Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SHELDON PETERS WOLFCHILD, et al., No. 03-2684-L Plaintiffs v. Hon. Charles F. Lettow SECOND AMENDED COMPLAINT IN INTERVENTION To add newborn and correct names (Of Parties moving to Intervene)

UNITED STATES Defendant,

Plaintiffs, listed in the attachment hereto, ("Walker John Does 1 through 30, and Walker Minor John Does 1 through 8") file this second amended complaint as part of their Motion to amend complaint, and entry Motion for a Protective Order, to add newborn minor John Doe Plaintiff and to correct names, in the above styled case Sheldon Peters Wolfchild, et al. v. United States ("Wolfchild") pursuant to RCFC 24 (c) and 40.2 (b). JURISDICTIONAL STATEMENTS

1.

Pursuant to the Court's order dated October 27, 2004, Plaintiffs in the Wolfchild

action filed a Second Amended Complaint in the U.S. Court of Federal Claims pursuant to jurisdiction granted under 28 U.S.C. sections, 1491, 1505 et. Seq., in order to recover damages for Defendant's trust mismanagement and breach of fiduciary duties. Plaintiffs listed above as John Does, anonymous plaintiffs, in the Amended Complaint filed here incorporate these

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jurisdictional statements and hereby plead the same causes of action on similar facts and grounds as follows. 2. Pursuant to the Court's order dated October 27, 2004, and the Courts subsequent

Order dated December 16, 2005, the Plaintiffs herein, move the Court to use its powers under 28 U.S.C. Sections 1491 (a)(2) and issue an order 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 the Interior that the Plaintiffs as lineal descents 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 to each an inventory as of November 28, 1969 and annual trust accountings from November 28, 1969 forward; and (3) directing the Secretary of the Interior to ensure that the Plaintiffs herein receive all monetary benefits and rights and privileges associated with being Indian Class Beneficiary of about 950 acres of the Shakopee, Prairie Island and Lower Sioux Reservations. PARTIES/INDIAN CLASS BENEFICIARY/1886 LANDS 3. Anonymous Plaintiffs herein, bring this action on behalf of themselves and minor

children. Plaintiffs do not seek class certification of this litigation but rather agree to a RCFC 14 procedure to notify other descendents of their right to participate as plaintiffs in this case. The corrected names of plaintiffs and the minor children, including one newborn, as of January, 9, 2007, are listed in the attached here to as John Does and Minor John Does: 4. The Minnesota lands held in trust by the United States for the loyal

Mdewakantons is commonly referred to as the "1886 Lands" which are approximately 950 acres of the Shakopee, Prairie Island and lower Sioux reservations as published in the Federal Register

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in 1982. Eastern States: Transfer of Lands to Be Held by the United States in Trust for Certain communities of the Mdewakanton Sioux in Minnesota, 47 Fed. Reg. 34050 (August 5, 1982). 5. Defendant is the United States that pursuant to the 1934 Indian Reorganization

Act, recognized the Lower Sioux, Prairie Island and Shakopee Communities governments through their governing documents.

FACTS 6. On or about 1885, Mdewakanton Indians loyal to the United States government

during the 1862 Sioux Conflict entered into a contract with the United States. Under the contract, the United States would establish a trust for the benefit of the loyal Mdewakanton Indians and their descendants, the Plaintiffs herein. 7. The United States acquired the "1886 lands" in the counties of Scott, Redwood,

Dakota, Goodhue and Wabasha in trust for "the use and benefit of the Indians in Minnesota belonging to the Mdewakanton Band of Sioux Indians, who have resided in Minnesota since May 20, 1886". The 1886 Lands were acquired pursuant to Acts of the U.S. Congress approved June 29, 1888 (25 Stat. 217, 228-229), March 2, 1889 (25 Stat. 980, 992-993) and August 19, 1890 (26 Stat. 336, 349). 8. The United States acquired the "1886 Lands" in counties of Scott, Redwood,

Dakota, Goodhue and Wabasha in trust for "the use and benefit of the Indians in Minnesota belonging to the Mdewakanton Band of Sioux Indians, who have resided in Minnesota since May 20, 1886" and "have severed their tribal relations." The 1886 lands were acquired pursuant to Acts of the U.S. Congress approved June 29, 1888 (25 Stat. 217, 228-229), March 2, 1889 (25 Stat. 980, 992-993) and August 19, 1890 (26 Stat. 336, 349). This agreement created an express

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trust and trust corpus. The people on the May 20, 1886 census and their lineal descendants are the Indian Class Beneficiary of the express trust. 9. After the 1934 Indian Reorganization Act was enacted, the United States

government recognized community governments at Prairie Island and Lower Sioux reservations. In 1969, Shakopee was recognized by the United States government that was also situated on 1886 lands. COUNT 1 TRUST MISMANAGEMENT 10. 11. Paragraphs 1 through 9 are incorporated herein by reference. As trustee of all the Indian trust lands at Shakopee, Prairie Island

and Lower Sioux, the United States has the following duties, to the members of the Indian Class Beneficiary to (1) acknowledge their beneficiary status; (2) 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) ensure that trust proceeds from all reservation land are distributed as equally as practicable among all of the trust beneficiaries of the reservation lands; and (4) ensure that the pro-rated share of the proceeds attributable to the trust would accrue to the Indian Class beneficiary alone, and no others. 12. The United States has violated all its statutory and other fiduciary dutiesa

ssociated with being a trustee for 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.

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13.

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. 14. 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 III SEPARATELY-PLED CLAIMS FO MINOR PLAINTIFFS 15. Pursuant to the Court's order dated October 27, 2004, claims for minor plaintiffs

are assumed into Count 1. COUNT IV CLAIM FOR ATTORNEY'S FEES 16. their entirely. 17. Pursuant to 28 U.S.C. section 2412 (b) the Equal Access to Justice Act, prevailing All of the allegations of this Complaint are incorporated herein by reference in

parties against the United States are entitled to reasonable attorney's fees and related costs. 18. If the Plaintiffs 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. For damages to be paid by the United States to the Plaintiffs.

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2.

For all litigation costs, expenses and expert witness fees and reasonable attorney's fees allowed by law.

3. 4.

For prejudgment interest. For an order under 28 U.S.C. section 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 the 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 accounting; and (3) directing the Secretary of the Interior to ensure that the Plaintiffs receive all the benefits associated with being an Indian Class Beneficiary of about 950 acre of the Shakopee, Prairie Island and Lower Sioux Reservation.

5.

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

Dated: August 20, 2007

Respectfully Submitted:

By:___/s/ Elizabeth T. Walker__ Elizabeth T. Walker Walker Law LLC 127 South Fairfax Street Alexandria, Virginia 22314 Telephone: 703.838.6284 Facsimile: 703.842.8458 [email protected] Attorney for the Plaintiffs

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