Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) SHELDON PETER WOLFCHILD, et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant, ) ) Bonnie Rae Lowe, et al., Descendants of ) Joseph Graham, et al., ) ) Plaintiffs in Intervention, ) )

Case No. 03-2684L Hon. Charles F. Lettow

AMENDED COMPLAINT IN INTERVENTION: DESCENDANTS OF JOSEPH GRAHAM, ET AL. Plaintiffs in Intervention ("Graham Intervenors"), identified in paragraph 4 below, acting on behalf of themselves and (as specified below) on behalf of the minor children named herein and others born during the pendency of this suit, as contemplated by this Court's Order of October 27, 2004 and August 6, 2007, make the following allegations and claims pursuant to RCFC 24(c): 1. The jurisdictional and fact allegations contained in the Fourth Amended

Complaint on file in the captioned matter [Docket 407], are hereby incorporated by reference in this Complaint in Intervention as though fully set forth herein. 2. To the extent inconsistent withor supplemental tothe allegations in the Second

Amended Complaint, the facts and findings contained in this Court's rulings commonly referenced as "Wolfchild I" [35], "Wolfchild II" [99] and "Wolfchild III" [250] are also

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incorporated by reference in this Amended Complaint in Intervention, as though fully set forth herein. 3. To the extent additional allegations of jurisdiction and/or fact are contained in a

subsequent Complaints filed and approved prior by this Court, such allegations are incorporated by reference in this Amended Complaint in Intervention as though fully set forth herein. 4. The Graham Intervenors, claiming descendancy from Joseph Graham, who is

listed on the "1886 Census," and/or possible dual or separate descendancy from others, are listed on Amended Exhibit A hereto, which is by reference made a part hereof. The amendments to Exhibit A relate only to children born since original intervention. 5. Graham Intervenors are prepared, at a time and place to be determined by the

Court, to present all documents necessary to establish individual entitlement of each Graham Intervenor to the status of Indian Class Beneficiary and/or individual relief under the claims asserted herein. 6. To the extent legally permitted, and consistent with the allegations in paragraph

13 hereof, Graham Intervenors seek, to the fullest extent permitted by law and ruling, to protect the rights of other descendants of Joseph Graham and others who have not yet received notice of this action or otherwise taken affirmative steps to establish lineage and protect their rights. This reservation and request is in keeping with the allegation herein that one of the fiduciary duties of the United States in this case is to affirmatively identify, notify and inform the members of the Class of the existence and characteristics of the trust, as well as their trust beneficiary status and their rights. 7. Graham Intervenors are permitted to appear in this case through separate counsel

by reason of a statement to that effect in the Court-approved Notice permitting intervention.

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8.

All facts and related allegations pertaining to the original plaintiffs in this case

pertain also to Graham Intervenors. 9. Graham Intervenors claim an interest relating to the property and trust that is the

subject of this action, and further claim that the disposition of this action may as a practical matter impair or impede their ability to protect such interest. 10. Graham Intervenors assert they are entitled to status as members of the "Indian

Class Beneficiary." 11. Graham Intervenors further assert that questions of law and fact pertaining to

Graham Intervenors are so closely related to questions of law and fact pertaining to the named plaintiffs in this case that Graham Intervenors are entitledand should be permittedto intervene at this time. COUNT I Trust Mismanagement (Breach of Trust, Breach of Fiduciary Duty) 12. 13. Graham Intervenors restate and reallege the above allegations as if fully set forth. As trustee of all the Indian trust lands at Shakopee, Prairie Island and Lower

Sioux, the United States has the following duties, among other duties, to the members of the Indian Class Beneficiary: (1) to acknowledge their beneficiary status; (2) to identify, notify and inform the members of the class of the existence and characteristics of the trust, their trust beneficiary status and their rights; (3) to ensure that the income, profits and proceeds from all reservation land (including but not limited to per-capita payments from casino profits and other revenues) are distributed as equally as practicable among all of the trust beneficiaries of the reservation lands and (4) to ensure that the pro-rated share of the income, profits and proceeds attributable to the 1886 Lands would accrue to the Indian Class Beneficiary alone, and no others.

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14.

The United States has violated its statutory and other fiduciary duties associated

with being a trustee of the Shakopee, Prairie Island and Lower Sioux reservation lands by misidentifying the trust beneficiary and by failing to acknowledge the beneficiary status of the Indian Class Beneficiary. 15. The United States has violated its fiduciary duty by failing to identify, notify and

inform the members of the Indian Class Beneficiary of the existence and characteristics of the trust, their trust beneficiary status and their rights. 16. The United States has violated its fiduciary duty by failing to ensure that the

income, profits and proceeds from all reservation businessesincluding per-capita payments from casino profitsare distributed equally as practicable among all of the trust beneficiaries of the reservation lands. 17. The United States has violated its fiduciary duty by failing to ensure that the share

of the income, profits and proceeds attributable to the 1886 Lands would accrue to the Indian Class Beneficiary alone, and no others. 18. The United States has violated its fiduciary duty by permitting the Shakopee

community and its members to violate the entitlements, rights and privileges of the plaintiffs as members of the Indian Class Beneficiary. These United States' violations began with the

Department of Interior's initial approval in 1969 of the Shakopee constitution and original membership list. These violations continue today. 19. Since 1980, the United States has violated its fiduciary duty by permitting the

Prairie Island community and its members to violate the entitlements, rights and privileges of the plaintiffs as members of the Indian Class Beneficiary.

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20.

The United States has violated its statutory and fiduciary duties under federal

statutes including but not limited to the 1988 Indian Gaming Regulatory Act, 25 U.S.C. §2701, et seq. The United States failed to protect the Indian Class Beneficiary's interests (vis-à-vis the communities and their members) when approving or permitting state-tribal gaming compacts; tribal ordinances and policies regarding gaming, per-capita payments and membership; casino management contracts; expenditures of net casino revenue; and per-capita distributions. 21. The United States has violated its fiduciary duty by failing to collect rents and

other revenues attributable to the 1886 Lands which would accrue to the Indian Class Beneficiary alone, and no others. 22. In violation of the United States' duties under the above-described trust, many of

the plaintiffs have received no use, benefit or privilege from the 1886 Lands or from the Shakopee, Prairie Island or Lower Sioux reservationsalthough the Communities and members of the three Communities are wrongfully receiving millions every year. 23. The United States' mismanagement of the 1886 Lands and breach of fiduciary

duties is the proximate cause of damage to the Indian Class Beneficiary in an amount in excess of $10,000. COUNT II Separately-Pled Claims of Minor Plaintiffs 24. Pursuant to the Court's order dated October 27, 2004, claims of minor children

have been subsumed into Count I. COUNT III [This Count is intentionally omitted.]

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COUNT IV Claim for Attorneys' Fees 25. 26. Graham Intervenors restate and reallege the above allegations as if fully set forth. Pursuant to 28 U.S.C. §2412(b), the Equal Access to Justice Act, prevailing

parties against the United States are entitled to reasonable attorney's fees and related costs. 27. If the Graham Intervenors prevail in this lawsuit against the United States, they

further request a court order awarding attorneys' fees and costs against the United States as permitted by law. PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray for judgment from the Court as follows: 1. 2. 3. For an order permitting intervention by Graham Intervenors. For damages to be paid by the United States to the Plaintiffs. For all litigation costs, costs, expenses and expert witness fees and reasonable attorney's fees allowed by law. For prejudgment interest. For an order under 28 U.S.C. §1491(a)(2) for such other and further relief as the Court deems to be proper and just including but not limited to the following: (1) directing the Secretary of Interior that the Plaintiffs as Lineal Descendants of the May 20, 1886 Minnesota Mdewakanton census are hereby restored to class beneficiary status; (2) directing the Secretary of the Interior to create and maintain a list of trust beneficiaries and to send each an annual trust account; and (3) directing the Secretary of Interior to ensure that the plaintiffs receive all the benefits and privileges associated with being Indian Class Beneficiary of about 950 acres of the Shakopee, Prairie Island and Lower Sioux Reservation. For an order directing the provision of further notice to members of the Indian Class Beneficiary as necessary to fulfill any fiduciary obligation of the United States.

4. 5.

6.

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7.

For such other and further relief as the Court deems to be proper and just.

Dated: August 20, 2007. By: ____________________________________ Wood R. Foster, Jr. SIEGEL, BRILL, GREUPNER, DUFFY & FOSTER, P.A. 1300 Washington Square 100 Washington Avenue South Minneapolis, MN 55401 (612) 339-7131 (612) 339-6591 (facsimile) Attorneys for the Graham Intervenors
37-HSF-8/20/07-24467/Graham

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Exhibit A
Amended Complaint in Intervention: Descendants of Joseph Graham, et al. LAST NAME FIRST NAME MINOR/DEPENDENT CHILDREN

Amiotte Blaze

Boatner (nee Connors) Bordeaux Bordeaux Brenner (nee Craven) Buckner Buckner Burritt Burritt Burritt Burritt Burritt Burritt Burritt

Bobbi A. Sheye (fka Sheyenne Belinda Decory-Keen & Sheyenne Belinda Burgess) Venus Chrystal Graham Nathan L. Michelle Timothy W. Winifred (Wyndy) Carrie Ernest Howard Lori Robin R. Tashina William

Sarah Alma DeCory-Keen

Unborn child due 9/07 Telly White Eyes Crayton White Eyes Travis Michael Brenner Caspian Buckner Michael S. Buckner William Burritt

Cone

Kimberly Rae

Louis James Scott Kadence JayLynn Doyle Marissa Burritt Hailey Burritt Brendan Burritt Amanda Lee Cone Sa'Vannah J. Cone Alyssa E. Graham Jane Graham John Sulaca Jared Sulaca Shawn Dontrail Connor Jamal Robert Earl Turner

Connor Craven Craven Craven Craven Craven Curry DeCory DeCory DeCory

Viola Gus Ray Kelli Kyle Patrick William Theodore W. William B. Russell H. Aimee Alex C.

Sammuel Craven Terri Leigh Craven

Victoria Joelle Swift

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Exhibit A
Amended Complaint in Intervention: Descendants of Joseph Graham, et al. LAST NAME FIRST NAME MINOR/DEPENDENT CHILDREN

DeCory, Jr. Dowty Ewing (nee Snyder) Farmer

Kermit M. Ernestine Graham Tiffany Elizabeth R. Kauley

Fraser

Jeremie R.

Fraser Gague Gallegos Garrity

Raeona L. Joseph Theresa Marie Eric W.

Connor Ewing Paxton Gerald Ewing Heaven Lee Fuller Mia Lowe Farmer Gypsy Rose Farmer Chance J. Fraser Asia L. Fraser Lorraina M. Fraser Jonnirae A. Fraser Cassius A. Fraser Caleb H. Capps

Eric W. Garrity, Jr. Alyssa Kay Danette Garrity Abram Bleu Garrity

Garrity Garrity Garrity Gogue Gogue Gogue-Morakinyo Gonzalez Graham Graham Graham Graham Graham Graham Graham Graham Graham

Marlys Kay (DeCory) Shane F. Adam P. Jennifer Vernaline Joline Julian David Elizabeth Glayton D. Howard Dean Jaslyn N. Jessica Julie R. Mario W. Melissa J. Michael L.

Emily Grace AllenbaughGarrity Saharrah Gogue Sekou Gogue Cela Charisse GogueMarakinyo

Wyatt Lee Graham Teresa Leigh Graham Melchizedek G. J. Graham DeSneiges C. P. Graham

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Exhibit A
Amended Complaint in Intervention: Descendants of Joseph Graham, et al. LAST NAME FIRST NAME MINOR/DEPENDENT CHILDREN Jaycherie W. Little Isaiah S. Richards Nia R. Bear Eva L. Bear

Graham

Sara Wanbli

Graham Graham Burritt Graham III Graham-Kaulay Gray Green Grimshaw

Wayne Mary B. John Paul Karen K. Julie Mary Jane Young Beverly M.

Austin E. Gray Taylor R. Gray Mason Brady Grimshaw Grady Payton Grimshaw Scarlet Cassidy Grimshaw Rhiannon Elizabeth Groff John Harrison Groff Thomas Lee Kaulay Maria Lynn Hatten Sophia Hatten Florencio Hatten Santino JoaQuin Hatten Andrew Mickangello Keith Spencer Alexa JoLynn Huff Eirik Tor Nilsen Ashley Rae Kaulay Jonathan James Kaulay Joshua Wade Kaulay Alyssa Nicole Kaulay Edward Dell Compton, Jr. Enoch Robert Compton Ethan Elmer Compton Jared Morse Lawrence Bailey Noelle Lawrence Melina Renee Lopez Kylie Jean Lopez Unborn child due 9/07

Groff Gunter Hatten

Chrystal Ann Congreve Brenda Carol Jerrod

Hatten Hildebrand (nee Spencer) Huff (nee Burritt) Jefferis Jefferis-Nilsen Kaulay Kaulay

Teddy Averil Kimberly Dawn Mary Jo Gregory E. Paula T. Charles Jonathan Paul

LaPointe

Renee Joyce

Lawrence Lawrence Lopez (Burritt)

Morse Paul Virginia Monetha

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Exhibit A
Amended Complaint in Intervention: Descendants of Joseph Graham, et al. LAST NAME FIRST NAME MINOR/DEPENDENT CHILDREN

Lowe Lowe Lowe Lowe Lowe Marshall Marshall

BonnieRae Dana K. Steven H. Steven Jared BonnieRae Bobbi Jo Jessica M.D.

Austin Jared Lowe Cameron Reed Lowe Tiffany Marie Lowe Stephanie Nichole Lowe Teigen Quade O'Rourke Arionna Reece O'Rourke Lou Diamond Thomas O'Rourke Deja Navarro Benjamin Joseph Marshall Joseph Francis Marshall Francis Lynn Marshall Austin Francis Mayotte Mary Lynn Enright Devin Moore Ashlyn Moore

Marshall Marshall Marshall, Sr.

Manuel Joseph Tamara R. Joseph F.

Mayotte McAllister Moore Nilsen Nilsen Patton Perry Perry

Robin Heather Marie (Lowe) Nina Brit A. Siri T. Florence A. Graham Suzanne Renee Virginia Sue

Red Bear

Erin K.

Jacob Michael Perry Jade Marie Perry Jonathon Perry Joshua Perry Christopher Francis Red Bear David Wayne Red Bear Quentin Lee Red Bear Chantea Kuya Red Bear

Runnels Runnels Runnels, Jr.

James Raymond Gerry David

Randee Sioux Runnels Shane Michael Runnels Teton Lakota Runnels

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Exhibit A
Amended Complaint in Intervention: Descendants of Joseph Graham, et al. LAST NAME FIRST NAME MINOR/DEPENDENT CHILDREN

Runnels, Jr. Runnels-Richards

Raymond Carmel J.

Aubriana B. Richards Rayne J. Richards Autumn R. Richards Carmen M. Richards Jesse James Runnells Parker William Buckner MariJayne Clare Simmons Sage Louise Snyder Audry Snyder (Minor Child of Mark) Nicholas K. Spencer

Scott Simmons Snyder Snyder Snyder Spencer Spencer Stover (nee Cummings) Thunder Hawk

Lois Connie Jo Dale E. Mark & Andrea Vivian Y. Keith D. Mark Evelyn Elizabeth Hungry Lynda B.

Arianna Thnder hawk Alejandra Thnder Hawk Andrea Thunder Hawk

Toupal Tyon (aka Burritt-Tyon) Vanatta Whipple Whipple White Eyes Wiest Wright Young Young Zurek

Walter W. Joseph Gloria Evelyn Cody Thomas Desiree Karen Waylon L. J. Vernal Douglas L. Ray A. Tamara G.

Cody James Whipple Lashaya Jadis Whipple Gibson Joscelyn White Eyes Gibson RaeLynn Lanae Wiest Hillary Virchow Shenbee Young Joseph Young Martin James Vasquez Kathryn Sophia Lee Zurek