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Post by denney on Aug 3, 2006 23:58:49 GMT -5
UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, ) et al., ) ) Plaintiffs, ) ) v. ) Docket No.: 03-2684L ) UNITED STATES, ) ) Defendant. )
Pages: 1 through 147
Place: Washington, D.C.
Date: July 18, 2006 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, ) ET AL, ) ) Plaintiffs, ) ) v. ) Docket No.: 03-2684L ) UNITED STATES, ) ) Defendant. )
Courtroom 4, Room 501 National Courts Building 717 Madison Place NW Washington, D.C.
Tuesday, July 18, 2006
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 WILLIAM F. MOHRMAN, Esquire Mohrman & Kaardal, P.A. 33 South Sixth Street Minneapolis, Minnesota 55402 (612) 341-1074
Also for the Plaintiffs:
DOUG KETTERING, Esquire Kettering Law Office 714 Douglas Street Yankton, South Dakota 57078 (605) 665-1000 APPEARANCES: (Cont'd.)
Also for the Plaintiffs:
SAM S. KILLINGER, Esquire Rantings, Nieland, Probasco, Killinger, Ellwanger, Jacobs and Mohrhoauser 522 Fourth Street, Suite 300 Sioux City, Iowa 51101 (712) 277-2373
For the Defendant:
BENJAMIN LONGSTRETH, Esquire U.S. Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. Washington, D.C. 20530 (202) 514-4353
For the Intervenor, Mozak:
KELLY STRICHERZ, Esquire P.O. Box 187 Vermillion, South Dakota 57069 (405) 624-3333
For the Intervenor, Lower Sioux Community:
ERIC J. MAGNUSON, Esquire Rider Bennett 33 South Sixth Street, Suite 4900 Minneapolis, Minnesota 55402 (612) 340-7928
For the Intervenor, Loyal 394, Krohn Family Group and Abrahamson Group:
RANDY THOMPSON, Esquire Nolan, MacGregor, Thompson & Leighton 710 Lawson Commons 390 St. Peter Street Saint Paul, Minnesota 55102 (651) 227-6661 APPEARANCES: (Cont'd.)
For the Intervenor, Winona Enyard:
SAM S. KILLINGER, Esquire Rantings, Nieland, Probasco, Killinger, Ellwanger, Jacobs and Mohrhoauser 522 Fourth Street, Suite 300 Sioux City, Iowa 51101 (712) 277-2373
APPEARANCES Via Telephone:
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Post by denney on Aug 3, 2006 23:59:48 GMT -5
For the Intervenor, Renaud Group:
JAMES BLAIR, Esquire BARRY HOGAN, Esquire Renaud, Cook, Drury, Mesaros, P.A. One North Central, Suite 900 Phoenix, Arizona 85004 (602) 881-3405
For the Intervenor, Stephens Group:
JACK PIERCE, Esquire The Pierce Law Firm, P.A. 6040 Earle Brown Drive, Suite 420 Minneapolis, Minnesota 55430 (763) 566-7200
For the Intervenor, Felix Family:
FRANCES FELIX P.O. Box 141232 Minneapolis, Minnesota 55414 (612) 845-3434
For the Intervenor, Walker Does:
ELIZABETH WALKER, Esquire Walker Law Firm, LLC 127 South Fairfax Street, Suite 126 Alexandria, Virginia 22314 (703) 838-6284 APPEARANCES: (Cont'd.)
For the Intervenor, Zephier Group:
ROBIN ZEPHIER, Esquire Abourzk Law Firm, P.C. 2020 West Omaha Street Rapid City, South Dakota 57709 (405) 342-0097
For the Intervenor, Burley Group:
LARRY LEVENTHAL, Esquire DAVID GARELICK, Esquire Larry Leventhal & Associates 319 Ramsey Street Saint Paul, Minnesota 55102 (612) 333-5747
For the Intervenor, Moose Group:
WOOD FOSTER, Esquire Siegel, Brill, Greupner, Duffy & Foster, P.A. 100 Washington Avenue South, Suite 1300 Minneapolis, Minnesota 55401 (612) 337-6100
For the Intervenor, Rooney Group:
BERNARD J. ROONEY, Esquire 10395 Otto Road Amherst, Wisconsin 54406 (715) 824-5429
For the Intervenors, Saul Group, Vassar Group, Oldman Group, Taylor Group and Ferris Group:
GARRETT HORN, Esquire Horn Law Office P.O. Box 886 Yankton, South Dakota 57078 (605) 260-0623 APPEARANCES: (Cont'd.)
For the Intervenors, Cournoyer, Robinette, Kimbell, Vassar and Wanna Groups:
CREIGHTON THURMAN, Esquire P.O. Box 897 Yankton, South Dakota 57079 (605) 260-0623
For the Intervenor, Dumarce Group:
GARY MONTANA, Esquire Montana and Associates 12923 North Prairie Road Osseo, Wisconsin 54758 (715) 597-6464
Also for the Intervenor, Dumarce Group
RON VOLESKY, Esquire Volesky Law Firm 356 Dakota Avenue South Huron, South Dakota 57350 (605) 352-2126
For the Intervenor, Garreau Group:
NICOLE EMERSON, Esquire Lynn, Jackson, Shultz & LeBrun, P.C. P.O. Box 1920 Sioux Falls, South Dakota 57101 (605) 332-5999
For the Intervenor, Rocque Descendants:
SCOTT JOHNSON, Esquire The Johnson Law Group 1500 Wells Fargo Plaza Minneapolis, Minnesota 55431 (952) 525-1224
For the Intervenors, Prescott and Goodthunder:
STEVEN GASKINS, Esquire Flynn, Gaskins & Bennett, L.L.P. 333 South seventh Street, Suite 2900 Minneapolis, Minnesota 55402 (612) 333-5234 APPEARANCES: (Cont'd.)
Also Present:
WILLIAM SHAPIRO, Esquire U.S. Department of Justice Environmental & Natural Resources Division 501 I Street, Suite 9-700 Sacramento, California 95814 (916) 930-2207
GORDON CROSBY, Esquire 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. The case pending before the Court this morning is Sheldon Peters Wolfchild and others v. United States, No. 03-2684L. Because there are going to be a number of people on a conference line as well as the fact that there are a number of people in the courtroom, we're going to ask that everyone be patient today. We'll take our time. We'll have an orderly session. We'll make sure that everyone has a chance to be heard at the appropriate time, and if people would please just not speak over each other or interrupt, that would be appreciated. Now, for the record would counsel for Plaintiffs please introduce himself? MR. KAARDAL: Erick Kaardal for the Plaintiffs. MR. MOHRMAN: And William Mohrman for the Plaintiffs and two co-counsel. THE COURT: Welcome. MR. KETTERING: Doug Kettering for the Plaintiffs. THE COURT: Yes. MR. KILLINGER: Also Sam Killinger. I'm co-counsel, but I'm also on a motion to intervene. THE COURT: All right. Welcome. Now, could counsel for Defendant, Mr. Longstreth, if you would introduce yourself for the record? MR. LONGSTRETH: Yes, Benjamin Longstreth for the United States. THE COURT: Welcome. Now, if we could start with the counsel for the Intervenors for the record for those who are present, and if you would start at this portion of the table and work your way around, please? MR. MAGNUSON: Thank you, Your Honor. Good morning. Eric Magnuson of the Rider Bennett firm representing the Intervenor Lower Sioux Community. THE COURT: Welcome, Mr. Magnuson MR. MAGNUSON: Thank you. MR. THOMPSON: Randy Thompson, Your Honor, representing the Intervenors known as the Loyal 394 as well as the Krohn Family Group. THE COURT: All right. Thank you. MR. STRICHERZ: Kelly Stricherz here for the Mozak Intervenors. THE COURT: Let me just make a note. Thank you, Ms. Stricherz. MR. MONTANA: Gary Montana for the Intervenors, approximately 2,000. THE COURT: And the lead Intervenor? Let me just look at my list, Mr. Montana. MR. MONTANA: Mr. Volesky is with me as co-counsel. THE COURT: All right. Just a moment. Here we are. I have that as the Dumarce Group. Is that appropriate? MR. MONTANA: Yes, Your Honor. That's correct. THE COURT: Yes? MR. KILLINGER: Your Honor? THE COURT: Please. MR. KILLINGER: I'll introduce myself again, but I represent Winona Enyard, et. al., Intervenors also. THE COURT: Enyard? And just would you remind me again, sir, what your name is? MR. KILLINGER: Killinger, Sam Killinger. THE COURT: Killinger. All right. Just a moment. Let me make a note, Mr. Thompson. Let me just find -- I can see right now. What is the first named party in your group, Mr. Thompson? MR. THOMPSON: It would be Abrahamson. THE COURT: Abrahamson. All right. We'll call it the Abrahamson Group. MR. THOMPSON: That's fine, Your Honor. THE COURT: Now, do we have people on the line? (Pause.) THE COURT: Now, I wonder if we could just go down the list of names of people who are likely to be on the call. Is Mr. Pierce on the call? Mr. Pierce? No? Ms. Felix? Ms. Walker? Let's try again. Is Mr. Pierce on the call? All right. Mr. Blair? Now, can those of you on the call hear appropriately? MS. WALKER: I can. This is Liz Walker. THE COURT: Just a moment. Let's adjust the volume a little bit. You can now? MS. WALKER: Yes. THE COURT: All right. Ms. Walker? MS. WALKER: Yes. THE COURT: All right. I have you down as representing a group of anonymous applicants for intervention. Is that correct? MS. WALKER: Yes, that's right. THE COURT: All right. If you don't mind, I'm going to refer to that group as the Walker Does. MS. WALKER: Okay. THE COURT: Is that satisfactory? MS. WALKER: That's fine. THE COURT: Mr. Pierce, are you on the line? MR. PIERCE: I am, Your Honor. THE COURT: Now, Mr. Pierce, I have you for seven groups; the first of which is the Stephens Group. Is that correct? MR. PIERCE: That is correct, Your Honor. THE COURT: All right. Thank you. Now, is Ms. Felix on the line? MS. FELIX: Yes. Yes, I'm here. THE COURT: All right. Now, in your case I take it you are not a lawyer who is admitted to this Court. Is that correct? MS. FELIX: That's correct, Your Honor. THE COURT: But you are representing your family. Is that correct? MS. FELIX: Yes. I'm not exactly sure if I can legally represent them without asking or going through them for any decisions, but they have approved to have me talk. THE COURT: All right. Now, I will say for the record that there's an exception to the rule this Court has that entities must be represented by counsel, and that exception obviously provides that a person may represent himself or herself, and a person who is not a lawyer may also represent family members. MS. FELIX: All right. THE COURT: So I am going to allow you, Ms. Felix, to participate. MS. FELIX: Thank you. I appreciate that. THE COURT: All right. Thank you. Now, I'm going to mispronounce this name. Is it Ms. or Mr. Zephier? MR. ZEPHIER: Hello, Your Honor. This is Mr. Zephier. THE COURT: All right. MR. ZEPHIER: You had it correct. THE COURT: All right. And I have you down for the Zephier Group. Is that correct? MR. ZEPHIER: That's correct, Your Honor. THE COURT: Now, is Mr. Garelick or Mr. Leventhal on the line? MR. LEVENTHAL: Yes, we both are. THE COURT: All right. Which one of you would be lead counsel? We must have one designated lead counsel. MR. LEVENTHAL: I'll be lead counsel, Your Honor. This is Larry Leventhal. THE COURT: Mr. Leventhal. All right. Mr. Leventhal, I have you for the Burley Group? MR. LEVENTHAL: Yes. THE COURT: Is Mr. Rooney on the line? MR. ROONEY: Yes, Your Honor, I am. THE COURT: Are you admitted as counsel to this Court's bar? MR. ROONEY: No, I am not. I'm admitted in the State of New York. THE COURT: All right. Will you apply for admission to the bar here? MR. ROONEY: I haven't as yet. THE COURT: Would you, please? MR. ROONEY: Yes, I will. THE COURT: I have you as representing the Rooney Group. Is that correct? MR. ROONEY: Yes, Your Honor. THE COURT: All right. Thank you. Now, Mr. Johnson? MR. JOHNSON: Yes, Your Honor. Scott Johnson. THE COURT: All right. I have you as representing, and I'm going to mispronounce it, and I apologize, the Rocque and Taylor Descendants. MR. JOHNSON: Yes. We ask to be amended as Rocque, pronounced Rock, Taylor and Prescott Descendants. THE COURT: Well, let's just pick one. MR. JOHNSON: Okay. Rocque. THE COURT: All right. Rocque, R-O-C-Q-U-E, decedents. Now, Mr. Horn? MR. HORN: Yes, Your Honor. THE COURT: Mr. Horn, I have you as representing the Saul Group. Is that correct? MR. HORN: Your Honor, actually I am lead counsel on six groups. THE COURT: Yes. MR. HORN: But yes, I represent the Saul group. THE COURT: Now, are you lead counsel as well for the Cournoyer, Robinette, Kimbell, Vassar and Wanna Groups? MR. HORN: Your Honor, some of those are represented by Creighton Thurman who I believe is also on the line. THE COURT: All right. MR. THURMAN: I'm here, Your Honor. THE COURT: All right. Which groups are you lead counsel for, Mr. Thurman? MR. THURMAN: I believe that you have the ones that you listed off as correct, Your Honor. THE COURT: Well, you must choose between one of the two of you per group. Just tell us which group. MR. HORN: Your Honor, this is Garrett Horn. I represent the Troudell Family, the Deborah Saul Family. THE COURT: Right. But I have those as the Saul Group. MR. HORN: The Saul Group, the Ferris Group. THE COURT: Well, I do not have such a group. Let's go to Cournoyer. Which of you is taking the lead for the Cournoyer Group? MR. THURMAN: This is Creighton Thurman, and I am, Your Honor. THE COURT: All right. Which of you is taking the lead for the Robinette Group? MR. THURMAN: Again, this is Creighton Thurman, and I am, Your Honor. THE COURT: Which for the Kimbell Group? MR. THURMAN: That would be me, Your Honor, Creighton Thurman. THE COURT: Which for the Vassar Group, Laura Vassar and others? MR. HORN: Your Honor, that is mine. This is Garrett Horn. THE COURT: And which for the Wanna Group headed by Charlene Wanna? MR. THURMAN: That would be mine, Your Honor, Creighton Thurman. THE COURT: All right. Thank you very much for sorting that out. Mr. Blair, are you on the line? MR. BLAIR: Yes, I'm here, Your Honor. THE COURT: I have you as taking the lead for the Renaud Group that has some Doe Plaintiffs. Is that correct? MR. BLAIR: The Renaud Group is our group, Your Honor, and Barry Hogan should be there in the courtroom. MR. MOHRMAN: Yes. THE COURT: Now, Ms. Emerson, are you on the line? MS. EMERSON: Yes, Your Honor. THE COURT: And I have you down for the Garreau Group. Is that correct? MS. EMERSON: That is correct. THE COURT: Is Mr. William Shapiro from the Department of Justice on the line? MR. SHAPIRO: I am, Your Honor. THE COURT: Now, you're representing the Department of Justice and the Department of Interior actually in the Cermak case. Is that correct? MR. SHAPIRO: That's correct, Your Honor. THE COURT: All right. Thank you. Now, Mr. Gaskins, are you on the line? MR. GASKINS: Yes, Your Honor, I am. THE COURT: And, Mr. Gaskins, the Court has you down for the Prescott and Goodthunder proposed amicus. Is that correct? MR. GASKINS: That is correct, Your Honor. THE COURT: I think that's it. Is there anyone on the line who has not been identified or spoken? MR. FOSTER: Yes, Your Honor. THE COURT: And you are? MR. FOSTER: I'm Wood Foster from Minneapolis. THE COURT: And, Mr. Foster, who do you represent? MR. FOSTER: I have four complaints IN intervention that were filed, and they appear to be on the docket. I represent the John Moose group. THE COURT: How do you spell that? MR. FOSTER: M-O-O-S-E. I represents decedents of Joseph Graham. I represent certain Trudell descendants. I hear that there is someone else who had Trudell descendants, and Wells/Paypay Group descended from Clifford Wells and Mary Paypay. THE COURT: Now, Mr. Foster, I take it you say M-O-O-S-E is pronounced mose? MR. FOSTER: Moose. THE COURT: Moose. Let's just refer to this group as the Moose Group for the moment. MR. FOSTER: That would be fine. THE COURT: All right. Thank you. Is there anyone else? MR. HORN: Your Honor, may I; this is Garrett Horn again. THE COURT: Yes. MR. HORN: I do have four other complaints in intervention that were timely filed with the Court. THE COURT: And those are? MR. HORN: There's the Oldman group. THE COURT: How do you spell that? MR. HORN: O-L-D-M-A-N. THE COURT: Yes. MR. HORN: The Taylor Group, T-A-Y-L-O-R. THE COURT: Yes. MR. HORN: Ferris Group, F-E-R-R-I-S, and the Trudell Group. THE COURT: All right. We'll have to sort that out in due course. Now, is there anyone else on the line who hasn't been identified or who hasn't spoken? THE COURT: All right. Thank you. Now, as far as the Court is concerned we have five sets of issues. The first is a proposed amendment to the complaint. We had a third amendment to the complaint. Now, that third amendment as the Court would recall it identified 4,300 Plaintiffs or approximately that number and a proposed revision of that third amended complaint has just been filed, and I take it the number of individual Plaintiffs is up to 6,500. Is that correct, Mr. Kaardal? MR. KAARDAL: That's correct, Your Honor. THE COURT: Now, what I propose to do is to address that as the first issue. The second issue the Court would propose to address is the Cermak case and the relationship if any of that case to this one, and in that respect the Court would propose to hear especially from Mr. Shapiro. Now, is counsel in that case, the Cermak case that has been transferred from the U.S. Court of Appeals for the Eight Circuit, is counsel for Mr. Cermak and the plaintiffs in that case on the line or here? MR. PIERCE: This is Jack Pierce, Your Honor, and I represent the Cermaks in this matter. I do not believe Mr. Crosby is on the line or present in the Court there. THE COURT: All right. Well, it's on our list. Mr. Crosby is absent. All right. Now, as the third set of issues, those related to intervention. As the fourth set of issues, those related to summonses to the communities, and that would be the two communities other than the Lower Sioux. Now, as the fifth set of issues, the request by Mr. Gaskins' clients to file an amicus brief. Does anyone have any additional sets of issues that they propose we ought to address here today? Mr. Kaardal? MR. KAARDAL: No, Your Honor. Those were the ones that we had on our list. THE COURT: All right. Thank you. The entire purpose of these proceedings and the various motions, many motions leading up to this hearing today is to sort out the parties to the case in an orderly fashion. All right. Now, if we could proceed first to the amendment to the complaint. Mr. Kaardal, could you speak to that, please? MR. KAARDAL: Yes, Your Honor. May it please the Court. We move to amend the complaint, and the new complaint that we propose, the revised third amended complaint, has no new claims, has no new facts alleged. It's virtually the same complaint, but we've added Plaintiffs that have gone through the process that we indicated in the previous briefs regarding Dr. Buttes and so forth, and we put them on the caption. We believe that this is a way to facilitate the case being completed. We represent lineal descendants, persons of the May 20, 1886, census inclusive of the 1889 supplement, and we've now concluded our process, and we're done. The revised third amended complaint has over 6,500 Plaintiffs approximately. I think 211 are John Doe Plaintiffs, and we'd hope that the Court would grant the motion to amend, and from this point on we're not accepting any new documents or clients. We're done. THE COURT: Now, Mr. Kaardal, precisely how many Plaintiffs do you have? You say over 6,500. I take it they're all listed. MR. KAARDAL: They're all listed one by one, and I didn't count them, Your Honor. They're all listed one by one. THE COURT: All right. We will have to count them, and we will have to check them, but we will do that. Now, this is a case that arises under the Indian Tucker Act as well as the Tucker Act and as a result the case has been filed on behalf of a group, that is the lineal descendants of the Loyal Mdewakanton. And so one of the purposes of the exercise is to make sure that we have an identification as you've described of those people who are presumptively descendants of the Loyal Mdewakanton, and we're going to be examining it with that in mind. We are also not going to be making any findings at this time as to whether any particular person was or was not a descendant of the Loyal Mdewakanton. We are going to take the allegations that people are lineal descendants at face value and prove that out as a matter of fact in later proceedings. MR. KAARDAL: Yes, Your Honor. Thank you. THE COURT: Thank you. Mr. Longstreth, would you address Mr. Kaardal's proposed revised third amendment to the complaint? MR. LONGSTRETH: Yes, Your Honor. I have not yet seen it, so I'm somewhat compromised in my ability to speak to it, but to the extent the claims have not changed, and Mr. Kaardal represents in their pleading that all the individuals are lineal descendants of individuals who were in Minnesota in 1886, we don't oppose the revised third amended complaint. THE COURT: All right. Thank you very much, Mr. Longstreth. MR. LONGSTRETH: Thank you. THE COURT: Now, the Court will issue an opinion in this matter in due course, but the Court is likely to accept or adopt for filing the revised third amended complaint. We're going to have to work with counsel to set a procedure for sorting through the issues associated with descent, but that's a matter for the future. Are we ready to move to the second issue, that is the Cermak complaint? All right. Now, Mr. Pierce? MR. PIERCE: Yes, Your Honor. THE COURT: I take it that you represent at least two Cermak groups as proposed applicants for intervention. Is that correct? MR. PIERCE: I represent two groups who have the last name Cermak. There are two other groups, Your Honor, who do descend from John Cermak who I represent as well. THE COURT: And which are those groups? MR. PIERCE: Those two groups, Your Honor, would be Michael Stephens, that motion to intervene, and as I look through the various motions that I have I believe Dolores Klingberg. That is also a Cermak group. THE COURT: All right. Thank you. MR. PIERCE: And I believe that is the extent of the Cermak groups, Your Honor. THE COURT: All right. Now, Mr. Shapiro, may I from memory try to give a summary of what I think the proceedings are and where we stand? As the Court has it, there are two Mr. Cermaks at issue. One the father of another. Both are deceased. John Cermak was an assignee of property at the Shakopee Community. Is that correct? MR. SHAPIRO: Mr. Cermak was a certificate holder. That's correct, Your Honor. THE COURT: All right. Thank you. Well, assignee. Right. Now, as I understand it Mr. Cermak brought a claim before the U.S. District Court for the District of Minnesota, or the descendants, asking to be continued in the assignment and that raised a set of claims under the Administrative Procedure Act and also some trust claims, and the District Court transferred part of the case here, or at least part of it got to this Court. Excuse me. Just a moment. MR. SHAPIRO: This is Mr. Shapiro. THE COURT: Yes. MR. SHAPIRO: As we're speaking, I believe someone on the line is typing, and if could ask the people on the line to mute their phone so I can hear? THE COURT: Thank you. That's a reasonable request, but in any event a judge of this Court, Judge Hodges, issued a decision essentially dismissing the case. Certainly, this Court is not a court of review ordinarily that has jurisdiction under the Administrative Procedure Act. We do a fair amount of administrative review, but not directly under the Federal Questions Statute and the Administrative Procedure Act. Our review basically takes place under the Tucker Act. And then also rejected the trust claims by Mr. Cermak on statute of limitations grounds. It was back on the APA grounds, it was back before the District of Minnesota. The District of Minnesota ruled against Mr. Cermak on those claims. Those were carried forward to the Eighth Circuit. The APA claims, as the Court understands it, are still pending before the Eighth Circuit. The Eighth Circuit transferred the trust claims back to this Court for action, and you have moved, Mr. Shapiro, to confirm this Court's prior order dismissing those claims. Is that correct? MR. SHAPIRO: Your Honor, with certain clarifications that is partially correct. THE COURT: All right. MR. SHAPIRO: Believe it or not there are actually some other courts that were involved in the Cermak matter.
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Post by denney on Aug 4, 2006 0:00:40 GMT -5
THE COURT: Well, I understand the Federal Circuit got involved on reviewing a transfer, but in any event I skipped over that. MR. SHAPIRO: For the most part, that's correct. I would say that the Cermaks have brought not only a breach of trust claim but also a Fifth Amendment takings claim, and when Judge Hodges had the case, he considered both the takings claim and the breach of trust claim, and although he didn't enter an order of final judgment, he did dismiss both of those claims. THE COURT: Now, the question I have for you on your motion is whether the Indian trust accounting statute doesn't permit the trust claims to go forward? MR. SHAPIRO: Your Honor, I wanted to address that, but as the Court is aware, Mr. Cermak's counsel is not present in this phone call, and I'll just let the Court know that I did talk to Mr. Crosby who is Cermak's counsel in that matter prior to this hearing. He was aware of this case, but because he had not received an order or direction from the Court, I don't think that although he knew about this he was intending on participating. So if the Court would like me to address the merits of our position on the accounting statute I'd be glad to if this is the proper forum. THE COURT: Well, the Court is going to have to address this issue one way or the other. Now, it's been briefed. The Court certainly has the papers from both sides, and the one question the Court has for you, Mr. Shapiro, is whether or not the Indian trust accounting statute doesn't bar, and I hate to say bar, but prevent the statute of limitations from acting as a bar to Mr. Cermak's trust claim or the Cermaks' trust claims. MR. SHAPIRO: It's our position, Your Honor, that it does not, and the reason is because the claim that the Cermaks have brought would not fall within the scope of the Indian trust accounting statute. What the Cermaks have brought in the Cermak v. United States case is a different breach of trust claim than what the Wolfchild Plaintiffs are currently arguing. In addition, the takings claims would not fall within the Indian trust account statute. But as far as the breach of trust claim, we have argued in our papers including our reply brief that what the Cermaks are arguing in Cermak v. United States does not fall within the Indian trust accounting statute. THE COURT: And the basis for that is? MR. SHAPIRO: In the Shoshone Indian Tribe case out of the Federal Circuit, the Twelfth Circuit considered the scope of that accounting statute and concluded that that statute merely delays the commencement of a limitations period until an accounting has been completed that reveals whether a loss has been suffered. The Federal Circuit determined that that statute applied to losses of trust funds, but not losses of trust assets. The claim that the Cermaks are making is at most a claim on the loss of trust assets, not a loss of trust funds because what they are arguing is that the cancellation of the John Cermak land certificate by application of the 1980 Act took away land which should have been allowed to descend to plaintiffs, and because that is a claim that does not fall within the Indian trust accounting statute, I believe that that statute would apply in this case. THE COURT: Well, the Court has a little trouble with the whole set of arguments dealing with what I would think of as the heirship aspect. Now, granted there was a custom and practice of continuing assignments of 1886 property to a member of the prior assignee's family, but that was a custom and practice. There did not appear to be a right of heirship, and there are a couple of Supreme Court cases, the Hodel cases that deal with heirship specifically. So do you accept those premises, Mr. Shapiro? MR. SHAPIRO: If I understand the Court's question, I believe we do, Your Honor. The land certificates here were canceled, and we believe that that was the proper course of action for the BIA to take upon the death of John Cermak after 1989, so there was no right of heirship for the land certificate for the 50 acres that were covered under those land certificates. The proceeding that the Cermaks wanted to occur is they wanted that land to descend to them through John Cermak's will, and when that didn't occur, they then sued us under the APA, but also brought the takings claims, the breach of trust claim. We believe those claims have no merit. THE COURT: Well, the takings claim depends on (a) interpretation and application of the Supreme Court's Hodel cases, and the Court has in mind Justice O'Connor's decisions in those cases. That's a matter of whether the Cermak family had rights of heirship, and the Court can certainly look at that issue. The trust claims appear to be broader however, and you say they are not. I take it your position is that they are not in the Cermak case itself, but they are insofar as the Cermak Groups represented by Mr. Pierce are making claims in the Wolfchild case itself. Is that your position, Mr. Shapiro? MR. SHAPIRO: You mean Mr. Pierce's complaint for intervention in the Wolfchild case? THE COURT: Yes. MR. SHAPIRO: I understand those to allege similar allegations to the Wolfchild claim, but again I do not believe those are the allegations that are made in the Cermak first amended complaint or second amended complaint. THE COURT: All right. Well, we will examine that question. MR. SHAPIRO: And, Your Honor, in the second amended complaint in paragraph 28 for example in the Cermak matter, the Cermak plaintiffs allege as they have always alleged that defendant, and this is a quote from paragraph 28, "Defendant's refusal to allow the Cermaks to retain an interest in the land certificates." And then continuing on, "had deprived plaintiffs of this land or its use without compensation and in derogation of the explicit language of the Indian land certificates at issue here." The complaint is in Cermak that the land certificates were canceled, and these plaintiffs were not allowed to inherit that land, and the decision was considered by the BIA and IBIA, and it was rejected. It was that rejection and the cancellation of those land certificates that led to the filing of the Cermak v. U.S. case. THE COURT: Now, you say that the assignments were canceled. That's not the Court's impression of the facts. The Court appears to have, or at least I have the impression that Mr. John Cermak died, and the assignment expired with his death, and the question was whether a member of his family was entitled to or should have received the assignment thereafter. I don't have the Department of Interior actually as canceling an existing assignment to a living person. MR. SHAPIRO: Your Honor, that did occur. In 1990 the land certificate that had been assigned to John Cermak was canceled, and there is a letter in the record in the Cermak case that was put before Judge Hodges. I believe it was June of 1990 where their land certificates were canceled, and because that occurred six years prior to the filing of this lawsuit that was one of the arguments we made that this claim is barred by the statute of limitations. THE COURT: Mr. Longstreth? MR. LONGSTRETH: Your Honor, I was just going to add that I believe Mr. Cermak died, and then the Department of Interior does sort of do a cancellation just for the record after the death. THE COURT: All right. That's what I had understood. I tried to be very precise in the language I used that no assignment to a living person was canceled. MR. SHAPIRO: Your Honor, if I misinterpreted what you were saying, I apologize. Yes, Mr. Cermak died, and the land certificate was canceled. THE COURT: Right. MR. SHAPIRO: It was then that the Cermaks sued the United States claiming a violation of APA, breach of trust and the takings claim. THE COURT: All right. Thank you because otherwise the record of this hearing would have been muddled, and the Court appreciates the clarification. All right. Is there anything else, Mr. Shapiro, that the Court should take into account in addition to the moving papers? MR. SHAPIRO: Well, we believe our position is set out fairly well in our papers unless the Court has any questions about our position. THE COURT: All right. Well, I've asked the question I had, and I take it with that we may take it under submission as far as you're concerned, Mr. Shapiro? MR. SHAPIRO: That's correct, Your Honor. THE COURT: All right. Thank you. Now, may we move to intervention? We have the moving papers. Mr. Kaardal, you have not had an opportunity to address all of the applicants for intervention. Is that correct? MR. KAARDAL: Your Honor, I did file a response yesterday to the motions to intervene that are pending. Did the Court receive it? We tried to fax it to Chambers yesterday. THE COURT: Well, we did receive it, but the question I have is that we received a set or many sets of applications for intervention that were basically received by the clerk's office on the 12th. Many of them were actually filed yesterday because the clerk's office identified various defects in them, and we acted on those defects to cause them to be filed yesterday. Now, I take it you did not address those that were filed within the last several days? MR. KAARDAL: That's correct, Your Honor. We may not have copies. However, I think the general principles that I've laid out in my response to the pending motions to intervene will likely hold for them. THE COURT: All right. And if you could summarize your position? MR. KAARDAL: To summarize, our position is the only trust beneficiaries as determined in the 2004/2005 opinions so far are the lineal descendants of persons on the May 28, 1886, Minnesota/Mdewakanton census inclusive of the 1889 supplement. I understand there are other theories of trust beneficiary status that are being presented by the proposed Intervenors as well as people who are trying to prove lineal descent through this case according to our theory, so there are two groups: One, they've accepted our definition of what a trust beneficiary is, and they have counsel, or they're pro se, and they are attempting to show that they're trust beneficiaries just like our clients as the Judge earlier indicated, so they have similar, for lack of a better term, standing. Then there's another group which is saying we have a different standard that we would like the Court to look at to define what a trust beneficiary is. Ms. Felix, I refer to them as the Loyal 394, that's Mr. Thompson's clients; then the Cermaks, and we've identified those three. There may be more. Our biggest concern isn't that they be excluded because we see an interest in the Court in having one case to resolve all these different claims of trust beneficiary status. The Plaintiffs have an interest in that, and we believe those claims can be managed in this Court process efficiently as long as they're integrated with respect to the pending motions, and that's what I proposed in my response to the motion to intervene. On March 3 I filed partial summary judgment motions regarding the alleged U.S. breach of its fiduciary responsibilities to the lineal descendants with respect to the formation of the Shakopee government: 1) the overinclusiveness and the underinclusiveness of the base tribal roll consisting of 33 people. We assert, and we have the evidence that there are many lineal descendants; over 4,000 lineal descendants that are alive today that were alive then that should have been included on the underinclusive base roll at Shakopee; 2) it was underinclusive because of the 33, some of them were not lineal descendants, and it wasn't properly checked. To give a historical context to the Court, the Department of Interior discovered that soon after Shakopee's constitution was approved by these 33 and discovered that there were nonlineal descendants, the Solicitor, William Gershnee, wrote a 1971 letter indicating no, you have to check to make sure at Shakopee that they are lineal descendants by getting their birth certificates, for them and their ancestors, much like the Court notice indicated. There were meetings held at Shakopee. Those documents have been submitted to the Court, then a federal investigation continued for years, and then when they discovered the size of the problem, George Goodwin in his 1976 letter -- he was the Minneapolis BIA director, wrote a letter to Normal Crooks, the chairman at Shakopee and said: (and I'm paraphrasing) we know what the law is, but we're not going to disturb the land assignments to the nonlineal descendants at Shakopee, and then the 1980 Act. And the important point about the partial summary judgment motion is that Your Honor has determined there was a breach beginning in 1980. We're asking the Court to go back to 1969 when the real problems arose when the BIA improperly did a tribal roll and approved a constitution that allowed the Shakopee community to keep people out based on voting them in. And also on a quarter blood quantum requirement, neither of which are in the statute and are also inconsistent with the foundation or formation of the governments at Prairie Island and Lower Sioux which are not implicated in the pending partial summary judgment motions. So to summarize with respect to not the former group of Intervenors, but the latter group of Intervenors, that is the group of Intervenors that are saying there's a different way to define trust beneficiary status, Your Honor, you should look at this. We believe to ensure a complete record so that Your Honor can define what the nature and extent of the breach is as in your earlier opinion you indicated; we think it's helpful to have them in and then to have those claims made at this time, and what basically they would be saying is: Mr. Kaardal's arguing that there was a breach in 1969 and that there was a subsequent federal investigation based on sound principle that wasn't completed. What these proposed Intervenors are saying and this latter group are saying, not only did the BIA get it wrong when they allowed Shakopee to form this way, but the Solicitor of the Department of Interior also misdefined the trust beneficiary group when the federal investigation was conducted. That's why I think it's the appropriate time to bring these Intervenor claims to the fore because they're legal claims, and they can be resolved by the Court regarding the trust beneficiary status, so I'm proposing two steps. The judge already indicated the one step. The first step would be resolve the legal claims regarding what is a trust beneficiary, and the second step would be the factual questions determining for each purported trust beneficiary, do they meet the standard. This I think would be a way to officially adjudicate the claims. It would also provide for maximum due process, and I'm stuck. I'm stuck because the United States refuses to allege a claim of substantive interest for any other people. We don't have them accepting historical conditions, explaining how this group of Mdewakanton people has had this relationship over 100 years. If I may just quickly, by analogy. It's one thing for the corporate trustee to forget the third and fourth generation of the Rockefellers. It's far worse to give half the money to the Joneses, but the United States in this case, the nonlineals aren't the Joneses, they're not related, so the trustee in this case doesn't have an alternative position or hasn't presented one yet to our definition of a trust beneficiary. And that's why we're kind of spinning our wheels, and so having the second group of proposed Intervenors in play allows us to filter out these different claims and create a sufficient record. Otherwise it's just, Your Honor, myself and the Court communicating, and there isn't any friction, right? But now there's lots of friction because we have others, and if the United States would take a position on who the trust beneficiaries are or how you define a trust beneficiary, maybe it would be different, but I think this is actually useful in facilitating the case and for efficient adjudication with the provisions I added. THE COURT: Well, just to remind you, Mr. Kaardal, part of the purpose of this exercise leading up to today was to define the parties, and that's what the Court has been endeavoring to do since the second Wolfchild decision was issued, so I think that really is our function in part today or what's going to happen immediately thereafter. MR. KAARDAL: And I appreciate that, Your Honor, and the Court-issued notice obviously worked. Secondly, I understand why you stayed our motions for partial summary judgment, and we have not moved today to lift that stay. THE COURT: No, and we're not going to do that. MR. KAARDAL: I understand. THE COURT: We have enough issues before the Court today. MR. KAARDAL: Is there anything else, Your Honor? THE COURT: No, not at the moment, Mr. Kaardal. Thank you. Mr. Longstreth?
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Post by denney on Aug 4, 2006 0:01:25 GMT -5
MR. LONGSTRETH: Thank you, Your Honor. So, like counsel for the Wolfchild Plaintiffs, we haven't had a chance to examine all of the motions for intervention or respond fully in our papers, but as we've indicated in our filing, we don't oppose the motions to intervene with just one exception which we thought didn't make sense to combine with this action; that is the Felix motion to intervene for the reason that they indicate in their proposed complaint: that they were not in Minnesota in 1886. And it's our understanding that the Court's interpretation of the trust, that it is founded on the three appropriations acts of 1888, 1890 and therefore if somebody recognizes that they weren't in and doesn't allege that they were en route to Minnesota at that point, it seems like they're just in a class sufficiently removed that intervention does not make sense. THE COURT: Well, the Court was hardly making this up. The Court was looking at the precise language of the appropriations acts of 1888, 1889 and 1890, and they seem to require that a person be a Loyal Mdewakanton, whatever that may mean, and have severed tribal relations. In other words, not have been someone who removed to -- the Court thinks of it as the Dakotas, but then in any event, associated with that removal after the 1862 outbreak, and those are statutory criteria that were applied. I understand the problem with the Felix movants, and I'm going to ask Ms. Felix to address that in a moment, and in part it's not just that. There really needs to be an allegation that the persons involved are Loyal Mdewakanton who had severed tribal relations, but that they also could prove that they were in that posture and there are a couple of ways to do it. Presumptively, if you were on the 1886 roll or the 1889 supplement, that ought to suffice. That's not to say there aren't other ways though. Do you have any views on those subjects, Mr. Longstreth? MR. LONGSTRETH: The question of other ways to prove that? THE COURT: Yes. MR. LONGSTRETH: I mean, we certainly recognize the possibility of proving it through other means. I think at this point we also have not ruled out for ourselves the possibility that the 1886 rolls should for the purposes of Interior implementing those appropriations acts serve as the sort of foundation that did at that point in time define the beneficiary group, and I'm hesitant to rule out the possibility of pursuing that in light of sort of fuller argument on the subject that we might be persuaded. THE COURT: All right. Now, do you have any views on the two classifications of intervenors that Mr. Kaardal put forward? That is those that can claim descendancy from persons on the 1886 roll and 1889 supplement as a first group? MR. LONGSTRETH: I certainly recognize that there is a very strong presumption that those individuals were members of the class that's been defined to date in the case, and so I recognize that there could be benefit to having the latter group that doesn't trace to someone on the descendancy sort of explain why they are appropriate Plaintiffs. Whether it makes the most sense to address that issue next in the case or after further summary judgment briefing, I don't have a strong view on it. I can see benefits to both grounds I think. It may be that an additional round of summary judgment briefing defines the potential scope of damages in a useful fashion for the case to go forward. It may be that it does not, of course. THE COURT: Well, this case poses all sorts of case management issues, and one of them has to do with the progression. Let's just stick with the first set of issues here before us today. It just seems natural that there is a division, and this is not offering any views as to the merits, but between those who can claim that they are descendants of the 1886 roll and the 1889 supplement, and those that have another basis for endeavoring to establish that they were in fact descended from a Loyal Mdewakanton who had severed tribal relations. MR. LONGSTRETH: Absolutely. When I was making notes about the complaints, that's the central distinction that I was making. It didn't seem to me that there was a basis to oppose intervention simply because somebody doesn't trace to a name on the 1886 roll. THE COURT: All right. Thank you. Now, the Court has a set of questions for counsel for different groups of Intervenors. I wonder if we could take those and then potentially hear from Mr. Kaardal, and you, Mr. Longstreth, in response, and I guess the first might be Ms. Felix. MS. FELIX: Yes. THE COURT: Ms. Felix? MS. FELIX: Can you hear me? THE COURT: Yes. MS. FELIX: Okay. Because I'm having a little bit of trouble hearing what Mr. Longstreth said, but if I could comment? I believe that you want me to speak a little bit to the issue of why we should be able to intervene? THE COURT: Yes. Now, let's just say that Mr. Longstreth to be precise about it has raised the question, and it's not a flat objection, but it's a question whether or not, Ms. Felix, your family is claiming descent from someone who was either in Minnesota at the relevant times or in any event had another basis for establishing that they were Loyal Mdewakanton. MS. FELIX: Okay. I'll try to speak to that, Your Honor. Just for future accuracy, my first name is spelled in the feminine version with an E, not an I, and that would be the only thing. Not critical, but just for accuracy. I do want to say that the issues and ideas expressed in the Felix family motion should stand as stated, but in a nutshell, we believe that the Act of Congress in 1863 was directed at the Indians who either helped the non-Indians or fought heavily in August and September of 1863, and then all of the subsequent acts were part and parcel of the intention of that Act, and that the language of the subsequent acts were not really consistent. They went back and forth between mixed blood to whole blood and back again, and that the use of the 1886 census was simply a tool for the Bureau of Indian Affairs at the Department of the Interior to make this payment that had already been established in law and that primarily in general the people who were in power at that time were not Indians and did not really understand the history of these people. And what is important at this point is that the ancestor that we're talking about here, Joseph Coursolle, was raised as a ward of Sibley, before he was governor of Minnesota, and Joseph's daughter, Elizabeth, married Dana Felix who was raised at Mendota; and his father, Joseph, both who had mixed blood of Indian in them. Dana grew up around the Sibley household. Her father worked for him, and so that was the basis for their loyalty to the non-Indians, and they were loyal. They both fought to defend war victory and that's kind of in it from the history, and that isn't in question. The fact that they used the census, the 1886 census, as I said was simply an administrative tool, and I think what is important now is the development of an accurate census of all of the descendants of the Mdewakanton who were in Minnesota and not on the land since '62. One other thing I just want to say is that I know from looking at the Dakota County land records that some of the Indian lands as being his father's sold; he had to go to Court and testify that he was selling it because they were in financial hardship and at the point that Dana and his wife Elizabeth left Minnesota, they had five of their own children in that same cabin. They were looking for a place to farm. They believed that they were apprised that that area had land that they could farm. They returned to Minnesota in 1992 after the special agent of the Department of the Interior put a notice in the paper and searched for all of these people who had fought with them and so they returned in 1992 and began to look for land. And that's when he purchased the land at Prior Lake where Dana's family grew up, my father grew up, and I grew up, and I became part of that land, and this was long, long before the establishment of those Shakopee governments. You must remember the rule wasn't established until 1969, and I graduated from high school in 1968 and was long gone before that time, so I think what has to be understood in this process is that the intent of Congress was to benefit those people who were non-hostile. That's all I have. Thank you. THE COURT: All right. Thank you, Ms. Felix. Now, you used a date 1992. I'm not sure I heard you correctly. MS. FELIX: Yes. I'm sorry. 1892. THE COURT: That's what I thought, but I just wanted to clarify that for the record. MS. FELIX: Yes. The special agent had documented the people that he was searching for in 1892, and at that point Dana and his family including my father who would have only been about -- well, he was born in 1891, so he was a baby, came back to Minnesota, and then purchased the land and built a cabin at Prior Lake. THE COURT: All right. MR. JOHNSON: Your Honor, this is Scott Johnson. If I might -- we're not representing that he is simply an officer of the Court. I wonder if this might be helpful. Our office has had an opportunity to review some of the Minnesota historical and diary matters and some of the empirical records relating to Joseph Coursolle. And I just wanted to tell you of course that it is fascinating, and Mr. Coursolle actually appears to actually reference a firsthand account from the diary entry that he actually took up arms in Fort Ridgely, was later recognized in 1892 among others and had been honored for his heroism in that very difficult couple of days, so if this is helpful, it is in our records that you have reviewed. THE COURT: All right. Now, thank you, Mr. Johnson, Ms. Felix and Mr. Johnson, I take it Joseph Coursolle's name is spelled, or at least sometimes spelled C-O-U-R-S-O-L-L-E? MS. FELIX: That's correct. It's actually spelled differently on different documents depending on how people heard it, but that's the correct spelling. THE COURT: All right. Thank you. Now, let's see. Mr. Thompson, you have the Abrahamson Group. I wonder if you would please comment, sir? MR. THOMPSON: Thank you, Your Honor. Randy Thompson. I represent the Abrahamson Group, also known as the Loyal 394 as well as the Krohn Family Group as the Intervenors. We've submitted substantial evidence to the Court including the historical research by Dr. Bruce White showing that in the nine years after the three appropriations acts in question, that Robert Henton from 1891 to 1898, and then subsequently following his death in 1899, Mr. McLaughlin conducted census documents of the individuals who met the statutory criteria: that is they were Mdewakanton descendants or Mdewakanton bloodlines residing in Minnesota on May 20, 1886, and who had severed tribal relations. As you look at the historical record you will see that the census records continue to increase over the years primarily because of the addition of mixed blood persons to those registrations, so we believe that the statutory criteria of the appropriations acts control, and that one way to demonstrate that you meet those statutory criteria is to show that you are a descendant of the person on the Henton censuses that occurred from 1891 to 1898 or the comprehensive McLaughlin census in 1899.
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Post by denney on Aug 4, 2006 0:02:06 GMT -5
McLaughlin's accompanying letter said all of the persons enrolled were born in Minnesota and have resided here their entire lives in the letter accompanying his 1899 census. Thank you, Your Honor. THE COURT: Thank you. Now, let me just go down. Mr. Pierce, if this Court were to basically sort the proposed Intervenors into two groups, one consisting of the descendants of persons on the 1886 roll and 1889 supplement, and the second group being those such as the Felix Group and the Abrahamson Group that have another basis for a claim of being a lineal descendant. Which of those two groups would your proposed Intervenors fall into? MR. PIERCE: Your Honor, to the extent the Court decides to adopt that approach which I don't think it needs to, but if it does, I have clients who would fall under both. Both who are descendants of those who are on the 1886 or 1889 supplement as well as those who are descendants from censuses that were mentioned by Mr. Thompson. THE COURT: All right. Thank you. Among other things what I'm trying to get an idea about more than intervention is to anticipate future proceedings where we basically have different issues associated with these two groups, and the idea of having somewhere in the range of 30 different Intervenor groups; the idea of getting 30 different briefs is not very attractive. And I'm just trying to see if there are at least aggregations that people might join briefs if nothing else, and that's the purpose of my question. So you say you really have people in both of these general categories? MR. PIERCE: That is correct, Your Honor. THE COURT: All right. Ms. Stricherz, may I ask the same question of you? Yes, please. MS. STRICHERZ: Your Honor, I think that the categories stand correct. The legal issues raised by other parties as to who qualifies as a trust beneficiary I think are questions that are still open based on the Court's opinion because in that Court's opinion it says, "The presumptive starting point is the 1886 census as supplemented by the 1889 census." It kind of left an opening there, and I think those other issues should be addressed fully. However, my group does fall into a similar group as Mr. Kaardal's, and that is they do assert that they are a lineal descendant from someone on the 1886 census as supplemented by the 1889 census, and we have no claims that differ from that. Thank you. THE COURT: Thank you, Ms. Stricherz. That helps. Now, Ms. Felix, you're next on my list, but I think you've very adeptly and adequately addressed the issues associated with your group. Do you have anything further in light of the subsequent comments that have been made? MS. FELIX: No. I just think it's important to recognize that, you know, within 30 years of the Dakota uprising the feelings about Indian people were pretty negative, and that anyone who could by bill or education not be associated tried to do that, and in my family's case the loyalty to Sibley as to the non-Indians was very clear. And one of the things in the fifties -- my father was that they purposely turned the land that they got at Prior Lake into a title -- I have forgotten the term now, but the title that could not be challenged because they did not want it to be Indian land, and so I guess, you know, that's the only thing that I can add is that if in fact an appropriate census had been taken in 1959, our family at the very least could be part of the Shakopee community, so I guess I'll just leave it at that. Our group at this point would not fall into the category of the Kaardal Group. It would be separate. THE COURT: All right. Thank you. That's helpful. Ms. Walker? MS. WALKER: Yes. THE COURT: May I ask the same question of you? MS. WALKER: Yes, the parties I'm representing that are various John Does all do go back to the 1886 census as either Henton or McLaughlin roll. THE COURT: All right. Thank you very much. Mr. Zephier? MR. ZEPHIER: Yes, Your Honor. According to the earlier discussed categories, it is true that our group mainly descends from names on the 1886 census, however we have also raised the argument that I agree with so eloquently described by Ms. Felix, we have raised the issue of also being descendants of the Loyal Mdewakanton who were part of the Elrod from 1891 to '92 which referred to the loyal two scouts and soldiers. And I think that was part and parcel of the progression from the Congressional acts dating back to 1862 to honor the allegiance and honorable service of those individuals and their families, and I think that we have raised both of those issues, Your Honor, and so I really don't know specifically where we would fall into these categories, but maybe it is in both. THE COURT: All right. MR. ZEPHIER: We are of course mindful of the Court's earlier opinion regarding the 1886 and 1889 census as a presumptive starting point, but we also have direct lineal descendants whose Loyal Mdewakanton as derived from that list of Sioux scouts and we have raised that in our proposed complaint as well. THE COURT: All right. Thank you, Mr. Zephier. That's also quite helpful. Mr. Leventhal? MR. LEVENTHAL: Yes. THE COURT: Would you address the same question respecting your group? MR. LEVENTHAL: Well, our group would be in the second category in that they are a part of the surveys that were completed in 1899, and they're in that group, and we believe that that's the proper nexus for the Court when indicating that 1886 was not the only provision or only stopping point for Loyal Mdewakanton. THE COURT: All right. Thank you, Mr. Leventhal. Mr. Foster? MR. FOSTER: Yes, Your Honor. The groups I represent at least at this time are alleging status similar to the named Plaintiffs in the case. At this point I think it would be fair to say we have no position as to other possible avenues of entitlement. THE COURT: All right. Thank you. That's helpful. Mr. Killinger, I'm going to ask you if you could identify where your group stands in this respect? MR. KILLINGER: In the first group, Your Honor. The motion that I thought was up today was No. 173 on the docket list. It's on the Winona Enyard list. There's about 217 names on it. They're in the first group. I filed a subsequent amendment to that adding 38 names, part of what was filed on July 12. THE COURT: Yes. MR. KILLINGER: I didn't think that was up for hearing today. THE COURT: We're not going to have a separate hearing, Mr. Killinger. MR. KILLINGER: All right. Okay. And they're in the first group also. THE COURT: That's what I wanted to know. MR. KILLINGER: So the ones in the first filing were in the first group. The ones in the second group are also in the first group as you've defined the groups. THE COURT: Well, I'm just taking a set of suggestions. That seemed a logical way to approach it. Now, just to go back, the amendment or the supplement; let's put it that way, the additional list that you filed, Mr. Killinger, is something that the parties, Mr. Kaardal and Mr. Longstreth, can address and they will have time to do that before the Court issues an opinion. So there's no doubt about that, but I wanted to clarify that if anything startling comes out of their responses, then you or anyone else whose representing an Intervenor group may file a reply. MR. KILLINGER: We made the same claims in the amendment as we did in the original motion to intervene and complaint. THE COURT: Okay. MR. KILLINGER: Same claims, just some additional names. THE COURT: So you're basically in the first group? MR. KILLINGER: First group. THE COURT: Thank you. That helps. MR. KILLINGER: Thank you. THE COURT: Mr. Rooney? MR. ROONEY: Yes, sir. THE COURT: Where do you stand? MR. ROONEY: All of our proposed Intervenors are direct descendants of Madelyn Rocque listed on the '89 Henton census. THE COURT: All right. Thank you. I think that answers the question insofar as your group is concerned. Mr. Johnson? MR. JOHNSON: Yes, Your Honor. Our groups are three: First, descendants of Madelyn Rocque who is listed on the 1889 census; second, John Taylor who is also listed in the '89 census: and thirdly, Margaret Prescott who is on the '86 census, so we're all in the first group. THE COURT: All right. That's helpful. Mr. Horn? MR. HORN: Thank you, Your Honor. Each of the six complaints that I've filed as lead counsel are lineal descendants of someone on the '86 census or this '89 supplemental. THE COURT: All right. That's helpful. Mr. Thurman? MR. THURMAN: Yes, Your Honor, my people actually fit into both categories. I do have clients that are direct descendants of people appearing on the '86 or '89 census, as well as falling into the second category. I do have two families that would be of mixed blood. It's very clear that their descendants were present in Minnesota in 1886. However since at that time they weren't necessarily listing being mixed bloods on these censuses, however the later act of Congress as recorded indicated includes mixed bloods in their language. We believe that that would be an avenue that they should be included as well, Your Honor. THE COURT: All right. Thank you. That's helpful. Mr. Blair? MR. BLAIR: Yes, Your Honor. Our John Doe families I believe fall into both of the categories; one or the other of the two categories as you've defined them this morning. Mr. Barry Hogan, my partner, has met with those families over the last few weeks, and he's there in the courtroom, so he may be able to elaborate a little bit. THE COURT: Mr. Hogan? MR. HOGAN: Your Honor, our group consists of seven different families, and some of the families track in part to the '86 and '89 census and almost all of them have a combined connection through the 1892 Sioux scout list which Mr. Zephier referred to, so we've got them both ways. THE COURT: All right. Thank you. Now, let me just say there's a distinct possibility those of you such as Mr. Blair and Mr. Hogan, Mr. Thurman, Mr. Leventhal, Mr. Pierce -- I'm just from memory going down through the list. If you have people in both camps, then you're likely to be filing twice because the Court at some point will ask that the Intervenors group themselves, and so you want to be prepared I think to join both groups. I hope there are no conflicts that arise. I'm assuming that there won't be. We'll find out. Ms. Emerson? MS. EMERSON: (No response.) THE COURT: Ms. Emerson? MS. EMERSON: (No response.) THE COURT: Well, we seem to have lost Ms. Emerson. MR. HORN: Your Honor, may I? This is Garrett Horn. THE COURT: Yes. MR. HORN: I have talked to Ms. Emerson, and I know that the family that she is representing she has indicated to me is a lineal descendant from somebody on the 1886 census.
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Post by denney on Aug 4, 2006 0:02:40 GMT -5
THE COURT: All right. That's helpful. Thank you again, Mr. Horn. Now, let me just review. Is there anyone who is representing an Intervenor group that we have not asked? I'm putting aside Lower Sioux. We're going to come to that Lower Sioux motion. Anyone who hasn't been asked a set of questions? Yes, sir? MR. MONTANA: Yes, I'm Dumarce. THE COURT: I apologize. If you would please come forward. MR. MONTANA: Yes, Your Honor. Gary Montana. THE COURT: Mr. Montana. MR. MONTANA: Yes. Thank you, Your Honor. We would have people that would fall into both groups, but we're proffering to the Court that there are many other indicators other than 1886/'89 census and the supplement to the '89 census that we have to look at. For instance, with Mr. Thompson we're talking about the 1899 McLaughlin census which talks about Mdewakanton within Minnesota during that period of time. Also the James McLaughlin census of 1917 on the second or third page, I don't have it in front of me right now, indicates that these people were not involved in the uprising. Also, there was an Indian camp census that was taken in December of 1863 which is right after the uprising which would also be a good indicator of who is in Minnesota and who wasn't in Minnesota right after the uprising. Also, we would agree that Samuel Brown's scout list of 1892 and the Elrod census of 1895, or 1892 was the census of Elrod, 1889 was of Samuel Brown. Those are scouts that were assisting the military in bringing in hostiles; it would also be a good indicator to the Court of who are Loyal Mdewakantons. I guess it goes back to the Court deciding what category or what elements you have to meet. I mean, you have to be loyal, you have to be Mdewakanton obviously, and then you have to be residing or re-moving into Minnesota during this period of time. THE COURT: And you have to have severed tribal relations. MR. MONTANA: Right. But the question is with severed tribal relation, what does that mean? THE COURT: Yes. MR. MONTANA: I mean obviously back then we didn't have tribal enrollment as we do today, so severing tribal relations would be to me as an Indian lawyer who has practiced Indian law for 20 years, it would be difficult to define. Does that mean that they were no longer Mdewakanton; does it mean you plan on picking up annuities? I mean, I think that that raises a lot of issues on how you define severing tribal relations. Okay? An issue. THE COURT: Well, that is in the Appropriations Act. MR. MONTANA: Yes, Your Honor. THE COURT: And we have to deal with that, Mr. Montana. MR. MONTANA: Yes, and I think the loyalty issue is a big issue too because we did do some research into the loyalty issue, and it appears from Meyers' book which you cite that there are really only three Indians that were not involved in the uprising, and that was Other Day, Coursolle and another half breed, so I mean if they had to be loyal, then that narrows the group dramatically to three people and their descendants. We would have people, Your Honor, in both groups. THE COURT: All right. Thank you, Mr. Montana. That's actually very helpful MR. CROSBY: Your Honor, this is Gordon Crosby. They just patched me in. THE COURT: Mr. Crosby? MR. CROSBY: Yes. THE COURT: Have you joined? MR. CROSBY: I have just joined, Your Honor. THE COURT: All right. I wonder if you would wait just a moment. We'll go back and revisit something we had talked about earlier? MR. CROSBY: All right. THE COURT: And we're actually dealing with Intervenors at this point, and let me just ask again out of an excess of caution, just apart from Mr. Magnuson, is there anyone else who is representing a set of applicants for intervention who has not yet spoken? All right. Now, Mr. Magnuson MR. MAGNUSON: Good morning, Your Honor. THE COURT: Good morning. MR. MAGNUSON: Fascinating proceedings. I represent the Lower Sioux Community who wants to intervene as a matter of right or by permission. Under Rule 24 a party is entitled to intervene if they submit a timely application demonstrating a sufficient interest in the property or transaction that is the subject of the litigation, an interest that is not adequately represented by the current parties and where there is no prejudice to the parties already in the litigation. All of those factors exist here, Your Honor. Additionally, under 24(b) if there are common questions of law and fact, the Court may in its discretion allow intervention. Intervention requirements are to be construed in favor of intervention, and the well pleaded allegations in the complaint are to be accepted. Your Honor, clearly the application is timely. You're adding parties left and right, and we are here with the rest of the Intervenors wanting to join in this case. The interest of the community is also clearly adequate. I think that was the focus of the government's opposition that we have no interest. Before 1980, the communities only had an advisory role with regard to the disposition of the property. The 1980 Act gave the communities control of the property exclusively. Now, the nature of that interest as you yourself noted in your opinions isn't entirely clear. It's described as the property being disbursed or transferred or control transferred, but the fact of the matter is for the last 26 years the communities have exercised control over this property. THE COURT: Well, now that deals with the implementation of the 1980 Act. The Court has a whole set of questions about that because the United States appeared to transfer its interest in the property, and the 1886 property is what we're talking about, to the communities in trust. MR. MAGNUSON: Yes. THE COURT: And we have a whole set of questions about what that means and how that fits with the initial Appropriations Act. MR. MAGNUSON: I agree, Your Honor, and my client wants to be a participant in the litigation to explore that further. What is clear is that we have control of the property at this point in time. THE COURT: Right. Now, that was a question because the United States appeared to retain after the 1980 Act a role as trustee. MR. MAGNUSON: Yes. THE COURT: Do you agree with that? MR. MAGNUSON: I agree, Your Honor, but -- THE COURT: But practically you're saying the communities control the property? MR. MAGNUSON: Right. So the question is is that a sufficient interest to participate in the litigation? You have indicated the possibility that the communities may lose control of the property; that it may be the government wants it back. We certainly have standing and an interest in litigating that issue. I think if you look at the Karok Tribe case that we cited, there it was an action in some ways similar to this, an action for damages for a taking brought by certain tribes, and the tribe who wasn't a participant but who claimed to have an interest in the property that would be defeated by a successful claim by the Plaintiffs or at least implicated was found to have standing to intervene. The Court said, "In this litigation the ultimate issue is whether the plaintiffs are entitled to monetary compensation," the plaintiffs' claim here. "In the course of rendering a judgment the Court will necessarily resolve the following subissues: whether the plaintiffs had property rights in the former reservation. "If so, whether the Settlement Act took those rights away, and if so, then is that taking compensable," and the key is the Court's statement further down in the opinion, "If plaintiffs still have rights in the land and the Hoopa Valley Tribe," or analogously the Lower Sioux Community, "would have to share with plaintiffs such rights as the land that is apportioned to the tribe. The obligation to share the land would impair Hoopa Valley Tribe's right to exclude others." By analogy, Your Honor, if we have control now, and it is property that really is for the benefit of people other than our community members because it has been administered for the benefit of both, we're going to have a diminution of our rights that is a sufficient interest for intervention to allow us to appear. THE COURT: Now, let me just clarify. The Lower Sioux under what's happened in implementing the 1980 Act has gained, or gained is maybe not the right word. MR. MAGNUSON: Has possessed. THE COURT: Possessed or taken. I don't mean that in the Fifth Amendment taking sense, but taken full control over the 1886 lands. Is that correct? That's your position? MR. MAGNUSON: That's my position. Yes, Your Honor, and this litigation is necessarily going to decide whether other people then, community members, that is lineal descendants have an interest in that. That's going to diminish inevitably whatever interest it is that the community controls, and we're just talking intervention here, Your Honor. We're talking to make sure that we have a sufficient stake in the fight to let us participate, and I think that we clearly meet that test. THE COURT: All right. Your moving papers Mr. Magnuson are very well done. I will commend you on well-researched, although brief, and the Court appreciates that, moving papers. MR. MAGNUSON: Thank you. THE COURT: All right. Thank you. MR. MAGNUSON: And then if the Court has any other questions, I'd be happy to answer them, but our interests significantly overlap with the Plaintiffs' interests because the vast majority of our members are lineal descendants, but they are not mutual in every respect. We may take a different position with respect to who is a lineal descendant or what property goes where. What we really want is the opportunity to make sure the accounting is fair, full and accurate. THE COURT: All right. Thank you very much. MR. MAGNUSON: Thank you. THE COURT: Let's hear from Mr. Longstreth on this issue, and then, Mr. Kaardal, you might get a chance to reply. I think you might. All right. Mr. Longstreth? MR. LONGSTRETH: Thank you, Your Honor. THE COURT: Now, let me just say at the outset that the interest that the Lower Sioux assert through Mr. Magnuson appears to be as the entity in control of the relevant 1886 lands, not as a group that has members who are Plaintiffs. MR. LONGSTRETH: Yes, Your Honor. I mean, to the extent that we found other interests represented in their papers, our papers address those and we won't go into that here. With respect to their interest in the 1886 lands at the lower Sioux reservation, we certainly recognize they have a strong interest. It did not appear to us form their papers that they intended to participate in order to protect that interest, and if you look at the standing doctrine, you need to have a concrete interest. I guess the first point I should make really is it's our view that this is a proceeding for money damages against the United States. THE COURT: Well, the United States still is a trustee of the 1886 lands even under the 1980 Act. MR. LONGSTRETH: Correct. Yes. THE COURT: That's what it says. MR. LONGSTRETH: Absolutely. We are a trustee of those lands. We believe that we are administering them consistent with the 1980 Act. To date the three communities have, in our understanding, but for these intervention papers agreed with us on that so the first issue is we don't believe that this proceeding actually affects their ability to continue to possess those lands because it's an action for damages. THE COURT: Now, there is a way. Let me just comment on that issue. There is a way to construe the Appropriations Acts of 1888, 1889 and 1890 and the 1980 Act consistently, and that is you could say that the United States was and still is a trustee, and that in effect as a result of the 1980 Act, the United States has appointed as its agents for administration of the trust, the three communities. MR. LONGSTRETH: We certainly think there's another way the two acts are consistent. THE COURT: I'm just saying that's a possibility. MR. LONGSTRETH: Yes, I understand. And you've indicated an intent to pursue that further, and to date the Court hasn't provided an explanation yet, and that seems relevant to future motions, so if we can address that further, that seems useful.
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Post by denney on Aug 4, 2006 0:03:20 GMT -5
THE COURT: Well, but that possibility is the one thing that is consistent not only with Mr. Kaardal's position and Mr. Magnuson's position, but to some extent at least with your position, although I know you don't like that result. MR. LONGSTRETH: Yes. Our position of course is that there was not a trust and that the acts are consistent. THE COURT: Form the outset. MR. LONGSTRETH: Yes. THE COURT: I understand that. MR. LONGSTRETH: If I may? Perhaps I can just turn to the issue that in the proposed complaint and intervention that Lower Sioux proposes, they suggest that we have breached our duty by doing precisely what we've done in terms of transferring the lands and designating them as the trust beneficiary and giving them substantial control over the lands. THE COURT: Well, I take it you not only transferred the land, and I'm not saying you; the Department of Interior, but the monies that were held as well, but not all the monies. I don't quite understand that part. There's some monies still held by Interior? MR. LONGSTRETH: It appears to me, and we are in the process of engaging with an expert to try to get a better accounting of all of this, but that there is $3,000 that has not been disbursed, and approximately $90,000 was disbursed. THE COURT: Right. MR. LONGSTRETH: And certainly with respect to claims as to the possession of the lands, we are consistent with what Mr. Shapiro was arguing earlier. Under the Indian trust accounting statute the only claims that are not barred by the statute of limitations are claims to trust funds, so again there isn't an issue as to possession of the land. THE COURT: Well, but that position, Mr. Longstreth, depends upon an interpretation not only of the 1980 Act, but also of the Appropriations Act, so you're kind of assuming an answer. MR. LONGSTRETH: No, I'm just presenting our arguments. THE COURT: All right. That's fine. MR. LONGSTRETH: Turning just to the question of -- THE COURT: I apologize. This weather has just gotten to me. MR. LONGSTRETH: It's very pleasant in here. Just turning to the issue that I sort of started down initially. In order to have standing, you have to have a protectable or concrete interest that is protectable and could be remedied, and in terms of the complaint that Lower Sioux has presented, they're arguing that when we turned the lands over to them, we breached our fiduciary duty. And they appear to be supportive of the Plaintiffs who include of course, Mr. Wolfchild who is the chairman at Lower Sioux at the moment, so it doesn't appear to me that simply because they could seek to protect that interest, and they could have standing if they are not actually attempting to protect that interest. It doesn't seem to me that they've satisfied the requirements of standing. THE COURT: But they haven't denied the fact, and in fact they've averred that they are the managers and controllers of the 1886 property at Lower Sioux. MR. LONGSTRETH: Certainly, and it appears to me that they could assert an interest that would meet the criteria of standing, but it wasn't clear to me from their papers that they have actually done that to date. This morning Mr. Magnuson was less clear about where they stand on whether they should be in possession of those lands and whether they seek to protect their interest in those lands or whether they seek to assist in the case of their member Plaintiffs who are present as Plaintiffs in the case. THE COURT: Well, the individuals can represent themselves either with Mr. Kaardal or with one of the Intervenor groups. We're putting aside the Intervenors. We're taking about the entity. MR. LONGSTRETH: That makes sense to me. MR. GASKINS: Your Honor? THE COURT: Yes. MR. GASKINS: This is Steve Gaskins for Dennis Prescott and Joseph Goodthunder who are two elected members of the five-person Lower Sioux Community counsel? THE COURT: Yes. MR. GASKINS: I don't mean to bust in line. THE COURT: Don't. MR. GASKINS: The very issue -- THE COURT: Mr. Gaskins? MR. GASKIN: Yes, sir. THE COURT: Your turn will come. MR. GASKIN: Okay. THE COURT: Thank you. MR. LONGSTRETH: Thank you. THE COURT: All right. Mr. Kaardal? MR. KAARDAL: Your Honor, it will be no surprise to you that this case originated at the Lower Sioux Community, and that's where the first individual Plaintiffs were, and there's a long history of the Lower Sioux Community being the most open to the lineal descendants as far as admission and sharing per capita payments. Even though it's the poorest of the three communities, it has the most open enrollment. It requires residency, but then people are admitted in, and we're very happy to have Lower Sioux seeking the responsibility of intervening and participating in these arguments regarding 1886 lands, and we see a history there. We also see a present interest that Lower Sioux has to intervene regarding the control and management of the '86 land also relating to these membership issues. These judgments that will occur in this Court will have some prospective effect at least collateral estoppel effect and so forth we believe. We think it's very important to have all the voices here. That's why we didn't object to any of the individual motions to intervene, and that's why we feel that Lower Sioux's motion to intervene should be granted and also welcomed. Thank you, Your Honor. THE COURT: Thank you, Mr. Kaardal. Mr. Magnuson? MR. MAGNUSON: Your Honor, our position is simple. In resolving the issues in this case, you will determine the rights of these Plaintiffs, and the rights of all three communities in the 1886 lands. THE COURT: And the rights of the United States. MR. MAGNUSON: Yes, and not all the property we hold is 1886 lands. You're going to do an accounting, and you're going to make a decision in awarding your damages if you choose to do so as to who should have gotten what. The people who hold the stuff that's not going to be part of that award are the communities. They should be allowed to participate because as in the Karok case, your decision will affect the rights that we have in the property. Mr. Longstreth talked about standing. I couldn't find a decision from this Court or the Federal Circuit addressing standing in intervention. There is a split of authority. The San Juan County case out of the Tenth Circuit kind of pulls the circuits, and more appear to not require Article III standing than do require it, but we have standing. We have an interest that will be directly affected by the outcome of this case. THE COURT: Now, the Karok case seems to anticipate at least factually in that case, or it seems to decide that there was Article III standing, that was really the basis, and you're saying that applies here. MR. MAGNUSON: I think the same analysis does. But then, Your Honor, if you look at the American Renovation case, a creditor of the Plaintiff had a sufficient interest even though this Court wouldn't adjudicate the creditor's rights, they had an interest in what was being resolved. If you look at the Armour of America case trade secrets. The Court wasn't going to adjudicate trade secrets, but it was going to affect them. The Cherokee Nation cases and other cases of intervention that support this. The question is do we have enough of an interest so that we have the right to get in. The alternative question is can we be of assistance to the Court should you allow us to come in on permissive intervention. THE COURT: Well, let me ask one quick question. You say on behalf of the Lower Sioux as indeed all the communities and property that is 1886 property, and property that is not? MR. MAGNUSON: At least the Lower Sioux does. I think it may be the case. I don't know if it's Prairie Island or Shakopee. It may consist entirely of 1886 lands, but I can only speak for my client. THE COURT: All right. I seem to recall Mr. Longstreth -- maybe the first Wolfchild case; Shakopee at least had 1886 lands and then other lands, and anyway we'll sort that out, but you're representing, Mr. Magnuson, that Lower Sioux has 1886 lands and other lands? MR. MAGNUSON: Yes, Your Honor. THE COURT: All right. And the other lands certainly would not be affected in any respect by this case as the allegations have been made? MR. MAGNUSON: Right. But sorting it out is important.
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Post by denney on Aug 4, 2006 0:04:02 GMT -5
THE COURT: Right. MR. MAGNUSON: Thank you very much. THE COURT: Thank you. Now, I wonder if we could go back briefly so the Cermak case. Mr. Crosby? MR. CROSBY: Yes, Your Honor. THE COURT: The Court is pleased to have you join this proceeding. We had discussed the nature of the claims that were made in the Cermak case, and those that were transferred to this Court by the U.S. Court of Appeals for the Eight Circuit, and we focused on the trust claims rather than the takings claims recognizing that the APA claims were being briefed to the Eighth Circuit. MR. CROSBY: Right. THE COURT: Could you give us an idea of the status of the APA claims before the Eighth Circuit? MR. CROSBY: Your Honor, we have time yet to file our reply brief. I don't know whether that's necessary. I'm still working through the United States' brief, and I've got I think another four or five days to decide whether or not I want to file a reply brief. From my experience with the Eighth Circuit, it could be months yet before this case is argued, and then months after that before the Eighth Circuit reaches any decision. THE COURT: All right. Now, I wonder if we could focus on the trust case or the trust aspect of your case? That is part of it that the Eighth Circuit had transferred here? MR. CROSBY: Sure. THE COURT: Mr. Shapiro was dealing with the trust aspects of the case and had argued earlier that the trust aspects of your case was not I'm going to use the word comparable, although that's not the set of words Mr. Shapiro used; comparable to the trust claims that were being raised by Mr. Kaardal on behalf of the Wolfchild Plaintiffs, and I wonder if you could address the nature of the trust claims? And if you need to, we could ask Mr. Shapiro to restate his position, but you've already seen the briefing on this matter, and so I guess if you can I'd appreciate it if you could address it. MR. CROSBY: All right. Our position has been that Stanley Cermak and Raymond Cermak had a viable claim to two 25-acre land assignments that were held in the name of John Cermak who was the father and grandfather of Stanley and Raymond, and our claim that we have brought to the Court of Claims is for the loss of the use and the funds that they could have gotten through these two 25-acre land assignments. And I think that that is fundamentally different from the claim that is brought by Mr. Kaardal which is very broad and is very general. Our claim is far more specific, and it's again a much, much older claim. We've been back and forth to the Eighth Circuit and the Federal Circuit and the Court of Claims and the U.S. District Court here in Minnesota for, Your Honor, I believe the last 12 years. I think I've been in Court with the Cermaks as long as one of my daughters. I figure that when this is over that we'll have enough to send her to law school. THE COURT: Perhaps, but we'll try to avoid that. We don't want to make this a Dickensian proceeding, and that's part of the reason why we're proceeding orderly, step by step. So part of the claim focuses on two 25-acre tracts and part of the claim focuses on funds. Is that correct? MR. CROSBY: Yes. THE COURT: All right. Now, I wonder that if given that background, Mr. Shapiro, you would comment, please? MR. SHAPIRO: Yes, Your Honor. As I understand the Cermak claim, it is one and the same. The Court just said that part of it is land and part of it is funds. I wanted to just be clear on our understanding of what the papers actually say, but what the Cermak plaintiffs are alleging is that the cancellation of the two land certificates in their claim -- and they are not talking about as we understand it, funds generally. They are talking about these funds that may have been generated from these two 25-acre tracts, and it is the loss of that land that they are claiming results in their claim, so when they're talking about loss of funds, that's just a measurement of their damages, not some other trust mismanagement claims as is raised in the Wolfchild case. But as we understand it what the Wolfchild Plaintiffs are alleging in their second amended complaint at least; there was a breach of trust arising from some sort of trust mismanagement, and that is at least somewhat similar to what the Cermaks have argued in their complaints in intervention in Wolfchild. At least in that complaint there's some inkling of trust fund mismanagement. That then may implicate the Indian trust accounting statute, but what the Cermak plaintiffs have alleged is very different. They are saying the U.S.'s cancellation of the Cermaks certificate was improper because those 50 acres should have descended from John Cermak to the plaintiffs. THE COURT: Well, let me ask you a question, Mr. Shapiro? Is there any doubt but that the two 25-acre tracts are part of the 1886 lands? MR. SHAPIRO: Your Honor, I'm not really able to answer that, but maybe Mr. Longstreth could. THE COURT: Well, that seems kind of a key question in the case. MR. SHAPIRO: Well, Your Honor, in the Cermak matter what they were alleging again is that a cancellation of those certificates should have descended to plaintiffs. We were defending that claim. THE COURT: Well, no. I understand that. I'm just trying to figure out whether the land encompassed by the Cermak claims -- John, Stanley and Raymond, going to Raymond, was part and parcel of the 1886 lands? MR. SHAPIRO: I think that would certainly be something if the Cermaks were permitted to proceed in the Wolfchild matter that would certainly be something that the Court would have to consider, but that's not a necessary resolution of the Cermak v. United States case. THE COURT: Well, all right. Just a moment, Mr. Thompson. I wonder if we could hear from Mr. Longstreth. MR. LONGSTRETH: Your Honor, it's my understanding that the two land assignments are part of the 1886 land. THE COURT: All right. Thank you. Mr. Thompson? MR. SHAPIRO: Your Honor, if I could? THE COURT: Now, just a moment. Who is this, please? MR. SHAPIRO: I'm sorry, Your Honor. This is William Shapiro again. THE COURT: Go ahead, Mr. Shapiro. Mr. Thompson, if you'd wait just a moment? MR. THOMPSON: Sure. MR. SHAPIRO: I don't mean to cut you off, Mr. Thompson. Excuse me. If I could just clarify one point, Your Honor? The Indian trust accounting statute applies with certain types of breach of trust claims, and it applies to a situation where there is at least an argument that there was some sort of trust fund mismanagement. How would an accounting help in the Cermak matter? What the Cermak plaintiffs are saying is that here there were 50 acres that we should have inherited, and we were wronged because the U.S. did not allow us to inherit that land. What the trust accounting statute applies to is it applies to protect trust beneficiaries when they wouldn't know they had a claim without first reviewing an accounting. Was there a trust fund mismanagement, and I think -- THE COURT: Well, actually, Mr. -- MR. SHAPIRO: There may be some cases where -- THE COURT: Mr. Shapiro, if you could just stop a moment. Let's go to the Basic COBOL case that's pending before the U.S. District Court for the District of Columbia. The claim there is that the plaintiffs need an accounting in order to determine what the loss is. That's the claim that's pending here that Mr. Kaardal has brought. Do you agree with that? MR. SHAPIRO: I do agree with that, Your Honor, but that is not the claim that the Cermaks have raised. THE COURT: All right. MR. SHAPIRO: Because how would an accounting help in the Cermak case. They know that there were 50 acres in those land certificates. They know that it was canceled; with that cancellation -- but that doesn't mean that the Indian trust accounting statute applies to their claim. We believe that our position is consistent not only with the recent Simmons v. United States case out of this Court, but also with the Federal Circuit's decision on the Shoshone case where the Court there said that the trust accounting statute does not apply when what you're talking about is not an allegation of a trust fund mismanagement. And here at best what the Cermaks have raised is some sort of argument that maybe we should have inherited this land, and so we didn't get that trust access, and that, according to the Shoshone case, is not covered under the Indian trust accounting statute. THE COURT: All right. MR. SHAPIRO: And if you consider what Plaintiff previously argued in this matter when this was first brought to Judge Hodges, we argued that their claims were barred by the statute of limitations, and the Indian trust accounting statute didn't come up, and we believe that the reason it didn't come up is because plaintiffs recognized at that point that it wasn't applicable to their argument. In response to what we argued that their claims were time barred, plaintiffs argued that their claims should be considered to have been tolled because they had participated in the administrative process before the BIA and IBIA in relation to whether they should have been allowed to inherit these 50 acres.
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Post by denney on Aug 4, 2006 0:04:43 GMT -5
We fully briefed that argument, and Judge Hodges agreed with us, and all we are asking in our motion for entry of final judgment is just to effectuate the holding that Judge Hodges did reach, and in entering final judgment, Judge Hodges transferred their claim to the District Court to allow them to pursue their APA claim. But what they are arguing in Wolfchild and perhaps what the Cermaks have argued in their motion for intervention in Wolfchild is not what Judge Hodges was dealing with in the Cermak v. United States case, and it's not as we understand it what the Cermaks have alleged in their second amended complaint. THE COURT: All right. Thank you, Mr. Shapiro. Now, Mr. Thompson. Thank you for your patience. MR. THOMPSON: I just wanted to address the Court's question about whether or not the John Cermak lands were part of the 1886 lands, and the answer is yes, and I think you'll find those Certificate Nos. 64 and 65 in the filings we made on behalf of the Eleanor Krohn Family which shows that they're clearly 1886 lands. THE COURT: Thank you very much, Mr. Thompson. Ms. Stricherz, did you have something? MR. STRICHERZ: No, Your Honor. THE COURT: Mr. Kaardal, did you have something? MR. KAARDAL: For shorthand, Your Honor -- the lands at Shakopee -- there's a Department of Interior memo in 1976 indicating all the lands at Shakopee at that time were 1886 lands, so it's easy to remember it. THE COURT: What was the date again? MR. KAARDAL: 1976. THE COURT: All right. Then I take it lands have been acquired subsequently by the Shakopee community? MR. KAARDAL: With the casinos that came in the late '80s. Thank you, Your Honor. THE COURT: Thank you. Now, Mr. Crosby, is there anything you want to add? MR. CROSBY: Nothing I can think of at this moment. Thank you. THE COURT: All right. Thank you very much. Now, I wonder if we could move to the issue of the summons and whether this Court should issue summons to the two communities, that is Shakopee and Prairie Island, that have not moved to intervene. The summons would be issued under 41 U.S.C. ƒu 114. Mr. Kaardal? MR. KAARDAL: Yes, Your Honor, thank you. Mr. Mohrman was able to count the Plaintiffs, so before I forget, so the Court doesn't have to spend its time doing it, 6,553; so that's the number. THE COURT: And that includes 211 Does? MR. KAARDAL: That's correct, Your Honor. THE COURT: All right. Thank you. MR. KAARDAL: Your Honor, it's my motion to issue the summons to both the communities and their members, and I wanted to note that because the Court hadn't mentioned that. THE COURT: Well, I appreciate that. I'm sorry? MR. MOHRMAN: It's 219 Does. THE COURT: 219. Is that included within the 6,553? MR. MOHRMAN: It is, and that's without a calculator. MR. KAARDAL: Ten points for honesty. THE COURT: Well, I have a four-and-a-half-year-old granddaughter who would say it matters when you count individually because sometimes she loses track when she gets over 20. The 40s she has trouble with. Go ahead, Mr. Kaardal. MR. KAARDAL: So the context in which I filed the March 3 motion to issue the summons has now sort of played out. We have approximately 10,000 intervenors who want to come into the case. With respect to the community members, the adults, there are approximately 200 at Shakopee, 250 at Prairie Island, and at Lower Sioux approximately 360. But a majority of those have joined the case through us and perhaps through others because there are John Doe Plaintiffs represented by other attorneys here, and the context which we filed the motion for issuance of the summons was after reading your opinions, and you addressed the summonses issue briefly in the December 16 opinion. But more importantly to me and because of the Court's interest in due process was the raising of the issue of how are we going to show the extent and nature of the breach of fiduciary duty, and it became clear to me that not only the communities should be summoned under 114(b), but also the members, and I go back to the two-step process. THE COURT: Well, just a question for you, Mr. Kaardal. We had the discussion with Mr. Magnuson about the fact that the communities as entities are different from their members? MR. KAARDAL: That's correct. THE COURT: So you're saying the summons should be issued not only to the two communities; the two that are not represented by Mr. Magnuson, but also each of their individual members? MR. KAARDAL: Who are not Plaintiffs, yes, and so this is our position. THE COURT: All right. MR. KAARDAL: And I'll explain why. THE COURT: Yes, please. MR. KAARDAL: Okay. And so as I discussed earlier this morning with respect to the two-step process there's going to be a two-step process, or we're proposing a two-step process. First, what I would call purely legal questions regarding how do we define trust beneficiary status, and our proposal is this is about connecting the dots because the Court ruled that a trust existed, and that a breach occurred in 1980. I grant it stayed, but they're important because they relate to our motion to issue the summons is that the Court should look at our partial summary judgment motions eventually and determine whether the United States breached when approving the Tribal Base roll at Shakopee at 33 people both over- and underinclusive in our briefs. And then also regarding the approval of the Shakopee constitution in 1969 which had a quarter blood quantum requirement which wasn't in the statutes and further a vote-in restriction which wasn't in the statutes, and so our view is that the communities should be involved, particularly Shakopee in that case, should be involved under 114(b) to allege or assert or defend an interest. And I think that's very important, and I think that the community members also should be because this relates as we talked about with the proposed intervenors whether they're going to be trust beneficiaries. The intervenors, 10,000 of them, are going to be proposing different standards for trust beneficiary status. That's going to be determined. We should also have the Shakopee, Prairie Island and Lower Sioux community members who may have different claims in their communities regarding this case to at least be summoned to allege or assert their interest. We're a bit between a rock and a hard place on that one because this is a trust proceeding, and in courts which have lots of trust proceedings like in state trust courts, this is a matter of course, a jurisdiction in rem, notice to all interested parties, they get copies of pleadings. My concern is because the due process here is that these people get notice of the proceedings so that they can allege or defend their interest as Section 114(b) provides. THE COURT: Is there any real question, factually, but that the lineal descendants who are members of the Shakopee and Prairie Island communities haven't received notice? I mean, they must have notice. MR. KAARDAL: Your Honor? THE COURT: The problem was identifying the persons who were not involved with the communities. MR. KAARDAL: I believe that the summons are necessary because of the inadequacy of the Court's rules, and to draw a comparison again in the State Probate courts, everyone gets notice at the beginning and of every proceeding all the way to trial. And I understand that this is a big undertaking, and I've argued for all intents and purposes this is a jurisdiction in rem case because the Court has limited jurisdiction but has great powers as well. And in those powers, the Court can resolve these claims at least as a legal matter, and I think that they ought to be summoned so that they can make their claims, and to use Shakopee as sort of a representative isn't giving them their due process. The reason being that we don't have a case where the people who we allege are purportedly getting the benefits as wrongful beneficiaries are all related. Shakopee and Prairie Island have a problem. Just like the United States, they don't have an alternative trust beneficiary theory. They're not joined like we're trying to join the intervenors here. We're going to have intervenor groups, Your Honor said. Well, they have a problem because they have also intervenor groups in the second category I'm talking about. So when they present their arguments, they're going to present an argument consistent with intervenor groups here as I indicated the possible arguments in my brief including the 1929 Pipestone roll and so forth. They're not going to make all the arguments for all their members, and I think that due process I don't want to do this over again. I just want to do it once. Due process would require the Court to issue summons to individual community members so that they're summoned as parties, and they get the copies of the pleadings, and they get to understand what's going on, and they get to participate with respect to most importantly the definition of trust beneficiary status, and they're in no different position than these proposed intervenors in the second category. They're going to be arguing 1929 Pipestone roll, 1899 census, the McLaughlin 1917 Act judgment roll and so forth, and they deserve an opportunity here. I also think it relates to --
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Post by denney on Aug 4, 2006 0:05:20 GMT -5
THE COURT: I don't think there's any question about that. Persons who claim to be lineal descendants should have an opportunity to participate. The difficulty, Mr. Kaardal, I'm having with your argument insofar as the members of those two communities are concerned, is that this Court really arguably does not have power to summon a plaintiff. Arguably, the due process requirements are ones of notice, and we discussed the Hoffman LaRoche case from the first anticipation or before the first decision that was issued in 2004 that a federal trial court has a responsibility to oversee joinder of additional parties in an orderly manner, and people who in essence opt in to the group of plaintiffs should have notice to give them the chance to opt in, but to summon a plaintiff? MR. KAARDAL: Your Honor, that's not what the statute says, what the statute says is that you can summon parties to allege or defend an interest. THE COURT: Right. MR. KAARDAL: So I don't see anything in the statute that says for all intents and purposes jurisdiction in rem that you shouldn't be summoning those parties to give them maximum notice. The reason being is that these trust beneficiary definitions matter. If Mr. Montana is right, then some of them out to be joining Mr. Montana. THE COURT: That might be so, but this is a situation where they have a choice. MR. KAARDAL: Well, I guess there's a distinction here as the Court would know between legal authority and what you decide to do, choose to do prudentially, and so I think the statute clearly provides the Court with this power to summon a party to allege or defend an interest even if it's a reluctant party; to come into the Court and state his case. So if the Court would concede that then as a prudential matter I would point out that if the Court were to come to a conclusion based on my analogy the state courts having jurisdiction in rem that it would make sense because that would mean that the typical member of Shakopee would receive a copy of the trust beneficiary designation papers filed by Mr. Montana or Ms. Felix or whatever, and then they would be able to respond. And that is a different type of involvement in the case than what we're discussing, and my concern again is that to rely on the communities as representatives of a people it's just not possible. It would be easy for all of us if all the nonlineals at Shakopee -- remember it was formed in 1969 when there is only 1886 land, and part of our arguments are that that list was overinclusive, that the 33 had people that were nonlineals on it, and the federal government investigated that. Pursuant to the solicitor's opinion in 1971, they had meetings at Shakopee, they identified nonlineal descendants, and then they quit the investigation, and so those people have expectations based on first relying on what the BIA told them, George Goodwin in the 1976 letter, and then subsequently after the 1980 Act. So they've been relying on what their federal government has told them and what their communities told them. It would strike me that they ought to get notice of actually what's going on in court to the extent it's going to affect their rights. THE COURT: Well, they have in a sense received notice through the publication that was made after the second decision last year. MR. KAARDAL: I understand, Your Honor, but with respect to that -- THE COURT: You're saying that doesn't satisfy due process implicitly? MR. KAARDAL: Because they could be hurt, right? THE COURT: Well, they could be heard. MR. KAARDAL: Hurt, like a defendant. THE COURT: Hurt. That's possible. MR. KAARDAL: They would be damaged, right? THE COURT: That's possible. There isn't any doubt about that, but presumably they already know that. MR. KAARDAL: Well, how would they know without the papers that are going to filed? These motions regarding trust beneficiary status? The notice was drafted for the purpose of adding Plaintiffs, and these people have a different standing with respect to the Plaintiffs because they benefitted from the breach. Wrongful beneficiaries in all trust proceedings I've been involved with in state court get notice because they have a lot at stake, not only for the past but prospectively, and I don't think it's much different here. We have purported wrongful beneficiaries who are receiving the trust funds. THE COURT: All right. Now, Mr. Montana, we'll cover you in just a moment. I'd actually like to hear from Mr. Longstreth if that's possible. Mr. Longstreth, it seems we have two different questions. One is summons to the communities, and presumably the interest of the entities itself is potentially the same kind of interest that was discussed with Mr. Magnuson, and then we have potential summons to the members of these two communities. MR. LONGSTRETH: Your Honor, I would make a distinction whether we're talking about providing notice and whether we're talking about a summons that will as described in Plaintiffs' papers make these entities parties to the litigation. THE COURT: I was going to raise the same question with Mr. Kaardal, but if you know of someone who is going to be affected positively or negatively by a proceeding then notice arguably seems appropriate, but to summons them? MR. LONGSTRETH: I entirely agree that a summons seems excessive, and I don't believe that it's contemplated by the rule as we articulate in our papers that a plaintiff can summons third parties to become actual parties in a litigation where they would face default judgment. The Court's rules distinguish between issues of summons and indicate only the government can. THE COURT: Well, now we're not talking about Rule 14. We're talking about Section 114. MR. LONGSTRETH: Yes, precisely which at least according to the Rules' committee notes of Rule 14, Rule 14 implements -- THE COURT: Well, yes and no. MR. LONGSTRETH: Okay. THE COURT: It does not fully implement it. You happen to have a judge who is the chair of the Court's Rules Committee. MR. LONGSTRETH: I should have learned that sooner. THE COURT: I'm sorry. That argument is -- MR. LONGSTRETH: Yes, so then let's turn to the provision itself, and as the Court has explained in the Oak Forest case and the Byrd v. United States case, there's a distinction between the effect of summonses depending on who has requested them, and when it's on motion of the Attorney General it has what I think of as a real summons effect and becomes a party and can come and appear or face the possibility of a default judgment against them. So with respect to that sort of summons, I don't believe that 114(b) provides that kind of authority to a plaintiff, and I likewise don't believe that it would be appropriate in this case particularly given our view of the potential scope and ramifications of the Court's ruling in terms of on the ground access to 1886 lands, which by the way the government of course does have a view on the trust beneficiary. It's a view that the Court has rejected, but it's our view that the lands are held in trust according to the 1980 Act for the three communities. THE COURT: Well, if I read your papers correctly, you seem to in essence be arguing that Section 114 should be construed in pari materia with Rule 14 as it now stands. MR. LONGSTRETH: I believe that's correct. In other words, at least I'll say as I read Plaintiffs' papers their intent to make the communities and their members parties to the litigation was something that they did not have power to seek under Section 114(b) because of a distinction recognized in the Court's decisions of the Oak Forest and Byrd cases -- between the effect of a summons sought by the Attorney General and the summons sought by a plaintiff, and it's consistent with -- THE COURT: Now, that's not how I read Mr. Kaardal's papers at all unless I misheard you. In fact, just to the contrary he's arguing that not only can the Court summons Prairie Island and Shakopee because they have an interest in the 1886 lands, but he's arguing that the Court should summons those members who are not already Plaintiffs because they could be adversely affected. Could be. I mean, who knows? MR. LONGSTRETH: Right. I mean, that's consistent with my reading of their papers that he argues they should summon them. I may not have been clear. Our argument was that under Section 114(b) they don't have the power to seek a summons that would make somebody a party. THE COURT: Well, but Section 114 says, "The United States Court of Federal Claims on motion of either of the parties or on its own motion may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever pending in said Court to assert and defend their interests if any in such suits or proceedings." MR. LONGSTRETH: Right. THE COURT: Where do you get -- MR. LONGSTRETH: Well, if we read further, the nature of the claim or the effect of that, and it could well be that we were responding to just a concern the government could seek, and the summons that a plaintiff might seek equally, but under Rule 114 there is a distinction between the effect of a summons brought on the motion of the Attorney General and the effect of a summons brought by a plaintiff, and in our -- THE COURT: That might well be so, but that doesn't mean that the summoned entity or person wouldn't be a party.
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Post by denney on Aug 4, 2006 0:05:55 GMT -5
MR. LONGSTRETH: I guess as I read 114 the sort of consistent use of the word "summons" didn't seem appropriate, and in Plaintiffs' papers, the reason they argue the community should be summoned was that the United States may have claims they want to bring against the communities. THE COURT: Well, that may be so, but that's up to the United States. MR. LONGSTRETH: Yes, I agree. THE COURT: And before I asked that question, and you said well no we're not going to do that. MR. LONGSTRETH: Precisely. THE COURT: That's your business, that is our government's business, but that doesn't mean that the court under Section 114 arguably wouldn't have power to summons as a party an entity that claimed an interest in the subject of a suit. MR. LONGSTRETH: So recognizing that the effect of that summons would be different, I agree. THE COURT: Right. MR. LONGSTRETH: The 114(b) I can't deny what it says. It seemed to me that it was not using the terms as precisely as it would have been good if we were using them. THE COURT: Well, just to clarify, the Court could not separately enter a money judgment against a summoned party under Section 114, that is unless and until the United States sought a money judgment against that party. MR. LONGSTRETH: Right. THE COURT: Just like a setoff or a counterclaim this Court has the power to issue a judgment against a private party if the United States not only seeks such a judgment but proves its case. That's a separate matter. MR. LONGSTRETH: Yes, certainly. I remind the Court that it's our view that the primary question here is one of money damages against the United States. THE COURT: Correct. MR. LONGSTRETH: And therefore in our view the sort of possible interests of the communities or members who either are descendants or are not descendants who are not present will not be affected by the judgment which will go to the U.S. Treasury and take money and give it possibly to the Plaintiffs. THE COURT: I mean, that's anticipating a result in the future, but that affects the analysis of the question as to summoning members that Mr. Kaardal put forward. There's no doubt about that. MR. LONGSTRETH: I mean, if the United States is wrong about the potential effect of the Court's ruling, then we would have a very different view I believe on whether other communities in particular should be brought into the case or are necessary to the case. THE COURT: That's a little opaque to the Court, Mr. Longstreth. I wonder if you could explain what you just said? MR. LONGSTRETH: Well, our position is that the Court has a limited jurisdiction to provide money damages to the parties, and in a case of this sort does not have authority to direct the Department of Interior to take specific land parcels and hold them in trust for different entities, different beneficiary groups. THE COURT: No, this court couldn't do that in any event. Congress did that. MR. LONGSTRETH: In the 1980 Act? THE COURT: It did it to the Court's mind in the 1888, 1889 and 1890 Appropriations Act, and the 1980 Act. MR. LONGSTRETH: Right. Yes, so I think we're in agreement there. If Plaintiffs' view of the Court's power is correct, we would have a different view of whether other parties ought to be brought in. We're not going to change our view of the Court's power simply because Plaintiffs are seeking relief that we think they can't obtain. THE COURT: Well, we're a long way from the scope of relief in this case unfortunately. Mr. Montana? MR. LONGSTRETH: Thank you. MR. MONTANA: Just a point of clarification, Your Honor. My understanding of the power of the Court is to enter damages for a breach of trust. THE COURT: Yes. MR. MONTANA: Is that correct? THE COURT: That's correct. MR. MONTANA: Okay. THE COURT: Well, now there's a preliminary step. MR. MONTANA: Right. Okay. Before we get to that point? THE COURT: Before we get to that point, you have to deal with an accounting, and then the object of the whole exercise is a money judgment. MR. MONTANA: Right. So my confusion is the Court does not have the power to disrupt the communities that are organized under the Indian Reorganization Act. In other words, being an Indian community is not premised on the fact that you have lands. I mean you can still be an Indian community without trust property. THE COURT: Well, go ahead. I'm sorry. MR. MONTANA: So by summonsing the individual members in, unless they're part of the beneficiary class, I would see no point in that because they're always going to be part of that community whether it's Shakopee, Prairie Island, Lower Sioux. They're still going to be members of that tribe because the Court does not have the authority to overturn their constitutions or tell them who can be members and who can't be members, although -- THE COURT: That's correct. The Court has no powers that I can discern with respect to the organization of the communities as entities. MR. MONTANA: Right. So listening to the gossip in the Indian communities with the beneficiary class, they think that someone they're going to take over these tribes, and I said no. The end result will be a money damages if that suits the Court's judgment on this. THE COURT: Well, that's right, but in this particular case it is probably essential and necessary that the Court not only construe the United States' interest in the so-called 1886 land. MR. MONTANA: Yes, Your Honor. THE COURT: From the Appropriations Act. MR. MONTANA: Yes, Your Honor. THE COURT: But what happened to those interests after or in implementation of the 1980 Act. MR. MONTANA: Correct. THE COURT: And that's the argument that Mr. Magnuson so adeptly made. MR. MONTANA: Right. THE COURT: So I don't see how the Court could avoid a construction of the 1980 Act over and against the appropriations acts. MR. MONTANA: Yes, Your Honor. THE COURT: And deal with the situation today if you will. MR. MONTANA: And I understand the summons of the communities. It's just the individuals I'm not real clear about. If they have notice of this lawsuit, this claim, then they clearly have a right if they are lineal descendants and Mdewakanton to join one of these gentlemen in this lawsuit, correct?
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Post by denney on Aug 4, 2006 0:06:31 GMT -5
THE COURT: Or your groups? MR. MONTANA: My group or whoever, but the communities represent them in large, all the community members, and they represent those assets and oversee those assets, so I can understand -- THE COURT: Well, now that's a question. The powers that the communities have over the assets. I mean, that turns on the 1980 Act, and propriety is too strong a word. The appropriateness of what the Department of Interior did under the 1980 Act, that's a different question. MR. MONTANA: I guess my confusion was is that yes I see the community as being summoned, but the individual members? If they have notice of the suit, then they can join the suit. I mean otherwise it's still not going to affect their membership in the tribes and their interest in those tribes in the end, and obviously unless they lose per capita or money because of a judgment or something like that. THE COURT: Well, there are a set of questions in this particular case. The Court has real doubts that these three communities have sovereign immunity for example. Because they're not aboriginal tribes if you will. MR. MONTANA: Yes, Your Honor. THE COURT: They're not native tribes. They're collections of people who had to sever tribal relations as a kind of qualification. MR. MONTANA: Qualification to be a member of the tribe? THE COURT: To be a member of the beneficiary group. MR. MONTANA: Group. Exactly. Okay. So I understand that. THE COURT: And so they just don't have, at least I have real doubts that they have, we'll look at it because the government has made arguments that maybe sovereign immunity might be implicated. MR. MONTANA: But those tribes are not premised on those lands. I mean, their organization and their recognition as federal organized tribes was not premised on the 1886 lands. THE COURT: That's right. Well, it was in a sense. Now, that's an interesting factual question. You say no. MR. MONTANA: No, because any Indian tribe can be recognized, but they don't have to have trust lands. THE COURT: Well, no. They don't have to have trust lands. MR. MONTANA: Or lands period. THE COURT: Now, that's another question. MR. MONTANA: Well, I have some California clients that have their tribal headquarters in a strip mall on fee lands, a very small tribe. THE COURT: Right. MR. MONTANA: So there are tribes that are landless. THE COURT: You could have a recognized group under the Indian Reorganization Act that would not have, I hate to use the word "reservation" because that's not really appropriate. A lot of them don't, and you have the whole history of colonias and things like that in the west, especially New Mexico from Spanish grants and so on and so forth. MR. MONTANA: Right. Pueblos. THE COURT: So we don't need to deal with that. MR. MONTANA: Those issues, correct. Okay. I was just trying to sort this out in my mind because it was confusing to me. I mean, if you summon the communities, I can understand that because they oversee the assets of the federal government, but the individuals? I mean, if they feel that their interests are being negated by the communities, they obviously can join in. THE COURT: If they have notice, and that's really the question. MR. MONTANA: They have notice. THE COURT: I guess the question I'd have for you, Mr. Montana, is whether you believe that there has not been adequate notice to members? MR. MONTANA: Well, that was an issue I was going to bring up because I filed a motion to extend the intervention period, but I guess I probably should have just asked for a motion to amend my complaint to add plaintiffs, and that's what I will do, Your Honor. But I know there are a lot of people that were denied to be part of this suit by representation of Mr. Kaardal and his firm and also Mr. Kettering and his firm based on the fact that they did not meet their criteria which is not obviously the Court's criteria, and so those people got very late notice. I mean, I had people calling my office three days ago, two days ago, that had just recently received notice, and these are Indian people from a reservation in South Dakota that don't have telephones a lot of times, no computers. They think once they get a denial letter from these firms that all of a sudden because they believe that these people are the lions at the door that they no longer have a right to assert what they believe are their interests in this lawsuit. So because of the late denials that were sent to them, there are probably hundreds and maybe thousands of people out there that want to be involved in this lawsuit, but didn't have time to meet the July 12 deadline. THE COURT: Let me just put it this way. We have issued a set of orders yesterday and today. MR. MONTANA: Yes, Your Honor. THE COURT: Of persons who in a very informal way expressed interest in joining the suit. MR. MONTANA: Yes, Your Honor. THE COURT: But we said uniformly you must move to intervene, you must provide an accompanying complaint. MR. MONTANA: Yes, Your Honor. THE COURT: And if you do so after July 12, you must show good cause for why you're coming in belatedly. We aren't foreclosing it, but we're saying you have to show a good reason why you did not join this case earlier. MR. MONTANA: So that would be a same basis for first amended complaint? THE COURT: Yes. MR. MONTANA: Yes, Your Honor. THE COURT: It would. MR. MONTANA: I thank you very much. THE COURT: No, thank you. Mr. Kaardal? Actually, I think, Mr. Montana, the Court will thank you for that discussion because I think we want to put to rest the idea that the Court will focus in any way on the organization of the communities. MR. KAARDAL: Not so fast, Your Honor, if I may?
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Post by denney on Aug 4, 2006 0:07:11 GMT -5
THE COURT: All right. MR. KAARDAL: I think one of the challenges of this case is that once we uproot ourselves from the historical record, then we run into problems, and so when we take generally applicable principles that apply to tribes and place them on this remnant if you will, the Loyal Mdewakanton, we run into problems, and so when we go back -- THE COURT: Well, these aren't tribes. I think everyone would agree with that, and they aren't bands. MR. KAARDAL: Right. THE COURT: There's an identifiable group. The word used in the Indian Tucker Act. MR. KAARDAL: The Appropriation Act does say Minnesota Mdewakanton Band, and so there's self identification there. Now, with respect to the 1934 Indian Reorganization Act, the basis as I explain in my papers filed with the court on March 3, the basis for organization was residence on reservation land. Now, one could say that that's just land, but what it really means is that there are trust beneficiaries on the land, and that was the foundation for the organization of the governments' under the 1934 Act that led of course to the 1938 Solicitor's opinion saying that they weren't historical tribes, and so they have limited powers in sovereignty. THE COURT: Right. MR. KAARDAL: But that's critical, absolutely critical, to the arguments that I place before the Court granted stayed because in -- THE COURT: Let's just stop a minute, Mr. Kaardal. What that 1938 opinion indicates to the Court is that this is an identifiable group, and as Mr. Montana suggests, they could organize themselves under the 1934 Act. MR. KAARDAL: With the consent of all the trust beneficiaries which actually occurred. THE COURT: Well, but they didn't have control over the property at that time. The Department of Interior had it. MR. KAARDAL: And it still has. THE COURT: It still is a trustee? MR. KAARDAL: That's right, and so then where I dissent I guess is with respect to 1969, the conversation that Mr. Montana and the Court had suggests in some way that my motion, the Department of Interior should not have approved that tribal base roll at Shakopee, and should not have approved certain provisions in the constitution which in total excluded all the trust beneficiaries we're talking about. That is at issue in the case, and it relates to the collection of trust funds at Shakopee and how they're distributed and -- THE COURT: We're going to talk with Mr. Longstreth about that in a minute. I want to make sure that you've fleshed out your argument in that respect, and I'm not going to cut you off, but I'm going to ask though in 1969 Shakopee, Prairie Island, Lower Sioux did not control the 1886 lands. MR. KAARDAL: That's true. THE COURT: They gave advice if you will or comments to the Department of Interior. MR. KAARDAL: And my pending motions relate to Shakopee, and all the lands at that time were 1886 lands. THE COURT: Right. But you're going to have to convince the Court that it should get involved when the Shakopee community, however it was organized, did not have control at that time over those lands. MR. KAARDAL: Prior to the approval of the constitution?
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Post by denney on Aug 4, 2006 0:07:43 GMT -5
THE COURT: Yes. MR. KAARDAL: You're right. The land assignments were made. It was the approval of the constitution, the constitutional provisions and the approval of the base roll at Shakopee that led to the underinclusiveness that all the rights -- let's take the quarter blood quantum requirement -- so a lot of the proposed intervenors here and my Plaintiffs don't meet the Shakopee constitution's quarter blood quantum requirement, and that's not in the statute. So the Department of Interior approved the constitution with the quarter blood quantum requirement cutting off all these people from being members at Shakopee, and so we argue that's a breach, the Department of Interior was not fulfilling its fiduciary duties under the Appropriations Act, the Indian Reorganization Act did not permit the Department of Interior to eliminate preexisting land rights. And so if you read the statutes harmoniously, you would conclude the Department of Interior did not have the power and violated federal law by approving that constitution in 1969 because it for all intents and purposes terminated many of my clients' beneficiary rights. THE COURT: Now, you're saying that's because the Shakopee Community would not recommend that an assignment be issued to a person who is not on the Shakopee roll? MR. KAARDAL: And didn't have quarter blood of the May 20, 1886 list. THE COURT: Right. MR. KAARDAL: Right. And those are the arguments I've submitted to the Court, and I understand the Judge wasn't prejudging, but it sounded like he was prejudging an issue as saying that we were going to -- THE COURT: I'm just saying that I have real doubts. I'm trying to be fairly straightforward about this. I have real doubts about getting into any issue of governance of the communities. MR. KAARDAL: I understand that, but with respect to the calculation of damages and establishing liability -- for example, in the context of the summonses to the individuals, Dr. Buttes is here. She's our expert, and we've done opposition genealogy on members of Shakopee. We're going to show that many of them are nonlineal descendants. I for one feel uncomfortable with this Court making that determination for the purposes of liability and damages without them being summoned, and I think that when we look at the particulars there, my concern is that you may feel uncomfortable when Dr. Buttes presents that genealogical research in order to show that the list in 1969 of 33 people, was overinclusive. It included nontrust beneficiaries, and no argument based on the 1980 Act is going to save them on that, and then with respect to -- THE COURT: I might feel uncomfortable about that, Mr. Kaardal, but that's kind of looking with a retrospective view at an action that was not only taken by members of that community but by the Department of Interior at that time, and the Court is dubious that it has juridical power to go back and look at those kinds of actions because they touch on governance. MR. KAARDAL: Yes, but it touches on American governance in the sense that the tribal roll was approved by the BIA pursuant to federal statute. THE COURT: Right. MR. KAARDAL: The constitutions were approved pursuant to federal statute, and if you harmonize those federal statues with the trust obligations under the 1888, 1889 and 1890 Appropriation Acts, then you have a breach. THE COURT: That's why I asked you the question about what control the community had in 1969 as contrasted to late 1981 realistically. MR. KAARDAL: Up until 1969 before the formation of Shakopee, the Lower Sioux as indicated in the Cermak papers made recommendations to the BIA regarding who would get the land assignments. Ultimately, the land assignments were issued by the BIA. THE COURT: Right. MR. KAARDAL: And those people I think were then included in sort of the community of Lower Sioux to the extent they wanted to participate, and so it was part of the trust corpus, and I just want to mention on the tribal sovereignty the Court mentioned. We believe it's limited, and the Solicitor's memo indicates that, and we also believe that sovereignty is shared here. I would disagree with the point between the Minnesota/Mdewakanton Band, the lineal descendants and the other purported beneficiaries and the communities, and maybe that ties in with the agency theory the Court has mentioned. The communities are agents for the United States as trustees serving these people, but that's our position. THE COURT: Well, let's just stop a second because for example the residents of an incorporated city or town certainly have some governmental powers and rights. They can vote. They, in effect to some extent within the limits of the state laws and constitutions they're government, but the city or town does not by itself have sovereign immunity. The sovereign immunity is a part of the state government in our federal system, and the federal government certainly has sovereign immunity, and the Supreme Court has said that certain -- I have to say that Indian is not inclusive enough, but Native American is a better word for it. Native American groups had an aboriginal sovereignty that carried over. That doesn't appear to be the case here because that was divested. MR. KAARDAL: Yes.
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Post by denney on Aug 4, 2006 0:08:10 GMT -5
THE COURT: And actions that individuals took. MR. KAARDAL: Yes, and we also wanted to point out that we think that the issuance of summonses to the communities is not a lawsuit. We are not arguing that this will result in a judgment claim against the communities, but rather they should be here to allege and assert and defend their interest, and that that would be part of the due process. That's all I have, Your Honor. THE COURT: All right. Mr. Longstreth? MR. LONGSTRETH: Yes, Your Honor. At this point we have not fully briefed the motion for partial summary judgment regarding the 1969 formation, but I certainly strongly concur that the Court should have doubts about whether it has jurisdiction to consider these issues. With respect to the communities, the particular distinction that was made at one point between communities formed at a reservation under the IRA and historical tribes is a distinction that Congress acted on and held or passed an act that says that distinction should not be followed. I think it's sort of a directive to the Department of Interior that they should not take any action, or it basically reverses an opinion of the Solicitor General of the Department of Interior that recognized that distinction, and at some point we obviously can brief that when that becomes relevant. I'm sorry. I don't have the specifics with me here, so the United States' position is that these three communities are no different from other tribes within the United States with respect to all of their rights including sovereign immunity, but obviously we can address that, and the tribes can very well address that if you choose to issue a summons through a motion to quash. The only other issues I wanted to address at this point is that it's our view certainly that members of the communities do have notices of the case. I know that Plaintiffs have indicated in their papers in the past that the communities, at least the Shakopee Community have sent out notices to their members about the case. And it has definitely been well publicized not only through the Court's notice, but through the media on the issues, so it's our view that that sort of notice is not needed. THE COURT: All right. Thank you. Mr. Kaardal, anything further? MR. KAARDAL: Yes, just one. THE COURT: Certainly. MR. KAARDAL: The Indian Reorganization Act was amended in 1998, and the relevant amendment, Public Law 100-581 ƒu 101 removed the residing on the reservation text of the 1934 Indian Reorganization Act, but at a specific savings clause stating nothing in this Act is intended to amend, revoke or affect any tribal constitution by law or amendment, ratified or approved prior to this Act. So the approval of the Shakopee constitution in 1969 and its residency on a reservation basis exist, and our argument is from its inception, the United States Department of Interior has breached its fiduciary responsibilities causing monetary damages, a lack of collection, loss of funds. And since the Court previously had only judged a breach since 1980, and the United States' defense to that very breach at its inception is the 1980 Act, this is a critical claim for the Plaintiffs and the Intervenors because if the breach started in '69, then the 1980 Act can't be a defense. Thank you, Your Honor.
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Post by denney on Aug 4, 2006 0:08:44 GMT -5
THE COURT: All right. We will take that under consideration. Now, we have one set of issues left, and that is participation by Joseph Goodthunder and one other, Dennis Prescott. Mr. Gaskins? MR. GASKINS: Yes, Your Honor. Thank you. THE COURT: Now, with your moving papers, there was not an appended brief. Is that correct? MR. GASKINS: Yes, Your Honor. Your order in this case has prohibited the filing of a brief without permission from you first. THE COURT: Well, that's true, but usually what happens is you proffer a brief with the application or motion. All right. Let's just put that aside. MR. GASKINS: Well, Your Honor, we would have proffered a brief, but the line in your order that says, "Any person or entity seeking to file briefs or memoranda as amicus in this case in the future must specifically seek leave from the Court to do so at least 21 days in advance of the filing, and any entity seeking to file papers of amicus must be represented by counsel." THE COURT: Well, let me just say that the idea was, the 21 days was you would file your motion with an appended brief, and that would give the parties to the case 21 days in effect to have briefing on that particular motion before the Court acted to either give leave for the filing or not. I'm sorry there was a misunderstanding. MR. GASKINS: Okay. Your Honor, we completely misapprehended the intent of your order, and we thought you were trying to prevent people from filing briefs you had to read that you didn't want to. THE COURT: Well, there's a difference between submitting a brief as an addendum to a motion and actually filing a brief. You couldn't file brief without leave is what the Court had in mind, but you could certainly submit one appended to a motion, but we'll clear up that little misunderstanding. MR. GASKINS: Okay. Your Honor, I apologize for that. Dennis Prescott and Joseph Goodthunder as two elected members of the five-person Lower Sioux Community Council, seek to aid the Court in the determination of whether the Lower Sioux Indian Community is a person of standing in the case, and we think that it is important to present views not otherwise presented to the Court on the issue of standing. One of the presumptions is that (a) the Lower Sioux Indian Community is not a person with legal capacity to be sued in that it has sovereign immunity. That is a fundamental and underlying issue which we know understand we should brief to the Court as to the reason for that; b) the Lower Indian Sioux Community as a result of not being able to be sued should not be brought in as a party defendant under the name of a party plaintiff, and whether the Lower Indian Sioux Community should be seeking intervention as a party plaintiff is a question of government that the Court should defer to that community. There is current litigation underway that indicates that the Lower Indian Sioux Community should not be attempting to intervene as a party plaintiff, and we think this Court should not decide that issue until the Lower Indian Sioux Community has decided it. I'm sorry, the Lower Sioux Indian Community. With respect to the issue of standing as a party plaintiff, the Court's jurisdiction is to award money damages in a case brought by or against the United States of America. This is a case brought against the United States by individuals of various tribes, not by the tribes themselves. Hence, the Court cannot exercise its jurisdiction to award damages to the Lower Sioux Indian Community in particular, and consequently the Lower Sioux Indian Community does not have standing within the jurisdiction of the Court to collect. It may have an interest. If so, an amicus brief is proper, but intervention as a party is not. Now, I have only briefly stated this issue, and all we are seeking really at this point is the right to give the Court a brief on the issue, and I apologize that we didn't already give you one. THE COURT: Well, we'll overcome that misunderstanding. Mr. Magnuson? MR. MAGNUSON: Thank you, Your Honor. These two individuals have no more unique perspective or interest in this litigation than any other member of the Lower Sioux Community. There was a hotly contested election where participation by the community in this litigation was a central issue. Ninety percent of the community members voted. The slate of three who constitute the quorum, a majority, of the council ran on a platform that they were going to get the community into this litigation if they could. If you accept amicus submissions from these two individuals who do not speak for the government of Lower Sioux, then you might as well expect to receive amicus submissions from anybody who is a community member. You laid out the requirements for amicus participation. Those requirements are not met here. The issues that he proposes, legal capacity to be sued, whether 114(b) summonses can be issued are going to be fully briefed by, presumably if you grant the 114(b) summonses, the other two communities. There is one voice for the Lower Sioux now. It's the duly elected government, and they have spoken. Thank you. THE COURT: Thank you. Mr. Kaardal? MR. KAARDAL: Your Honor, I indicated in the Plaintiffs' papers a conditional objection. Our conditional objection was based on if the summons were issued to individual members, that would include the two movants, and so if that were to occur, then I think the amicus curiae part would be redundant, and so we believe that this is a good case where you have a split in a community. I've identified splits at Shakopee and at Prairie Island along similar and different lines, and if we don't summon each of the members, we're going to have these amicus briefs, and the case isn't going to be wrapped up the way it should, and so that's my conditional objection. THE COURT: All right.
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Post by denney on Aug 4, 2006 0:09:27 GMT -5
MR. KAARDAL: That if a summons is issued, then this motion should be denied. THE COURT: Thank you. Mr. Longstreth? MR. LONGSTRETH: Your Honor, we in the past have not taken a position opposing or endorsing amicus filings, and we don't here either. THE COURT: All right. Thank you. Now, to correct the prior misunderstanding that arose, it seems appropriate to provide for submission of a proposed brief amicus curiae or as amici because there are two, and the Court would propose that such a brief be submitted, not filed, on July 28. MR. GASKINS: Okay. Thank you, Your Honor. THE COURT: Now, the Court would propose that the parties and Mr. Magnuson respond to the motion by Mr. Gaskins on behalf of Messrs. Prescott and Goodthunder on or before August 4, and that you, Mr. Gaskins, have an opportunity to reply on or before August 9, and that way we'll have briefing on whether an amicus filing should be allowed with a full understanding of what's at issue, and we don't have that now. MR. GASKINS: I appreciate that, Your Honor. THE COURT: Is that schedule reasonably satisfactory to everyone? We don't want this case to drag on. Mr. Magnuson? MR. MAGNUSON: Your Honor, the responses that you anticipate from my clients among others will address not the substantive merits as presented, but the appropriateness of amicus participation, correct? THE COURT: That's correct MR. MAGNUSON: Thank you very much. THE COURT: All right. Now, we could caution, Mr. Gaskins, that the amicus filing should address the propriety of intervention of the Lower Sioux and not address particular matters dealing with the governance of the Lower Sioux Community as such. MR. GASKINS: Okay. THE COURT: Do you understand what I'm driving at? MR. GASKINS: I do, Your Honor. THE COURT: Just the criteria for intervention, and whether they have been satisfied. That's all, and I'm tempted to put a page limitation on it, but I'm not going to do that. MR. GASKINS: Your Honor, I'm fully cognizant of your praise of the brevity of briefs that preceded us. THE COURT: All right. It's just that there are one or two interested persons in this case, and we really do have to keep a reasonable organization here, and we're really only dealing with party issues at this point. We're not dealing with -- MR. GASKINS: Tribal governance. THE COURT: That's correct. I was going to say other matters, but the other matters certainly include tribal governance. MR. GASKINS: Right. THE COURT: Well, tribal is not exactly the right word for it in this instance, but anyway. Now, are there any other matters that we ought to address while we're assembled? MS. EMERSON: Your Honor, this is Ms. Emerson.
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Post by denney on Aug 4, 2006 0:09:55 GMT -5
THE COURT: Yes. MS. EMERSON: And I accidently disconnected myself earlier and later rejoined. I'd like you to know that with regard to Issue 3? THE COURT: Yes. MS. EMERSON: The parties that I represent which is one group, Francine Garreau, we would be in the first category of descendants that are lineal descendants of somebody on the 1886 census. THE COURT: All right. That helps. Thank you very much, Ms. Emerson. MS. EMERSON: Thank you. THE COURT: Anything else? MR. FOSTER: This is Wood Foster in Minneapolis. Your Honor, as a newcomer or new member of the Court I'm wondering just about a simple technical matter here. Just this morning for the first time I received about 30 or 40 electronic notices of filing, but they are not electronic filings that I can look at, and I see that about half the attorneys are receiving these electronically, and about half are listed as not receiving them electronically. And I'm wondering if the Court is going to put together a comprehensive service list or whether the Court is contemplating moving this to electronic filing in view of the large number of parties? THE COURT: That was what I was going to comment about after we addressed whether any party or any applicant to be a party had any additional matters. MR. FOSTER: I apologize for -- THE COURT: No, no. That's fine. I'm glad you raised it. Mr. Longstreth? MR. LONGSTRETH: I just wanted to address one issue which was just whether in your view the stayed motions for partial summary judgment will become unstayed automatically or we can await direction from the Court on that? THE COURT: Once we have sifted through the pending motions, the party motions, then I think the parties can confer and decide because we'll do our best with the pending motions and not try to specify a path. The Court might have views, but the parties might have better views, so I'm a little reluctant just to say at this point. MR. LONGSTRETH: Okay. I had one other issue which was just to clarify our understanding of the John Doe procedure; we haven't responded to all of the filings made under a John Doe status, but to date the government has been provided under seal the real true names of the John Doe Plaintiffs. And it's our expectation that that would be how we proceed, and I've sort of addressed that with some of the Plaintiffs who have discussed the John Doe issue with me, but wanted just to make clear to everybody that that's our expectation, and if anyone disagrees, we appreciate hearing from them. THE COURT: All right. Thank you, Mr. Longstreth, and on that point we have a protective order in place, and if that protective order in the view of any party or applicant to be a party needs to be adjusted or amended, the Court would be happy to entertain that. MS. WALKER: Yes. Your Honor, this is Liz Walker. On that -- what I wanted to find out today if the protective order was now in place, and we were under that. I don't have any objection to, and I'm having a little bit more trouble hearing Mr. Longstreth, but if I understood what he was raising is that at some point the government would need to see the names which I've discussed with him which is fine. We just wanted to keep it between the Court and the government at some point when that might have be verified, but not for all the other parties. THE COURT: Well, exactly, and what you ought to do is take a look at the protective order and work out with Mr. Longstreth and Mr. Kaardal whether any adjustments in your view should be made to that protective order. MS. WALKER: All right. I have not seen that. I am getting some things from your offices electronically, and I've got Mr. Kaardal's fax, but I'm not receiving everything electronically. Most things are coming to me in the mail, and I am on Pacer, but I haven't been getting electronic notices. THE COURT: Well, we did the best in working with the clerk's office to get the docket up to date as of this morning, but I don't know if we succeeded in that effort. I would not stake my life on the result, and I would not want to anyway, but we will endeavor to not only get the docket up to date so that people who have access to Pacer may examine the docket entries. We are not yet an electronic filing case. To be honest about it, the Court wanted to wait until we sorted through the party issues before making this an electronic case, and I had in the back of my mind that as soon as we addressed the party issues we would make this an electronic case. But before we do that, we would go over with the clerk the state of the docket in terms of the parties and counsel to make sure that it squares with our records and with your submissions, and we would anticipate a ruling in due course. And we would anticipate after a ruling on the various party motions that we will endeavor to get a date when the clerk's office might convert this case to an electronic case, and once we do that, they will usually pick a date. Especially in a case like this, they will usually pick a date several weeks further from the time that is chosen. They will issue notice to counsel. They will give counsel a chance to be qualified, and then we will hope to not only have at that point a listing of parties, but a listing of counsel that is correct. And if it's not correct, then we hope and ask and request that you note any errors by an appropriate filing with the Court, but that ought to ease not only future filings, but it ought to ease service because service would occur automatically. If there's any objection to that method, it would be helpful to hear it now. MR. MOHRMAN: Your Honor? THE COURT: Yes, Mr. Mohrman. MR. MOHRMAN: By dealing with the parties, you mean dealing with the intervention motions? THE COURT: Yes. Well, also the whole set. We have the Cermak motions, the amendments to your complaint, the summons issues. MR. MOHRMAN: Right. But you're not saying to wait electronic filing until after we deal with them when these parties are in the case whether they should stay in as parties? THE COURT: No. MR. MOHRMAN: Okay. THE COURT: No, when we deal with the constellation of motions that we've addressed today, then we expect that this case ought to be made electronic for the convenience of everyone involved. MR. MOHRMAN: Okay. It'd be wonderful. The cases I'm involved in, electronic filing is great. Works well. THE COURT: Right. Because you don't have service problems, and you don't have notice problems, you aren't delayed in the mail. Now, is there anyone participating on the telephone who thinks that that would be a bad idea? ALL: No. THE COURT: All right. It might help us get organized. Is there anything further? MR. ZEPHIER: Your Honor? This is Robin Zephier. THE COURT: Yes? MR. ZEPHIER: I just had a couple of questions for the Court. What is the Court's direction on the fact that we have just a small number of individuals in a family group that were left off our original filing? Would you suggest filing an amended? THE COURT: Mr. Montana had raised that and Mr. Thompson had raised that. I think that what you need to do is move to amend promptly your application for intervention and your attached complaint and show good cause why the adjustments are being made after July 12. MR. ZEPHIER: Okay. And one other thing, Your Honor. I had a conversation with Mr. Longstreth several weeks ago involving the government's documents which were subject to the Privacy Act protection order, and at that time since we were intending upon intervening, he discussed the matter with the Agency and they were reluctant to release any documents to us. But now since we are a part of this class that has moved to intervene, I'd just like the Court's direction on that whether or not we would be qualified by acknowledging the Privacy Act protective order to receive those documents from the government. THE COURT: At this point, Mr. Zephier, you're still representing a group of applicants for intervention. Until you get to be a party in the case, that probably is not a good idea, but I think depending on whether or not the Court grants your application for intervention, if you are granted intervention, you might address that with a different status with Mr. Longstreth, and you might get farther. Mr. Montana? MR. MONTANA: Yes, Your Honor. So intervenors are not part of the class as of yet? THE COURT: No. Well, there's not a class unfortunately. MR. MONTANA: So then that means that Mr. Kaardal's clients are not part of the class either because you have not set the elements or the standards that we have to reach as Intervenors or Plaintiffs to be part of the beneficiary class. THE COURT: That's not necessarily so because we have a distinction between those persons who were identified on Mr. Kaardal's second amended complaint. Those persons are parties. We have not yet acted affirmatively to grant the revised third amended complaint. MR. MONTANA: But they're not determined to be per se part of the beneficiary class because that determination has not been made. THE COURT: The determination as to whether or not they're lineal descendants has not been made, but for jurisdictional purposes, there is a sufficient allegation that they are lineal descendants; that it passes muster for purposes of Rule 12 and makes them parties. Now, I commend to your attention a case called Fisher, 402 F.3d. I've forgotten the exact page. It's a Federal Circuit case that deals with the sufficiency of a complaint to basically provide the Court with jurisdiction over a party. I have jurisdiction over Mr. Kaardal's named Plaintiffs in the second amended complaint. MR. MONTANA: But not the third. THE COURT: Not the third. MR. MONTANA: So how long will we know before -- taking under submission obviously whether or not each one of our motions are going to be granted or not? THE COURT: That's right. And if I were to grant let's say, Mr. Montana, your motion, then your persons, your group, would be Plaintiff Intervenors, and they would have party status in the case. MR. MONTANA: Right. THE COURT: The Court would have jurisdiction over them. MR. MONTANA: And they have privy to those documents? THE COURT: Well, that we would have to work out. We might have to adjust the order that was entered. We must maintain the Privacy Act protection. MR. MONTANA: Thank you, Your Honor. THE COURT: Does that help? Mr. Longstreth, do you have any commentary? MR. LONGSTRETH: No, Your Honor. THE COURT: Mr. Kaardal? MR. KAARDAL: Yes, just two notes about the proposed intervenors. With respect to the stay issue on the partial summary judgment we see many procedures that need to occur before we make a motion to do that. We don't want to rush things. The motions to intervene need to be decided upon. If so, the answers to the complaint in intervention need to be filed, and then it seems at some point after that that we would move to lift the stay. On the John Doe question from Ms. Walker, I just wanted to mention that there is the Privacy Act protective order, but then there's an earlier one regarding anonymous Plaintiffs, and so that's the one to look for. Thank you. THE COURT: Yes. Let's just clarify. There is an order specifically directed toward anonymous Plaintiffs, and that actually arose early in the case, so we could find it on the docket, but you won't have any trouble identifying that. One of the reasons the Court put a fairly prompt schedule on briefing the question of the amicus participation of Messrs. Prescott and Goodthunder is that the Court doesn't plan on taking forever to address these motions. MS. WALKER: Your Honor, this is Liz Walker. I had a question before we get off this subject, and I seem to get it summarized at the end what you're doing today, but I guess I had a little trouble following the debate and argument around addressing some of the issues about summonsing the communities. My impression was that part of Mr. Kaardal's motions for summary judgment had been stayed, and are going to be decided at a later time. Is that correct? THE COURT: No. MS. WALKER: Okay. THE COURT: The summons issues are part and parcel of the party issues, and will be addressed. MS. WALKER: Okay. That's the part I was having trouble following, and I wanted to make sure where we were on that issue. THE COURT: That's where we are. MS. WALKER: So you've decided to summons the communities? THE COURT: No. MS. WALKER: No? That's what I was wondering, and I hated to interrupt you. Sometimes the phone on my end is going in and out. I've overseas, so I didn't want to interrupt the flow. THE COURT: No. Let's just put it this way. The motion to summons the two communities, that is not the Lower Sioux, but Shakopee and Prairie Island is part and parcel of the issues that we've argued today and that will be decided in due course along with the other party issues that we also addressed today. MS. WALKER: Okay. THE COURT: Let's see. Anything else? The Court appreciates the patience of everyone. I had anticipated this might take three hours. It took three hours and 14 minutes, but I think everyone has done quite well, and the Court commends all involved especially with the number of persons affected and interested in this particular case, and we hope that that cooperation and consideration and courtesy, indeed graciousness, continues. With that, with a couple of addenda here for future submissions, amendments of applications to intervene and briefing of the motion on amicus filings, these cases are submitted. We're in adjournment. THE CLERK: All rise. (Whereupon, at 1:15 p.m., the hearing in the above-entitled matter was concluded.) // // // // // // // // // REPORTER'S CERTIFICATE
DOCKET NO.: 03-2684L CASE TITLE: Wolfchild v. United States HEARING DATE: July 18, 2006 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: July 18, 2006
Mona McClellan Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-
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