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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NO. 03-2684-L

SHELDON PETERS WOLFCHILD, et al. Honorable Charles F. Lettow Plaintiffs, v. UNITED STATES, Defendant.
Plaintiffs, in Plaintiffs' Second Disclosure of Renaud John Doe Plaintiffs, attached hereto, listed Renaud John Does 0001 through 1110, certain of which are minors. Plaintiffs file this Complaint as part of their Motion to Intervene, and Motion for a Protective Order, in the abovestyled 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

RENAUD PLAINTIFFS' SECOND AMENDED COMPLAINT IN INTERVENTION

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 "Renaud" John Does, anonymous plaintiffs, in the Complaint filed herein incorporate these 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 Court's subsequent

Order dated December 16, 2005, the plaintiffs herein move the Court to use its powers under 28

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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 Minnesota Mdewakanton in 1886 are hereby restored to Indian 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 "Renaud" 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 an RCFC 14 procedure to notify other descendants of their right to participate as plaintiffs in this case. The plaintiffs and the minor children are listed in the attachments and affidavits attached hereto as Renaud John Does. 4. These plaintiffs in Intervention are lineally descended from the "Loyal

Mdewakanton" Indians as described in this Court's orders of October 27, 2004 and December 16, 2005. Hereinafter, individual plaintiffs, and all other persons lineally descended from persons of the Mdewakanton in 1886, are referred to as "Lineal Descendants." 5. The Lineal Descendants own equitable title in lands held in trust by the United States

and commonly referred to as the "1886 Lands," which consist of approximately 950 acres of land legally described as follows:

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(1) T. 114 N., R. 15 W., Fifth Principal Median, Minnesota, Sec. 31, SE ¼ NE ¼, E ¼ SE ¼. (2) T. 115 N., R. 22 W., Fifth Principal Meridian, Minnesota, Sec 22, S ½ NW ¼. N ½ SW ¼; except 1.75 acres in the Southwest corner of the N ½ SW ¼, conveyed by Elizabeth Kinghorn and George Kinghorn, wife and husband, of Scott Co., Minnesota, to the Chicago, Milwaukee, and St. Paul Railway Co., for a right-of-way; the said Railway was formerly known as the Hastings and Dakota Railway; Sec 28, NE ¼ SW ¼; Sec. 33, North 50 acres of the E ¼ NE ¼; and Sec. 34, Commencing at a point on the east line of Section 34 being 60 rods south of the Northeast corner of said Section 34; thence West and parallel with the north line of said section, 60 rods; thence North and parallel with the east line of said section, 26 and 2/3 rods; thence East and parallel with the north line of said section, 60 rods; thence South on the east line of said section, 26 and 2/3 rods to the place of beginning. (3) T. 112 N., R. 35 W., Fifth Principal Meridian, Minnesota, Sec. 1, North fractional half of the NE ¼, SE ¼ NE ¼, E ½ SE ¼, and Commencing at a point 71 rods East of the Southwest corner of the SE ¼ SW ¼ of Section 1; thence North 160 rods, thence East 9 rods; thence South 160 rods; thence West 9 rods to the place of beginning, being part of the East ½ SW ¼ of Section 1. Also commencing at a point 34 rods East of the Southwest corner of the NW ¼ SW ¼ of Section 1; thence North 160 rods; thence East 44 rods, more or less, to the Northeast corner of the SW ¼ NW ¼ of said Section 1; thence South 160 rods to the Southeast corner of the NW ¼ SW ¼ of Section 1; thence West 44 rods, more or less, to the beginning, being part of the NW ¼ SW ¼ and the SW ¼ NW ¼ of Section 1; Sec. 2, N ½ NE ¼, SE ¼ NE ¼, SW ¼ NE ¼, NE ¼ SE ¼, E ½ SE ¼ excepting therefrom 15 acres off the west end of said N ½ NE ¼ taken off by running a north and south line far enough from the West end thereof to make 15 acres, also except a tract described as follows, viz., Commencing at a point 20.01 chains North of the Southeast corner of said Section 2; thence North, 30.71 chains; thence North 74 degrees West, 2.62 chains thence South, 22.5 chains; thence South 74 degrees East, 8.94 chains to the place of beginning. Also except the right-of-way of the Wisconsin, Minnesota and Pacific Railway located across the N ½ NE ¼ of said Section 2, Also, the North 9 acres of Lot 50 or Assignment No. 50; Commencing at the Northwest corner of Lot 50 in Section 2, and running thence South along the west line of said Lot 50, 1292 feet; thence East 303.6 feet, to the east line of said land; thence North along the east line 1292 feet, to the 3

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Northeast comer of said lot; thence West along the north line 303.6 feet to the place of beginning; and Sec. 12, NE ¼ E ½ E ½ NW ¼. (4) T. 113 N., R. 35 W., Fifth Principal Meridian, Minnesota, Sec. 35, Beginning at the Southeast corner of Section 35, and thence running West 8.9 chains; thence running North to the South Bank of the Minnesota River at the water's edge; thence running in an Easterly direction along the South bank of the Minnesota River at the water's edge to a point where the East line of said Section 35 intersects the Minnesota River; thence running South on the east line of said Section 35 to the place of beginning. Except the right-of-way of the Wisconsin, Minnesota, and Pacific Railway over and across the said tract, described as follows to wit: A strip of land 125 feet in width, being 75 feet in width on the southerly side and 50 feet in width on the northerly side of the center line of the main track of said Railway located over and across said tract. The 1886 lands are located in Scott, Redwood, Dakota, Goodhue and Wabasha Counties in the State of Minnesota. On information and belief, the Lineal Descendants also own equitable title in other lands and trusts associated with the Lower Sioux Indian Community, the Shakopee Mdewakanton Sioux Community, and the Prairie Island Indian Community. 6. 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 in 1982. 7. 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. Defendant is trustee of the 1886 Lands in trust for the Lineal Descendants and holds additional lands and property on behalf of the Lineal Descendants. ... ... FACTS 4

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Loyal Indians Contract With United States To Create Trust 8. On or about 1885, Mdewakanton Indians (hereinafter the "loyal 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. 9. Many of the loyal Mdewakanton Indians lacked property in 1885 because the United

States confiscated all Sioux Indian reservation land in 1863 in retaliation for the 1862 Sioux rebellion. 10. The loyal Mdewakanton Indians offered to enter into a contract with the United

States. Under the contract, these Indians remain loyal to the United States and move onto land of the United States' choosing. In exchange, the United States agreed that it would assume certain duties, to include that the United States would purchase land in Minnesota; place the land into trust for the beneficiary class of Mdewakanton Indians and their descendants; manage the land in the best interests of all of the trust beneficiaries; ensure that uses and benefits of the trust land were distributed as equally as practicable among all of the trust beneficiaries; and ensure that the uses and benefits would accrue to the beneficiaries alone, and no others. 11. The United States accepted the loyal Mdewakantons' offer to create an express trust

for the loyal Mdewakanton Indians. 12. The United States and loyal Mdewakanton, by their mutual promises, obligations,

forbearance and reliance, provided consideration for the contract. United States and Loyal Mdewakanton Perform on Contract To Create Express Trust

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13.

In performance of their contractual obligations, the loyal Mdewakanton severed tribal

relations and expressed loyalty to the United States and a willingness to live on the 1886 Lands. 14. In performance of its contractual obligations, 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" 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, 228-29), March 2, 1889 (25 Stat. 980, 992-93) and August 19, 1890 (26 Stat. 336, 349). 15. In performance of their mutual contractual obligations, the United States, as trustee,

assigned the 1886 Lands to members of the loyal Mdewakanton Band of Sioux Indians, the trust beneficiaries, who in turn accepted the assignments. Terms of Express Trust 16. The parties through the above-described contractual agreement created an express

trust with the following terms. 17. 18. The United States was the trustee of the express trust. The loyal Mdewakanton and their lineal descendants are the Indian Class Beneficiary

of the express trust. 19. 20. The trust corpus is the 1886 Lands. The express trust required the United States to perform, among other duties, four

continuing duties after fulfilling its commitment to purchase the 1886 Lands: maintain the 1886 Lands in trust for the beneficiary class of Mdewakanton Indians and their descendants; manage the 1886 Lands in the best interests of all of the trust beneficiaries; ensure that uses and benefits of the

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1886 Lands were distributed as equally as practicable among all of the trust beneficiaries; and ensure that the uses and benefits of the 1886 Lands would accrue to the beneficiaries alone, and no others. 21. After the 1934 Indian Reorganization Act was enacted, the United States government Soon

recognized community governments at Prairie Island and Lower Sioux reservations.

thereafter, the United States purchased additional trust lands (non-1886 lands) that were made part of the Prairie Island and Lower Sioux reservations. The United States had a continuing duty to ensure the Lineal Descendants, among other entitlements, receive a proper and just share of any casino and other business profits and any other revenues that arose from anywhere on Prairie Island and Lower Sioux reservation land. 22. In 1969, Shakopee was recognized by the United States government, but the

Shakopee reservation was only on 1886 lands. It was only after the United States' complete breach of trust began in 1980 that the United States received additional lands in trust that were made part of the Shakopee reservation. The United States had a continuing duty to ensure the Lineal Descendants, among other entitlements, received 100% of any casino or other business profits and any other revenues arising on the Shakopee reservation because 100% of the Shakopee reservation was 1886 Lands before the United States' complete breach of trust began in 1980.

COUNT 1
TRUST MISMANAGEMENT 23. 24. Paragraphs 1 through 22 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, among other duties, to the members of the Indian Class Beneficiary: (1) to acknowledge their beneficiary status; (2) to identify, notify
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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 trust would accrue to the Indian Class Beneficiary alone, and no others. 25. The United States has violated all its statutory and other fiduciary duties

associated 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. 26. 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. 27. The United States has violated its fiduciary duty by failing to ensure that the

income, profits and proceeds from all reservation businesses - including per-capita payments from casino profits - are distributed as equally as practicable among all of the trust beneficiaries of the reservation lands. 28. The United States has violated its fiduciary duty by failing to ensure that the

share of the income, profits and proceeds available to the 1886 Lands would accrue to the Indian Class Beneficiary alone, and no others.
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29.

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. 30. 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. 31. Since 1980, the United States has violated its fiduciary duty by permitting the

Lower Sioux community and its members to violate the entitlements, rights and privileges of the plaintiffs as members of the Indian Class Beneficiary. 32. 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. 33. 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.
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34.

In violation of the United States' duties under the above-described trust, the

plaintiffs have received no use, benefit or privilege from the 1886 Lands or from the Shakopee, Prairie Island or Lower Sioux reservations - although the Communities and members of the three Communities are wrongfully receiving millions every year. 35. 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
BREACH OF CONTRACT 36. Pursuant to the Court's order dated October 27, 2004, a breach of contract

claim as stated in the original plaintiffs' Complaint was dismissed. These Intervening Plaintiffs do not repeat the allegations supporting Count II here, but incorporate plaintiffs' Breach of Contract count, to the extent necessary to preserve such Count on their own behalf, and do not waive and expressly preserve their right to join in any appeal from said order after final judgment is entered.

COUNT III
SEPARATELY-PLED CLAIMS OF MINOR PLAINTIFFS 37. Pursuant to the Court's order dated October 27, 2004, claims for minor

plaintiffs are assumed into Count I.

COUNT IV
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CLAIM FOR ATTORNEY'S FEES 38. All of the allegations of this Complaint in Intervention are incorporated herein

by reference in their entirety. 39. Pursuant to 28 U.S.C. section 2412 (b), the Equal Access to Justice Act,

prevailing parties against the United States are entitled to reasonable attorney's fees and related costs. 40. If the plaintiffs prevail in this lawsuit against the United States they further

request a court order awarding attorney's 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. For damages to be paid by the United States to the plaintiffs; For all litigation costs, expenses and expert witness fees and reasonable

attorney's fees allowed by law; 3. 4. For prejudgment interest; For an accounting of all income, profits, proceeds, and other tangible benefits

arising from the trust corpus that are owed to these Intervening plaintiffs who are Lineal Descendants of the Loyal Mdewakanton Indians from the trust that was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants;

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5.

For a declaration, tied and subordinate to the award of damages and remedy

of accounting to the Lineal Descendants, describing the current and prospective legal rights and privileges owned or possessed by the Lineal Descendants of the Loyal Mdewakanton Indians, which arise from the trust that was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants; 6. For a declaration, tied and subordinate to the award of damages and remedy

of accounting to the Lineal Descendants, describing the current and prospective legal duties and obligations owed to the Lineal Descendants of the Loyal Mdewakanton Indians, by the United States of America, the Lower Sioux Community, the Shakopee Mdewakanton Sioux Community and the Prairie Island Indian Community, which arise from the trust that was created in connection with and as a consequence of the 1888, 1889, and 1890 Appropriation Acts for the benefit of the Loyal Mdewakanton and the Lineal Descendants; 7. 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 1886 Minnesota Mdewakanton 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 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 acres of the Shakopee, Prairie Island and Lower Sioux Reservations.
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8.

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

DATED: August 18, 2007 RENAUD COOK DRURY MESAROS, PA

By:

/s/ Barry P. Hogan James L. Blair Barry P. Hogan One North Central Avenue, Suite 900 Phoenix, Arizona 85004 Telephone: 602.307.9900 Facsimile: 602.307.5853 Email: [email protected] Email: [email protected] Members of the Court of Claims Bar

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