Post by mdenney on Jun 24, 2011 18:14:41 GMT -5
THE WOLFCHILD PLAINTIFFS RESPONSE
TO THE COURT’S JUNE 3 2011 ORDER
Dated: June 23, 2011
Here the link to the PDF file below-
skydrive.live.com/?cid=aca2b7c7635ceba3#cid=ACA2B7C7635CEBA3&id=ACA2B7C7635CEBA3%211052
--------------------------------------------------------------------------------
Here is a copy to read for those that cannot open PDF files --
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
_____________________________________________
SHELDON PETER WOLFCHILD, et al., )
)
)
Plaintiffs, )
) Case No. 03-2684L
) and
v. ) Case No. 01-568L
) (consolidated)
THE UNITED STATES OF AMERICA, )
Defendant. )
____________________________________________ )
THE WOLFCHILD PLAINTIFFS’ RESPONSE
TO THE COURT’S JUNE 3, 2011 ORDER
Erick G. Kaardal
William F. Mohrman
Mohrman & Kaardal, P.A.
33 South Sixth Street
Suite 4100
Minneapolis, Minnesota 55402
Attorneys for Wolfchild Plaintiffs
Dated: June 23, 2011
1
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 1 of 6
The Wolfchild Plaintiffs submit their Supplemental Brief answering the three questions set forth in the Court’s June 3, 2011 Order.
Question #1: Do 25 U.S.C. §§ 1401-08 apply to a money judgment that is entered and subject to payment under 28 U.S.C. § 2517 and 31 U.S.C. § 1304?
Answer: No. 25 U.S.C. § 1401 does not apply to the Wolfchild plaintiffs’ case for two reasons.
First, 25 USC § 1401 does not apply because the Court’s forthcoming final judgment will be in favor of individuals – not in favor of a group. 25 USC § 1401 does not apply to judgments entered in favor of individual Indian class beneficiaries as demonstrated in Short v. United States, 12 Cl.Ct. 36 (1987). 25 USC § 1401 does not apply to judgments in favor of such individuals because the statute’s application is specifically limited to judgments issued “in favor of any Indian tribe, band, group, pueblo or community”:
(a) Use and distribution
Notwithstanding any other law, all use or distribution of funds
appropriated in satisfaction of a judgment of the Indian Claims
Commission or the United States Court of Federal Claims in favor of
any Indian tribe, band, group, pueblo, or community (hereinafter
referred to as "Indian tribe"), together with any investment income
earned thereon, after payment of attorney fees and litigation
expenses, shall be made pursuant to the provisions of this chapter.
(emphasis added.) It is clear from the plain language of §1401 and its clear purpose that §1401 only applies if the party plaintiff is an entity and not
2
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 2 of 6
specifically named individuals. It seems clear that Congress’ concern was that if a money judgment was entered against the United States in favor of, for instance, an Indian tribe and the money was supposed to be distributed to the individual members of the tribe, Congress was concerned that if the gross amount of the judgment were paid to the tribe the individual members of the tribe would not ultimately receive each individual’s share of the money judgment.
This analysis is confirmed in Short which held that 25 USC § 1401 did not apply because the judgment was issued in favor of individual Indian class beneficiaries.
The United States’ brief harmonized the inapplicability of 25 USC § 1401 in Short with 157 cases where 25 USC § 1401 applied by stating Short was a case with individual plaintiffs. So, the applicability of 25 USC § 1401 turns on whether the judgment is in favor of individual plaintiffs or a group plaintiff. The effort in the United States’ brief to establish that the applicability of 25 USC § 1401 turns on the applicability of Indian Tucker Act jurisdiction, 28 U.S.C. § 1505, is unavailing. 25 USC § 1401 does not even mention the Indian Tucker Act; instead, it distinguishes between judgments entered in favor of individual plaintiffs (does not apply) and judgment entered in favor of a group or tribal plaintiff (does apply). The best way to 3
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 3 of 6
explain the non-applicability of 25 U.S.C. § 1401 in Short is the judgment was entered on behalf of individual plaintiffs.
Second, 25 USC § 1401 does not apply because no separate, specific appropriation has been enacted satisfying a CFC judgment in the Wolfchild Plaintiffs’ favor. 25 U.S.C. § 1401 does not apply until Congress has actually appropriated funds to pay a COFC judgment separate and apart from funding via 28 U.S.C. § 2517 and 31 U.S.C. § 1304. So, the government’s argument is based on a contingency – that Congress would actually enact, in the future, a specific claims distribution act for the 1886 claimants someday to satisfy a COFC judgment of less than $1,000,000. It is possible, but it may not happen. Thus, the government’s argument is premature until such a Congressional Act is enacted.
Question #2: If Chapter 16 of Title 25 does not apply to such a money judgment, can and should a distribution plan nonetheless follow and reflect the plan provisions set out in Chapter 16?
Answer: No. If Chapter 16 of Title 25 does not apply, under Short v. United States, 207 Ct.Cl. 964 (1975), the determination of the individual class beneficiaries remains an adversarial proceeding. The United States brief agrees:
[T]he government does not have a role in distribution of a money judgment outside of the requirements of the Act [25 USC § 1401]. Indeed, in that circumstance the onus would be on the Plaintiffs to come before the Court and prosecute their claims. Short v. United States, 207 Ct.Cl. 964 (1975) (“The Plaintiffs must prove their own
4
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 4 of 6
claims and the Government is not required to make such proof for them and this court is without authority to require the Government to prosecute the claims for them.”). Indeed, to the extent there is a distribution of funds of a money judgment before this Court, it remains an adversarial proceeding. Id. Therefore, eligibility standards and entitlement determinations are the burden of the plaintiffs.
Br. at 12.
Under these circumstances, the Wolfchild plaintiffs respectfully request the Court to follow a schedule to enter final judgment similar to the one that follows:
Wolfchild Plaintiffs’ Proposal:
1981 Trust Fund Claim
1.
The Court enter summary judgment for all named Plaintiff claimants of lineal descent to persons on 1886-1889 censuses and thus entitled to a portion of 1981 trust fund claim.
2.
The Court enters partial final judgment (liability, damages and specific claimants listed) as to 1981 trust fund claim.
Distribution Plan
The Court, in addition to issuing the partial final judgment, would issue an order directing the government to pay a check to Mohrman & Kaardal which would be deposited in the Mohrman & Kaardal trust account for distribution within 150 days to the persons entitled to judgment in the partial final judgment. Morhman & Kaardal will report to the Court regarding the status of the distribution and immediately contact the Court with issues that arise regarding that distribution (e.g., deceased claimants; no forwarding address to complete the distribution). The firm will also inform the Court upon the completion of the distribution.
1863 Acts Claims 5
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 5 of 6
6
After steps for 1981 trust fund claim are completed, the case proceeds to final judgment on 1863 Acts claims to be entered by end of August, 2011.
Question #3: If Chapter 16 of Title 25 does apply to such a money judgment, what is the court’s role in ensuring that the distribution plan accords with the judgment that is entered?
Answer: If the Court issues judgment in favor of the individual Indian class beneficiaries, Chapter 16 of Title 25 does not apply. (See Answer to Question No. 1.) If the Court enters a judgment in favor of a group or tribal plaintiff causing Chapter 16 of Title 25 to apply, the Wolfchild plaintiffs would agree that the Court’s role would be more limited. However, without the final judgment issued by the Court in hand, any further response on this question would be speculative.
Dated: June 23, 2011
MOHRMAN & KAARDAL, P.A.
/s/ Erick G. Kaardal
Erick G. Kaardal
William F. Mohrman
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Attorneys for Wolfchild Plaintiffs
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 6 of 6
TO THE COURT’S JUNE 3 2011 ORDER
Dated: June 23, 2011
Here the link to the PDF file below-
skydrive.live.com/?cid=aca2b7c7635ceba3#cid=ACA2B7C7635CEBA3&id=ACA2B7C7635CEBA3%211052
--------------------------------------------------------------------------------
Here is a copy to read for those that cannot open PDF files --
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
_____________________________________________
SHELDON PETER WOLFCHILD, et al., )
)
)
Plaintiffs, )
) Case No. 03-2684L
) and
v. ) Case No. 01-568L
) (consolidated)
THE UNITED STATES OF AMERICA, )
Defendant. )
____________________________________________ )
THE WOLFCHILD PLAINTIFFS’ RESPONSE
TO THE COURT’S JUNE 3, 2011 ORDER
Erick G. Kaardal
William F. Mohrman
Mohrman & Kaardal, P.A.
33 South Sixth Street
Suite 4100
Minneapolis, Minnesota 55402
Attorneys for Wolfchild Plaintiffs
Dated: June 23, 2011
1
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 1 of 6
The Wolfchild Plaintiffs submit their Supplemental Brief answering the three questions set forth in the Court’s June 3, 2011 Order.
Question #1: Do 25 U.S.C. §§ 1401-08 apply to a money judgment that is entered and subject to payment under 28 U.S.C. § 2517 and 31 U.S.C. § 1304?
Answer: No. 25 U.S.C. § 1401 does not apply to the Wolfchild plaintiffs’ case for two reasons.
First, 25 USC § 1401 does not apply because the Court’s forthcoming final judgment will be in favor of individuals – not in favor of a group. 25 USC § 1401 does not apply to judgments entered in favor of individual Indian class beneficiaries as demonstrated in Short v. United States, 12 Cl.Ct. 36 (1987). 25 USC § 1401 does not apply to judgments in favor of such individuals because the statute’s application is specifically limited to judgments issued “in favor of any Indian tribe, band, group, pueblo or community”:
(a) Use and distribution
Notwithstanding any other law, all use or distribution of funds
appropriated in satisfaction of a judgment of the Indian Claims
Commission or the United States Court of Federal Claims in favor of
any Indian tribe, band, group, pueblo, or community (hereinafter
referred to as "Indian tribe"), together with any investment income
earned thereon, after payment of attorney fees and litigation
expenses, shall be made pursuant to the provisions of this chapter.
(emphasis added.) It is clear from the plain language of §1401 and its clear purpose that §1401 only applies if the party plaintiff is an entity and not
2
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 2 of 6
specifically named individuals. It seems clear that Congress’ concern was that if a money judgment was entered against the United States in favor of, for instance, an Indian tribe and the money was supposed to be distributed to the individual members of the tribe, Congress was concerned that if the gross amount of the judgment were paid to the tribe the individual members of the tribe would not ultimately receive each individual’s share of the money judgment.
This analysis is confirmed in Short which held that 25 USC § 1401 did not apply because the judgment was issued in favor of individual Indian class beneficiaries.
The United States’ brief harmonized the inapplicability of 25 USC § 1401 in Short with 157 cases where 25 USC § 1401 applied by stating Short was a case with individual plaintiffs. So, the applicability of 25 USC § 1401 turns on whether the judgment is in favor of individual plaintiffs or a group plaintiff. The effort in the United States’ brief to establish that the applicability of 25 USC § 1401 turns on the applicability of Indian Tucker Act jurisdiction, 28 U.S.C. § 1505, is unavailing. 25 USC § 1401 does not even mention the Indian Tucker Act; instead, it distinguishes between judgments entered in favor of individual plaintiffs (does not apply) and judgment entered in favor of a group or tribal plaintiff (does apply). The best way to 3
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 3 of 6
explain the non-applicability of 25 U.S.C. § 1401 in Short is the judgment was entered on behalf of individual plaintiffs.
Second, 25 USC § 1401 does not apply because no separate, specific appropriation has been enacted satisfying a CFC judgment in the Wolfchild Plaintiffs’ favor. 25 U.S.C. § 1401 does not apply until Congress has actually appropriated funds to pay a COFC judgment separate and apart from funding via 28 U.S.C. § 2517 and 31 U.S.C. § 1304. So, the government’s argument is based on a contingency – that Congress would actually enact, in the future, a specific claims distribution act for the 1886 claimants someday to satisfy a COFC judgment of less than $1,000,000. It is possible, but it may not happen. Thus, the government’s argument is premature until such a Congressional Act is enacted.
Question #2: If Chapter 16 of Title 25 does not apply to such a money judgment, can and should a distribution plan nonetheless follow and reflect the plan provisions set out in Chapter 16?
Answer: No. If Chapter 16 of Title 25 does not apply, under Short v. United States, 207 Ct.Cl. 964 (1975), the determination of the individual class beneficiaries remains an adversarial proceeding. The United States brief agrees:
[T]he government does not have a role in distribution of a money judgment outside of the requirements of the Act [25 USC § 1401]. Indeed, in that circumstance the onus would be on the Plaintiffs to come before the Court and prosecute their claims. Short v. United States, 207 Ct.Cl. 964 (1975) (“The Plaintiffs must prove their own
4
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 4 of 6
claims and the Government is not required to make such proof for them and this court is without authority to require the Government to prosecute the claims for them.”). Indeed, to the extent there is a distribution of funds of a money judgment before this Court, it remains an adversarial proceeding. Id. Therefore, eligibility standards and entitlement determinations are the burden of the plaintiffs.
Br. at 12.
Under these circumstances, the Wolfchild plaintiffs respectfully request the Court to follow a schedule to enter final judgment similar to the one that follows:
Wolfchild Plaintiffs’ Proposal:
1981 Trust Fund Claim
1.
The Court enter summary judgment for all named Plaintiff claimants of lineal descent to persons on 1886-1889 censuses and thus entitled to a portion of 1981 trust fund claim.
2.
The Court enters partial final judgment (liability, damages and specific claimants listed) as to 1981 trust fund claim.
Distribution Plan
The Court, in addition to issuing the partial final judgment, would issue an order directing the government to pay a check to Mohrman & Kaardal which would be deposited in the Mohrman & Kaardal trust account for distribution within 150 days to the persons entitled to judgment in the partial final judgment. Morhman & Kaardal will report to the Court regarding the status of the distribution and immediately contact the Court with issues that arise regarding that distribution (e.g., deceased claimants; no forwarding address to complete the distribution). The firm will also inform the Court upon the completion of the distribution.
1863 Acts Claims 5
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 5 of 6
6
After steps for 1981 trust fund claim are completed, the case proceeds to final judgment on 1863 Acts claims to be entered by end of August, 2011.
Question #3: If Chapter 16 of Title 25 does apply to such a money judgment, what is the court’s role in ensuring that the distribution plan accords with the judgment that is entered?
Answer: If the Court issues judgment in favor of the individual Indian class beneficiaries, Chapter 16 of Title 25 does not apply. (See Answer to Question No. 1.) If the Court enters a judgment in favor of a group or tribal plaintiff causing Chapter 16 of Title 25 to apply, the Wolfchild plaintiffs would agree that the Court’s role would be more limited. However, without the final judgment issued by the Court in hand, any further response on this question would be speculative.
Dated: June 23, 2011
MOHRMAN & KAARDAL, P.A.
/s/ Erick G. Kaardal
Erick G. Kaardal
William F. Mohrman
33 South Sixth Street, Suite 4100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Attorneys for Wolfchild Plaintiffs
Case 1:03-cv-02684-CFL Document 1087 Filed 06/24/11 Page 6 of 6