We've never had discovery on the documents held by the Department of Interior after the passage or enactment of the Appropriations Acts. We just have had submissions, and terrifically voluminous submissions, by the government and by the Plaintiffs, by the communities who appeared either as an Intervenor or as amici, and by other intervenor groups. But we've never had discovery on that question.
And so, you know, it's a preliminary determination, but what do you do with that?
MS. MAROLDY: Well, our view is that it is a threshold determination, but it's --
THE COURT: The Court went as far as it could with the document it had. The Court figured out it has jurisdiction. An appropriate trust claim was made for jurisdiction. You can take the Fisher case; I mean, that's an obligation. Is a fair trust question made out? Jurisdictionally, yes. Then we go to whether it's an adequate claim.
MS. MAROLDY: Yes. And our view is that that question can and should be reviewed by the Appellate Court now, before the case proceeds.
THE COURT: Before everybody has a chance to get all the administrative documents before this Court.
MS. MAROLDY: Yes, Your Honor. I mean, the Court had before an adequate record to make a determination. It made a ruling that, as I said, forms the basis for its jurisdiction, and we think that that in itself is appropriate for interlocutory review.
THE COURT: What do you do with the agency question? When the Court, in its own mind, really hasn't decided that question. As you say, the Court ruled in your favor in Wolfchild IV. Well, in favor of the communities, the two communities who did not want to be included as parties.
MS. MAROLDY: Right. And my understanding of the 2007 order is that the basis for the Court's ruling focused mainly on the case or controversy point.
THE COURT: That's right. The addressability prong of the case or controversy doctrine. I never got to.
MS. MAROLDY: I understand that, Your Honor. However, in the August 22, 2006, order, the agency construct and the Court's view of that formed a basis for the --
THE COURT: That's right. But that was a preliminary ruling. There was enough of a showing that the property was remitted to the communities, and to their control, to issue the summons. And then they objected, and that's fine they objected. And then they raised the essential jurisdictional question, and the Court ruled in their favor and yours.
MS. MAROLDY: Yes.
THE COURT: That's where we are.
MS. MAROLDY: Understood, Your Honor. However, the August 22, 2006, order, in that order I would note two things. The first is that the prior rulings of the Court on the 1980 Act, and that it did not terminate the trust, and on its consequences, was a controlling question in that order, just as in the 2005 and 2004 orders. As is the Court's view of the Appropriations Acts, the Court's ruling that the Appropriations Acts gave rise to a trust.
And as far as the agency issue in particular, I would note that the Court's view of that issue formed in part the basis of the part of the order that allowed the intervention of the Lower Sioux.
So that's how we view the August 26, 2006, order. And we believe they should all go up together. And we certainly understand that with the April 2007 order, the Court's ruling was consistent with the United States' position on the issuance of summonses to the lower communities. So we are not seeking certification of that order.
THE COURT: And you want the Court to stay everything while you fuss with the Court of Appeals.
MS. MAROLDY: I hope we'll do more than fuss, Your Honor.
THE COURT: I'd say there's a substantial -- even if the Court were to certify the question, I think there's a substantial question whether the Court of Appeals would grant certification.
MS. MAROLDY: Well, that may be, Your Honor.
THE COURT: Would grant the petition. You have to petition them within 10 days. And I'd say there is a real question in this case.
MS. MAROLDY: Well, we would like that opportunity to present it to the Federal Circuit, Your Honor. And for the reasons I've given, I think a stay is appropriate while this is resolved.
THE COURT: Well, the Court has been around this post before, and to the Court's knowledge, a certification amendment has not been entered where you get beyond three months after the decision that's the subject of the certification motion.
MS. MAROLDY: Well, it was our understanding, Your Honor, especially since you posed the question to me at the January hearing, that this was something that the Court thought worth considering; that the interlocutory appeal was worth considering.
THE COURT: Well, I think it was. I really do think it was. And I thought so three and a half years ago, too. But we haven't gotten too far with the delineation of the trust since then.
MS. MAROLDY: I understand that, Your Honor, and I think that cuts both ways. I think, as I've said, I think it makes sense to have some of these threshold issues, to be able to present these threshold issues to the Appellate Court before all 22,000 parties hash out the remaining merits and factual issues in the case.
THE COURT: Thank you, Ms. Maroldy.
MS. MAROLDY: Thank you, Your Honor.
THE COURT: Mr. Kaardal.
MR. KAARDAL: Thank you, Your Honor. If I may return, just for a moment, on the joint status report, one issue.
Regarding your three questions -- what property is involved, what happened to the trust, what happened to the property, and who is a lineal descendent -- I think those were the questions prior to the significant change of circumstances that I describe in my preliminary statement.
Now I think more precisely the question is what trust corpus is involved, what happened to the trust corpus, and who is the lineal descendent. Basically, I think the solution here is that my clients have come to have their beneficial interests determined; and of course, prior to 1980, my clients' beneficial interest to certain property was commingled with reservation land. It was done in a careful way.
Whenever a trustee commingles property -- this is reflected in the Lower Sioux and Prairie Island Constitutions, how carefully it was done after 1980, and even after 1969 for the Shakopee Constitution, which is somewhat, we assert is an error.
There are post-1969 administrative actions indicating that they were trying to correct that error. And in the end, and then the answer to the questions are what property is involved, what trust corpus is involved. All the reservation land, because there's been commingling. What happened to the trust corpus? Well, we haven't been receiving anything. And we're at least entitled to those, we're entitled to the same per capita benefits as those lineal descendants who don't need to be here because they're receiving $22,000 a week from the Shakopee Mystic Lake Casino.
With respect to the motion for certification, we have outlined in the brief, a preliminary matter of the time when this wasn't raised in the initial brief. As so, as a result, we started from scratch. We never were able to respond to the material included in the reply brief. I will do so quickly here.
As Judge Posner noted in Wier v. Probst, if you read the statute literally, though doubt would have to be included that Judge Posner indicated that's not a reasonable reading. And so we need to allow the Court to be informed about the issues regarding that order and whether it's suitable for interlocutory appeal.
And we agree with Judge Posner's analysis, as Judge Baskir did, in the School case. But it still has to be quick on the heels of the order to be appealed. Our research indicated that Judge Baskir in about four months said that was enough. That much time even passed since the January 25 hearing. And so I think it's not timely.
Further, there's been a particular burden placed on the Plaintiffs' counsel and Plaintiffs because we went through the notice process, and there are a lot of costs related to that. And that is something I think that needs to be considered.
And then further, because the Intervenors have not been added, and they have new issues really related to Wolfchild I and Wolfchild II, it creates a significant due process problem. Because, as the Court indicated, it may adjust, modify its earlier rulings in light of the alternative standards for trust beneficiary status under the Appropriations Acts. The Court even mentioned the 1863 Act as a possibility.
And so there's quite a bit of work to do, even on Wolfchild I and II, which are the subject of the certification motion.
But I really want to focus on the merits. And those are the three elements, controlling questions. With respect to the Appropriations Acts, we have cited case law that indicates that with respect to archaic and historic statutes, the administrative history after the statute matters. And we believe that that 90 years of history that the Court has relied on is very important in understanding how the statutes were interpreted by the agency at that time. And we believe --
THE COURT: Well, you're basically talking about Wolfchild I and Wolfchild II.
MR. KAARDAL: That's correct.
THE COURT: Because the Court allowed, after Wolfchild I, the government to move for reconsideration. And the Court allowed that to happen because the government said we didn't put forth all the documents we had that related to the administrative practice. And the Court said fine, you've got a certain amount of time, and please do that. And it happened.
I mean, the Court is still troubled by the fact that we've never had discovery on this issue, and we don't know that we have all the documents on these matters.
MR. KAARDAL: That's right. And jumping ahead to tie in what you just said with the second question, interpretation of the 1980 Act. There still needs to be post-1980 Act if the United States is going to make a defense based on the interpretation of the 1980 Act, and an explication of the post-1980 Act activities.
And that relates to your question of what happened to the trust corpus and the property. Because as the Plaintiffs submitted to the Court materials found in 2006 regarding Department of Interior, Bruce Babbitt in 1995 directing Judge Pfister in the Department of Interior Administrative Law Judges to affirm the membership at Shakopee. And that standard itself that was used we assert was an inappropriate standard based loosely on the 1969 Shakopee Constitution itself as a breach.
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Post by mdenney on Aug 25, 2007 10:54:18 GMT -5
Now, all these are interesting subsidiary questions, but I don't think they need to be reached because the case is streamlined. I mean, if the Shakopee were here, if Prairie Island were here; the United States were presenting these defenses; yes, they'd have to be addressed. But this should go in the ordinary course of affairs. We're asking the Court to use ordinary power to surcharge the Defendant for trust mismanagement, and then to move on.
We only need those legal issues resolved that relate to that narrow question. And at the moment, we have the best damages theory going.f
Now, on the gaming revenue question, it's another law of general applicability. We've seen this argument before in the Indian Reorganization Act. And this Act, I would argue to the Court, was intended to help Native Americans, and not hurt them.
Going to the other arguments regarding the Appropriations Acts not being a controlling question, we do have piecemeal statutory interpretation. That's a phrase I came up with to distinguish it from piecemeal litigation. Piecemeal litigation is uneconomical, kind of a bouncing back and forth, usually related to questions going up to the Court of Appeals without a complete record. Because this would require the Court of Appeals to review a question that's not a pure question of law on interlocutory appeal, but rather, one on an incomplete record.
So one could imagine, you know, like you indicated you weren't going to grant the stay, that we would be litigating issues relating to the '88, '89, and '90 Appropriations Acts, also relating to the 1863 Act and subsequent Acts, while the Circuit Court was considering those same Acts. This would bounce up and down as far as piecemeal litigation, but also poses a problem with respect to piecemeal statutory interpretation.
My concern here is not the uneconomical aspect of it. My concern here is conflicting, inconsistent judgments. These are issues of some complexity. And for you to be reading, as you interpret these things fresh with new documents and new evidence while the Federal Circuit is issuing an order on an incomplete factual record could cause you to almost have to defer to something that may be obviously incorrect. And you would become almost the error-correcting Court.
It's better to have a full record.
THE COURT: That's not about to happen.
MR. KAARDAL: All right, good. Yes, all right.
THE COURT: The Court actually takes seriously the mandates of the Court of Appeals.
MR. KAARDAL: Yes, that's true. But if the Court knowingly, knowingly disagreed with something because it had additional information --
THE COURT: That's happened before, too.
MR. KAARDAL: Right, we still take it seriously, but nonetheless we need to recognize that.
THE COURT: I could cite you a couple of cases where I read a mandate one way, and then the Court of Appeals changed its mind. And I mean fine, they changed their mind.
MR. KAARDAL: Well, there may be a way to do that that's beyond my grade and office.
The government's, the next issue is that interlocutory appeal would not necessarily terminate the litigation, because what would be up on appeal would be the denial of the Rule 12 motion, the grant of the Rule 56 motion --
THE COURT: Now, the Court has jurisdiction, so that it's not a 12(b)(1) case. It's a 12(b)(6) case, and that's a different animal.
MR. KAARDAL: Right. My point being that with an incomplete factual record, the discovery --
THE COURT: That's why a factual record is important. It's not purely a jurisdictional matter.
MR. KAARDAL: Right. Then, with respect to the 1980 Act, we point out the government has not ever directly made this argument, sort of suggested if there's a trust.
Our concern is that, you know, until they really make that argument that it's a trust termination Act, how seriously should it be considered. Because that relates to admitting there's a trust and admitting there's a taking. It relates directly, in fact, to their notice argument. If they're saying the notice was published in the Federal Register that there's a trust termination Act, then why didn't we know it? Why aren't they asserting that straightforwardly?
The 1980 Act again is not a pure question of law; it requires review of the post-1980 proceedings. Again, it appears that the documents were, inadvertently perhaps, cherry-picked, because the subsequent proceedings --
THE COURT: We don't know that one way or the other.
MR. KAARDAL: I said perhaps inadvertently. And the Federal Circuit we believe would not even take the issue of the trust termination Act without a fuller and more complete record.
On agency, the Court covered that point. It appears that the communities, Prairie Island and Shakopee, won on that issue. We lost. We'd be in the position to appeal, not the United States.
On substantial grounds for a difference of opinion, we've addressed each of these. Our review of the case law suggests that the Court looks for -- this would be this Court and the Federal Circuit -- would look for intra-Circuit differences of opinion, look for inter-Circuit differences of opinion. Perhaps two Judges in this Court who have different but plausible interpretations on a line of cases. I even found a case where a legal treatise supported the point, and that was deemed sufficient for a difference of opinion.
But here, we believe on the three issues identified under the Appropriations Acts, the creation of the trust, we see a disagreement with White Mountain Apache and the other Supreme Court cases that said the word trust wasn't necessary in a statute that requires it.
THE COURT: Well, the word "trust" was certainly used in the subsequent Department of Interior documents, including especially the land assignment. So you don't have to worry about that point, Mr. Kaardal.
MR. KAARDAL: And the land --
THE COURT: That's why I say, jurisdiction under 12(b)(1) I think is established. You can go to the Fisher case en banc in the Court of Appeals, and you can rapidly figure out this is a 12(b)(6) problem.
MR. KAARDAL: I see. Additionally, the restatement of trust, the treaties in this case that supports our position was expiated and applied by the Court. And family does not mean errors. We think it's fatally premature to do the doubt analysis, if you will, because we have all these Intervenors who have arguments directly related to those provisions in the statute.
So the Court has acknowledged that there are subsequent proceedings to determine what the Appropriations Acts mean with respect to the trust beneficiary standard. And until you've made your decision, you can't analyze doubt. That would be unfair to the Court.
With respect to no specific money-mandating duties, we think it suffers the same flaw. But, as the Court said, it's not a jurisdictional problem.
There is an awkwardness here, sort of an ahistorical Catch-22 I mentioned in the brief, in that Plaintiffs assert that the government needs to confront the Intervenors' historical claims for trust beneficiary status, and that this is going to cause the factual record to develop, legal issues to be decided. And it's very important, we believe, that the United States -- I guess it's up to the United States -- to bend its legal arguments to historical record and incorporate facts with the arguments.
On the 1980 Act, our concern there is the government's defense, as the Court acknowledges, does not take into account actual words of the 1980 Act. So here it's just a freestanding argument that you have the words of the 1980 Act, and the United States' defense does not incorporate the actual words of the 1980 Act when it comes to interpreting the 1980 Act as a trust termination Act. And we believe that's a fatal flaw.
And as I said in several, at least two, arguments, they need verbs. They need action verbs. They need "canceled," "forfeit," "terminate." And it's not there, and there's no doubt that it's not there. I've read it 100 times, and those action verbs required to terminate a trust aren't there.
Again, on agency, we believe that's --
THE COURT: You don't need to address that question.
MR. KAARDAL: Okay, good. And then lastly, on materially advancing the ultimate determination of the litigation, I thought that I'd just do a little, quick application of your five criteria, quickly.
Delineation of the trust. We want to do it now, here. The United States' approach would result in a piecemeal litigation and piecemeal statutory interpretation.
With respect to the accounting, that would obviously be delayed if a stay accompanied the interlocutory appeal.
In determining the legal status of the current 1886 lands, we want to do it now. Their result would result in piecemeal litigation and piecemeal statutory interpretation.
With respect to explication and application of the trust beneficiary standard, we want to do it now. Their result would be piecemeal litigation and piecemeal statutory interpretation.
And then finally, with respect to the calculation of individual damages at trial, that would obviously be delayed.
So that's all I have, Your Honor.
THE COURT: Thank you. Mr. Killinger?
MR. KILLINGER: Nothing, Your Honor. Other than we haven't, the Intervenors, Group A or Group B, have not formally filed a resistance. But we do resist, and we do join in the Plaintiffs' resistance to the motion to certify.
THE COURT: All right, thank you, Mr. Killinger. Mr. Montana?
MR. MONTANA: I would concur on that, Your Honor, that we support Mr. Kaardal.
THE COURT: Thank you. Mr. Magnuson, do you have anything on behalf of the Lower Sioux?
MR. MAGNUSON: Your Honor, I do not. I have asked leave of the Court to submit, under seal, an affidavit in support of a motion to withdraw. There have been recent elections at the community, and I don't know the result of those. But I'm not authorized by the Board to take a position on anything at this hearing. I'm just listening. And I'll answer any questions you have.
THE COURT: All right. Well, when you get everything sorted out, if you would please let the Court know, that would be appreciated.
Is there any other Intervenor that wishes to be heard on the question of certification?
Ms. Maroldy, do you have a response?
MS. MAROLDY: Just briefly, Your Honor.
THE COURT: Please.
MS. MAROLDY: Your Honor, we note that simply because the communities, the Shakopee and the Prairie Island communities, are not in the case does not mean that the proceedings are going to be streamlined.
I think that the issues that we've already talked about today are still there. We have 21,000-plus people who claim that they are descendants of the intended beneficiaries of this Appropriations Act trust that the Court found existed, and they have different theories about who should be beneficiaries.
We have issues regarding which criteria should apply that need to be hashed out. Burdensome discovery faces everyone. And the --
THE COURT: This is a real parade of horrible, Ms. Maroldy. The Court doesn't quite view it as that draconian a prospect.
MS. MAROLDY: Well, Your Honor, we obviously disagree on that point. And I understand --
THE COURT: I hope you're not going to make the Court's life too difficult.
MS. MAROLDY: I've tried not to do that, Your Honor.
THE COURT: No, actually you've done very well, as I said before.
MS. MAROLDY: But I think there's a -- I apologize to the Court, I don't have the citation with me -- but there's the Jesse Short litigation that was pending in this Court for many years. It similarly involved a group of lineal descendants who made particular claims. And that litigation went on and on and on for a long time.
And I don't think the parade of horribles is outlandish. I think that what we have here are some threshold issues that could be reviewed at this point. We think it's appropriate to do so now. We have identified the persons who want to be in the case and have been admitted into the case as parties.
And the Court made particular rulings on the record, perhaps limited rulings, but very important threshold rulings. And we think those are appropriate for interlocutory review at this time.
THE COURT: Thank you. Well, the Court appreciates the patience of everyone involved, for a number of you coming to Washington to participate. That's always appreciated. And for others putting up with the conference telephonic arrangement.
And this case is finally getting itself in a posture where we can make some progress with it one way or the other. And I will say that what we'll try to do is deal with the assembled issues in a reasonable period of time, so that nobody is pending too long or waiting too long.
And among other things, we will try to deal with each of them. We'll try to clean up the remaining party issues, and if you will cooperate by making the filings that are requested by August 20, that will help. And then the Court will take into account the joint status report and the positions of the various parties, including especially the Intervenors -- and I must say, the Court appreciates the effort the Intervenors have made to organize themselves. And then we'll deal with the certification question and how that dovetails in with the progress of the case.
Is there anything further?All right. Thank you very much for your assistance and help. And I must say it's appreciated. And the Court will do its best. We're in adjournment.
(Whereupon, at 12:35 p.m., the hearing in the above-entitled matter was concluded.)
REPORTER'S CERTIFICATE
DOCKET NO.: 03-2684L
CASE TITLE: Wolfchild, et al, v. U.S.
HEARING DATE: August 6, 2007
LOCATION: Washington, D.C.
I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Court of Federal Claims.
Date: August 6, 2007
Mona McClellan
Official Reporter
Heritage Reporting Corporation
Suite 600
1220 L Street, N.W.
Washington, D.C. 20005-4018
-------------------------
END
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