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

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
SHELDON PETERS WOLFCHILD, et al., Plaintiff(s), Vs. UNITED STATES, Defendant, ) ) ) ) ) ) ) ) ) ) ) ) )

MOTION TO REVISE THIRD AMENDED COMPLAINT No. 03-2684L

)
Julia DuMarce; Floyd E. Redwing; ) Lily Renville; Roxanna Red Wing Puchner; ) et al., ) ) Plaintiff(s), ) ) ) Vs. ) ) ) UNITED STATES, ) ) ) Defendant. ) ____________________________________) COMES NOW, the Plaintiff(s) in the above captioned matter by and through their attorneys and moves this Honorable Court based upon "just cause" to allow the revision of their Third Amended Complaint, pursuant to RCFP 15(a) and FCFP 21 based upon the following:

1

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 2 of 10

1.

The Third Amended Complaint filed by the Plaintiff(s) was priority

mailed on January 7, 2007 and received by the Clerk of Court on January 8, 2007 and all allegations, facts and exhibits attached thereto are hereby incorporated by reference, with the exception of Exhibit "K" which is now identified as Revised Third Amended Exhibit "K". 2. The attorneys for the Intervenor(s)/Plaintiff(s) hereby move to omit

additional client(s) listed as Intervenor(s)/Plaintiff(s) on the previously submitted Complaint(s) and Amended Complaint(s) due to lack of substantiating documentation; failure to keep current contact information; failure to abide by the requirements of their attorney retainer agreement and finally, due to the fact that the last six (6) individuals listed are now deceased: Coleman Hairy Chin; Colleen Hairy Chin; Melinda Hairy Chin; Alex Little Eagle; Lucille E. Little Eagle; Allen Little Eagle, Sr.; Allen Little Eagle, Jr.; Joshua Peacock; Ally Thomas; Pamela Three Legs; Robert G. Hawk; Arden Little Eagle; Harry Little Eagle; James Little Eagle; Debbie Martinez; Lein Arpan, Jr.; Melvin M. Thompson, Sr.; Norman Thompson, Sr.; Norma Gonzalez; Thomas Wayne Thompson; Carrie Ann Thompson-Donner; Karlene Denise Thompson; John Wayne Thompson; Sean M. Jackson;

2

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 3 of 10

Kenny Ray Fiddler; Derek James Fiddler; Danielle Adams; Georgia SeeWalker; Joseff L. Bates; Lynelle Bernard; Hope G. Hislaw; Betty Hanson; Clara Zimmerman-Smith; Angela Powers; Pamela M. Brewer; Lianne Brewer; Amber R. Danderand; Celest E. LeBanc; Aja Pashall; Monte Yellow Bird, Jr.; Veloz Mayokok; Diana Lorenzi; Delores Zimmerman; Kyle Merritt; Wanda Flying; Helen Fischer; Jamie E. Messinger; Ardys S. Frias; Arlis Pourier; Stephanie J. Pourier; Lacey J. Pourier; Linda Nichols (Montana); Katherine Sage Montana; Molly M. Montana; Ian C. Montana; Jeremy Johannes; Tyler Johannes; Emerson Mandan; Hazel H. Merritt; Delbert Arpan; Albert Arpan; Christopher Arpan; Michael D. Standing Soldier; Tia Three Legs; Virginia Rietsema; Alexio Little Eagle; Yellowcloud Provencial; Tonia Rich; Robin Rich; Lizette Farlee;

3

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 4 of 10

Geronimo J. Arechiga; Sequoyah St. John; Yvonne St. John Arechiga; Carlos A. Casarez; Jason L. Sazue-McGhee; Pamela F. McGhee; Pamela J. Kersting; Corey Dukes; Kevin Dukes; Kayla Shoestring; Chris Codotte; Jackie Cadotte; Ruby Howard; Calvin Warfield; Joseph Blacksmith; Allen Blacksmith; Wanda Fields Brouse; Ronette Thomas; Darla Miller Rabbit; Nichole Mirreaux; Abby Iron Hawk-Reed; Buckley Iron Hawk-Reed; Jadene Running Hawk; Brenda K. Gitchell; Elsie Gitchell; Antonie Otter Robe Sr.; Loren Ray Jr.; Kevin Payer; Randi Armstrong; Lillian Irons; Michael Metcalf, Sr.; Leonard Metcalf; Michael Metcalf, Jr.; Lyle LaFramboise; Wakinyan Provencial; Krystal White; Aliza Gitchell; Harry R. Harshburger; Darla Miller Rabbit; Anna Shoots The Enemy; Richard Jewett; Marissa Sitting Dog; Angela Shoots The Enemy; Martha Shoots The Enemy; Harry H. White; Elizabeth A. White;

4

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 5 of 10

Thomas J. White; Clarine White; DeNitra White; Marie Jack; Doris Jack; Vinicia Jack; Loyola E. Jack; Arnold Jack; Emerald Jack; Stephanie Jack; Linda M. Lawrence; Travis D. Joseph; Mathew L. Joseph; Ricki White Wolf; Kimberly White Wolf; Daniel L. Red Horse, Jr.; Douglas Zacher; Robert Nichols, Jr.; Richard G. Cadotte; Mona J. Grass-Brown; Lyle D. Nichols; Robert Nichols, Sr.; Richard Dean Varney; Lona L. LeBeau; Rocky Ray Varney; Brenda Kay Crosswhite; Sequoia Crosswhite; Lori St. Pierre; Sean C. Olson; Kathleen Maynard; LuAnn Traversie; Theresa M. Wilson; Lanise Montreal; Carl J. Cadotte; Temple Nichols; Trady Kay Dolphus; Royce Bayless; Randy George Varney; Nicholas J. Grabarek; Trevor J. Grabarek; Ida Zimmerman; Jeanne Bellow; Thomas Redday; Earlynn Redday; Stephanie D. Jack; (Deceased) Celest E. LeBlanc; (Deceased)

5

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 6 of 10

Anna Marie Arrow; (Deceased) Georgelyn Sampson; (Deceased) Shirley Wahle; (Deceased) Jennifer J. St. John. (Deceased) 3. Said names have been removed from the Intervenor(s)/Plaintiff(s) Revised

Third Amended Complaint as well as their minor children's names from Revised Third Amended Exhibit "K". 4. Further, the attorneys for the Intervenor(s)/Plaintiff(s) hereby request that

the Congressional Globe, pp. 514, dated January 26, 1863 be accepted as an Exhibit as marked Exhibit "N", as said document is relevant as to identifying certain loyal Mdewakanton's who assisted the whites during the 1862 up-rising. 5. Further, the following individuals hereby move to be included in this

lawsuit as party plaintiff(s) based upon the fact that they are descendants of scouts found on the 1889 Scout Census by Samual Brown and 1892 Scout Census by S.H. Elrod. 6. Those families as proposed Intervenor(s)/Plaintiff(s) were again under the

false impression and understanding that only the 1886 McLeod and 1889 Henton Censuses were be utilized as substantive indicators of who should and should not be included in this lawsuit. 7. All but the proposed Intervenor(s)/Plaintiff(s) from the Felix Family who

have been previously allowed to intervene are direct descendants of Mdewakanton Scouts listed on the 1889 Samual Brown and 1892 S.H. Elrod Scout lists as identified as Exhibit(s) "D" and "E" attached to the Plaintiff(s) original Complaint in Intervention filed in this matter.

6

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 7 of 10

8.

The Felix family members now intervening in this matter consist of

approximately thirty-three (33) individuals who comprise the first thirty-three names so listed on the proposed Revised Third Amended Complaint in bold lettering. 9. The next two hundred fourteen (214) individuals listed in bold lettering on

the Revised Third Amended Complaint on pp. 15, 16, 17 are individuals who allege they are descendants of Francois L'Angie, Kangiduta, Walk With Owl, Tatehdihewin and William Quinn whose names are found on the 1889 Samual Brown and 1892 S.H. Elrod Scouts Censuses. 10. The next twelve (12) individuals listed in bold lettering are direct

descendants of Sarah DuMarce beginning with the name of Ruth Fischbeck and ending with the name of Alan Miklovich on p. 17 of the Revised Third Amended Complaint who is listed on the 1889 Henton Census, pg. III-21, Prior Lake Settlement, who have been denied representation by the Law Firm of Mohrman & Kaardal 11. The next two-hundred forty-three (243) individuals on pp. 17, 18, 19 listed

in bold lettering allege they are direct descendants of Iron Shield, Kangiduta, Blue Dog, Mazahowaste, Nagiskata, Mazakahomni, Ampetusa and Frank Stay whose names are found on the 1889 Samual Brown and 1892 S.H. Elrod Scouts Censuses. 12. The next three (3) proposed Intervenor(s) on p. 19 of the Revised Third

Amended Complaint, Andrea Kasnetsis, Eric Kasnetsis and Linda K. Walker were under the false understanding that they were being represented by Mr. Jack Pierce and now request to be allowed to intervene. 13. The next one hundred thirty-one (131) individuals on pp. 19-20 of the

Revised Third Amended Complaint, allege that they are direct descendants of Walking

7

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 8 of 10

Hail (Wasukiye), Xavier Frenier, Richard Allen and Paul Mazakutemani all Mdewakantons whose names are found 1889 Samual Brown and 1892 S.H. Elrod Scouts Censuses, who have previously been denied representation by the Law Firm of Mohrman & Kaardal and have recently finalized researching their ancestry and genealogy. 14. The next twenty-six (26) individuals on p. 20 of the Revised Third

Amended Complaint allege they are direct descendants of Wamdi Tanka a Mdewakanton who lived and died in the State of Minnesota during the relevant period of time in relationship to this lawsuit. 15. Beginning with Francis Waukazoo and ending with the name of Phyllis

Waukazoo on p.20 of the Revised Third Amended Complaint , the movants request that the lineal descendant's of Betsey Mary St. Clair be allowed to participate as plaintiff(s) in this matter who were allegedly denied representation by the Pierce Law Firm and have recently found additional documentation to support their claims of inclusion. 16. The finally last forty-two (42) individuals so named on the Revised Third

Amended Complaint beginning with Shirley Abdo Arrow have now been incorporated as part of the listed Intervenor(s)/Plaintiff(s) who have previously requested to be represented by Gary Montana and Ron Volesky, pursuant to a Motion to Substitute Counsel filed hard copy and pursuant to docket no. 422, by order of the Court. 17. As mentioned substantively in the Plaintiff(s) previously filed Motion For

Extension to Intervene, which was denied by order of this Court on July 19, 2006, many of those individuals who now seek to be added to the Third Amended Complaint as party plaintiff(s) were denied representation based upon the criteria set out by Mohrman & Kaardal and attorney Kettering.

8

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 9 of 10

18.

Said criteria set by the law firms of Mohrman & Kaardal and attorney

Kettering utilized solely the 1886 & 1889 Mdewakanton Dacotah censuses and did not include any other relevant censuses or evidentiary documents that are now being considered by this Honorable Court to assure inclusion of all potential plaintiffs in the beneficiary class. 19. As mentioned in the previous Motion to Amend the Second Amended

Complaint, if Mohrman & Kaardal and attorney Kettering are allowed to certify who is and who is not a plaintiff in this case then there exists absolutely no need to have a judge determine issues of fact and how those facts apply to the substantive law relating to which individuals should be included in the beneficiary class. 20. Based upon the foregoing the Plaintiff(s) by and through their attorneys of

record believe "just cause" exists to allow those who desire to file as additional intervenor(s)/plaintiff(s) to enter their names on the Revised Third Amended Complaint of the Plaintiff(s) to assure said individuals are afforded at a minimum the opportunity to submit documentation and be heard as to why they should be considered as beneficiaries to the loyal Mdewakanton of Minnesota. 21. In addition, there is absolutely no evidentiary finding that the present

Plaintiff(s), nor the Defendant will be prejudiced in any manner should the this Motion to Revise the Third Amended Complaint of the Plaintiff(s) be granted by this Honorable Court. 22. The attorney(s) for the DuMarce group believe in good faith that there still

exist numerous individuals who are descendant's of the 1886 McLeod and 1889 Henton Censuses and other source documents.

9

Case 1:03-cv-02684-CFL

Document 435-2

Filed 03/08/2007

Page 10 of 10

23.

Based upon the foregoing the Intervenor(s)/Plaintiff(s) hereby request this

Honorable Court grant their Motion to Amend and to revise their Third Amended Complaint to remove the certain specified names listed herein from the original Complaint and First, Second Amended Complaint; submission of Exhibit "N" identified as Congressional Globe, pp. 514 dated January 26, 1863 and further, based upon the foregoing to add the individuals identified in bold on the Revised Third Amended Complaint. RESPECTFULLY SUBMITTED, dated this 8th day of March, 2007. _ /s/__Gary Montana_______________ Gary J. Montana Attorney at Law N. 12923 N. Prairie Rd. Osseo, Wisconsin 54758 Telephone No. 715.597.6464 Telecopy No. 715.597.3508 Attorney for Intervenor(s)/Plaintiff(s) Lead Attorney To Be Noticed ______/s/ Ron Volesky____________ Ron Volesky Attorney at Law 356 Dakota Ave. So. Huron, South Dakota 57350 Telephone No. 605.352.2126 Telecopy No. 605.352.7871 Attorney for Intervenor(s)/Plaintiff(s)

10